State Responsibility

The General Part

Annexed to UN General Assembly Resolution 56/83 of 2001, the

International Law Commission’s Articles on the Responsibility of
States for Internationally Wrongful Acts put the international law
of responsibility on a sound footing. As Special Rapporteur for the
second reading, James Crawford helped steer it to a successful
conclusion. With this book, he provides a detailed analysis of the
general law of international responsibility and the place of state
responsibility in particular within that framework. It serves as a
companion to The International Law Commission’s Articles on State
Responsibility: Introduction, Text and Commentaries (Cambridge
University Press, 2002), and is essential reading for scholars
and practitioners concerned with issues of international
responsibility, whether they arise in interstate relations, in the
context of arbitration or litigation or in bringing international
claims.
James Crawford is Whewell Professor of International Law at
the University of Cambridge. From 1997 to 2001 he was the ILC
Special Rapporteur on State Responsibility.
CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW

Established in 1946, this series produces high-quality scholarship in the fields of

public and private international law and comparative law. Although these
are distinct legal sub-disciplines, developments since 1946 confirm their
interrelations.
Comparative law is increasingly used as a tool in the making of law at
national, regional and international levels. Private international law is now
often affected by international conventions, and the issues faced by classical
conflicts rules are frequently dealt with by substantive harmonization of law
under international auspices. Mixed international arbitrations, especially those
involving state economic activity, raise mixed questions of public and private
international law, while in many fields (such as the protection of human rights
and democratic standards, investment guarantees and international criminal
law) international and national systems interact. National constitutional
arrangements relating to ‘foreign affairs’, and to the implementation of inter-
national norms, are a focus of attention.
The series welcomes works of a theoretical or interdisciplinary character, and
those focusing on the new approaches to international or comparative law
or conflicts of law. Studies of particular institutions or problems are equally
welcome, as are translations of the best work published in other languages.

General Editors James Crawford SC FBA

Whewell Professor of International Law, Faculty of Law, University
of Cambridge
John S. Bell FBA
Professor of Law, Faculty of Law, University of Cambridge

A list of books in the series can be found at the end of this volume.
State Responsibility

The General Part

James Crawford
University Printing House, Cambridge CB2 8BS, United Kingdom

Published in the United States of America by Cambridge University Press, New York
Cambridge University Press is part of the University of Cambridge.
It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9780521822664
© James Crawford 2013
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2013
Printed in the United Kingdom by CPI Group Ltd, Croydon CR0 4YY
A catalogue record for this publication is available from the British Library
Library of Congress Cataloguing-in-Publication data
Crawford, James, 1948–
State responsibility : the general part / James Crawford SC, FBA, BA, LLB (Adel), DPhil
(Oxon), LLD (Cantab), Whewell Professor of International Law, University of Cambridge,
Former Member of the International Law Commission.
pages cm. – (Cambridge studies in international and comparative law: 100)
ISBN 978-0-521-82266-4 (Hardback)
1. International obligations. 2. Government liability (International law) I. Title.
KZ4080.C73 2013
341.26–dc23
2012049381
ISBN 978-0-521-82266-4 Hardback
Additional resources for this publication at www.cambridge.org/crawford
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
And louder sing
For every tatter in its mortal dress.
W. B. Yeats, ‘Sailing to Byzantium’.
State Responsibility

The General Part

Annexed to UN General Assembly Resolution 56/83 of 2001, the

International Law Commission’s Articles on the Responsibility of
States for Internationally Wrongful Acts put the international law
of responsibility on a sound footing. As Special Rapporteur for the
second reading, James Crawford helped steer it to a successful
conclusion. With this book, he provides a detailed analysis of the
general law of international responsibility and the place of state
responsibility in particular within that framework. It serves as a
companion to The International Law Commission’s Articles on State
Responsibility: Introduction, Text and Commentaries (Cambridge
University Press, 2002), and is essential reading for scholars
and practitioners concerned with issues of international
responsibility, whether they arise in interstate relations, in the
context of arbitration or litigation or in bringing international
claims.
James Crawford is Whewell Professor of International Law at
the University of Cambridge. From 1997 to 2001 he was the ILC
Special Rapporteur on State Responsibility.
CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW

Established in 1946, this series produces high-quality scholarship in the fields of

public and private international law and comparative law. Although these
are distinct legal sub-disciplines, developments since 1946 confirm their
interrelations.
Comparative law is increasingly used as a tool in the making of law at
national, regional and international levels. Private international law is now
often affected by international conventions, and the issues faced by classical
conflicts rules are frequently dealt with by substantive harmonization of law
under international auspices. Mixed international arbitrations, especially those
involving state economic activity, raise mixed questions of public and private
international law, while in many fields (such as the protection of human rights
and democratic standards, investment guarantees and international criminal
law) international and national systems interact. National constitutional
arrangements relating to ‘foreign affairs’, and to the implementation of inter-
national norms, are a focus of attention.
The series welcomes works of a theoretical or interdisciplinary character, and
those focusing on the new approaches to international or comparative law
or conflicts of law. Studies of particular institutions or problems are equally
welcome, as are translations of the best work published in other languages.

General Editors James Crawford SC FBA

Whewell Professor of International Law, Faculty of Law, University
of Cambridge
John S. Bell FBA
Professor of Law, Faculty of Law, University of Cambridge

A list of books in the series can be found at the end of this volume.
State Responsibility

The General Part

James Crawford
University Printing House, Cambridge CB2 8BS, United Kingdom

Published in the United States of America by Cambridge University Press, New York
Cambridge University Press is part of the University of Cambridge.
It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9780521822664
© James Crawford 2013
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2013
Printed in the United Kingdom by CPI Group Ltd, Croydon CR0 4YY
A catalogue record for this publication is available from the British Library
Library of Congress Cataloguing-in-Publication data
Crawford, James, 1948–
State responsibility : the general part / James Crawford SC, FBA, BA, LLB (Adel), DPhil
(Oxon), LLD (Cantab), Whewell Professor of International Law, University of Cambridge,
Former Member of the International Law Commission.
pages cm. – (Cambridge studies in international and comparative law: 100)
ISBN 978-0-521-82266-4 (Hardback)
1. International obligations. 2. Government liability (International law) I. Title.
KZ4080.C73 2013
341.26–dc23
2012049381
ISBN 978-0-521-82266-4 Hardback
Additional resources for this publication at www.cambridge.org/crawford
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
And louder sing
For every tatter in its mortal dress.
W. B. Yeats, ‘Sailing to Byzantium’.
 Contents

Preface and acknowledgements page xxi

Abbreviations xxiv
Table of cases xxxii
Table of treaties and other instruments lv
Reports of Special Rapporteurs lxxiii

Part I The framework of responsibility

1 Historical development 3
1.1 Introduction 3
1.2 Intimations of responsibility in early international law
writings 4
1.2.1 Italian precursors of Grotius: Belli and Gentili 4
1.2.2 Grotius: civil law obligations with no equivalent
in the law of nations 8
1.2.3 Zouche: breaches of treaties 11
1.2.4 Pufendorf: a perfect system of natural law 12
1.2.5 Van Bynkershoek: the honour of the sovereign
and pacta sunt servanda 15
1.2.6 Wolff and Vattel: elements of a law on
responsibility 17
1.3 Nineteenth- and early-twentieth-century developments 20
1.3.1 Nineteenth-century writers: from Wheaton
to Heffter 20
1.3.2 The early twentieth century: Triepel and Anzilotti 22
1.3.3 Borchard and Eagleton and the legacy of
the Great War 24

vii
viii contents

1.3.4 The Hague Codification Conference of 1930 28

1.3.5 The Harvard Draft Research 32
1.3.5.1 The 1929 Draft 32
1.3.5.2 The 1961 Draft 34
1.4 The work of the International Law Commission 35
1.4.1 The first reading: 1949–1996 35
1.4.2 The second reading: 1998–2001 39
1.4.3 Responses to the 2001 Articles 42

2 Key concepts 45
2.1 The modern synthesis 45
2.1.1 The ILC’s codification 45
2.1.2 The modern concept of state responsibility 49
2.2 The language of state responsibility 51
2.2.1 Typology of state responsibility 51
2.2.2 Prerequisites for the invocation of responsibility 54
2.2.2.1 The debate over ‘damage’ and ‘injury’ 54
2.2.2.2 The principle of ‘objective responsibility’ 60
2.2.3 ‘Delictual capacity’ 62
2.2.4 ‘Responsibility’ and ‘liability’ 62
2.2.5 Rights and obligations 64
2.2.5.1 ‘Primary’ and ‘secondary’ obligations 64
2.2.5.2 ‘Obligations erga omnes’ and
related concepts 66
2.3 Invocation and admissibility 67
2.3.1 Invocation of state responsibility: formal
requirements 67
2.3.2 Certain questions as to the admissibility of claims 68
2.3.2.1 Nationality of claims 69
2.3.2.2 Exhaustion of local remedies 69
2.3.2.3 Waiver 70
2.3.2.4 Acquiescence 72
2.4 Diplomatic protection and its analogues 74
2.4.1 Public and private rights in international law 74
2.4.2 The institution of diplomatic protection 75
2.4.3 Functional and other protection (by international
organizations or third states) 77
2.4.3.1 International organizations 77
2.4.3.2 Nationals of third states 78
 contents ix

2.5 Responsibility of non-state actors 79

2.5.1 Individual criminal responsibility 79
2.5.2 Corporate criminal responsibility 80
2.5.3 International law claims against individuals
and groups 81
2.6 Responsibility and accountability 83
2.7 The modern synthesis and its future 85
2.7.1 Governmental criticisms 85
2.7.2 Scholarly criticisms 87
2.7.3 A convention on state responsibility? 90

3 Corollaries of breach of an international obligation 93

3.1 Introduction 93
3.2 Breach of obligation and its corollaries 94
3.2.1 The components of a breach 94
3.2.2 The substantive corollary: reparation 94
3.2.3 The procedural corollary: claim and
countermeasure 95
3.2.4 Dispute settlement in claims of responsibility 95
3.3 The applicable law in claims of responsibility 99
3.3.1 Overview 99
3.3.2 International law as the governing law 100
3.3.3 The lex specialis principle and ‘self-contained
regimes’ 103
3.3.4 Claims of responsibility arising under peremptory
norms 106
3.3.5 State responsibility and the United Nations
Charter 106
3.3.6 Other legal consequences of internationally
wrongful acts 108

Part II Attribution to the state

4 Organs and entities exercising governmental authority 113
4.1 General principles of attribution 113
4.1.1 The process of attribution and its discontents 113
4.1.2 Bases of attribution in the ARSIWA 115
4.2 Organs of the state 116
4.2.1 Responsibility for the acts of state organs 116
x contents

4.2.2 Defining an ‘organ’ 118

4.2.2.1 The executive 119
4.2.2.2 The legislature 120
4.2.2.3 The judiciary 121
4.2.2.4 Federal and other internal subdivisions 123
4.2.3 De facto organs 124
4.3 Entities exercising governmental authority 126
4.3.1 Attribution of acts of private parties 126
4.3.2 Defining ‘governmental authority’ 129
4.3.3 ‘Empowered by the law’ of the state 132
4.4 Organs placed at the disposal of another state 132
4.4.1 Defining ‘disposal’ 133
4.4.2 Additional requirements 135
4.5 Ultra vires and personal acts 136

5 Direction or control by the state 141

5.1 Development of the law 141
5.1.1 Early cases 141
5.1.2 The work of the International Law Commission 143
5.2 Persons acting on state instruction 144
5.3 Persons acting under direction or control 146
5.3.1 ‘Effective control’ versus ‘overall control’ 146
5.3.2 Nicaragua 147
5.3.3 Tadic´ 149
5.3.3.1 The Trial Chamber 149
5.3.3.2 The Appeals Chamber 151
5.3.4 Bosnian Genocide 154
5.4 State responsibility and terrorism 156
5.4.1 The alleged inadequacy of the effective control test 156
5.4.2 Alternate bases of state responsibility with
respect to terrorism 157
5.5 Attribution and state-owned corporations 161

6 Other cases of attribution 166

6.1 Introduction 166
6.2 Exercise of governmental authority in the absence
of the state 166
6.2.1 Foundations of ARSIWA Article 9 166
6.2.2 Operation of the provision 168
 contents xi

6.3 Responsibility for the acts of insurgents 170

6.3.1 ARSIWA Article 10 in the International Law
Commission 170
6.3.2 Responsibility where the insurgency creates
a new government 174
6.3.3 Responsibility where the insurgency creates
a new state 176
6.3.4 Responsibility where the insurgency fails 179
6.4 Ex post facto adoption of conduct 181
6.4.1 ARSIWA Article 11 in the International Law
Commission 181
6.4.2 Judicial consideration of ex post facto adoption 182
6.4.2.1 The Lighthouses Arbitration 182
6.4.2.2 The Eichmann case 183
6.4.2.3 The Tehran Hostages case 183
6.4.2.4 The Gabčíkovo-Nagymaros case 186
6.4.3 The operation of ARSIWA Article 11 187
6.5 State organs and international organizations 188
6.5.1 Early theory and practice of international
organizations 190
6.5.2 Peacekeeping policy and DARIO Article 7 193
6.5.3 Judicial consideration of contributing state
responsibility 197
6.5.3.1 Behrami and Saramati 197
6.5.3.2 Al-Jedda 200
6.5.4 The standard of ‘effective control’ 203
6.5.4.1 Defining the basic concept 203
6.5.4.2 Positive and negative conceptions of
‘control’: the Dutchbat case 205
6.5.5 Distinction between attribution of acts and
secondary responsibility with regard to
international organizations 210

Part III Breach

7 Breach: the material element 215
7.1 Introduction 215
7.2 The autonomy of the primary obligation 216
7.3 Acts and omissions 217
7.4 The classification of obligations 219
xii contents

7.4.1 Obligations of conduct and result 220

7.4.2 Due diligence and obligations of prevention 226
7.4.3 Substantive and procedural obligations 232
7.5 Specific issues 232
7.5.1 Anticipatory breach 233
7.5.2 Illusory obligations 235
7.5.3 ‘Non-violation complaints’ 238

8 Breach: the temporal element 240

8.1 Introduction 240
8.2 The intertemporal law 241
8.2.1 Applications of the principle 241
8.2.1.1 Island of Palmas and Huber’s restatement 241
8.2.1.2 The intertemporal law and the law of
treaties 242
8.2.1.3 The intertemporal law and the ILC’s
work on responsibility 244
8.2.2 Some qualifications 245
8.2.2.1 Retrospective acceptance of responsibility 245
8.2.2.2 Evolutive interpretation of treaties 246
8.2.2.3 New peremptory norms 250
8.2.3 Termination of the primary obligation 251
8.3 Duration of the breach 253
8.3.1 Instantaneous breaches 254
8.3.2 Continuing breaches 258
8.3.2.1 The concept of continuing breach 258
8.3.2.2 The distinction between instantaneous
and continuing breach 262
8.3.2.3 Completion of the act 264
8.3.3 Composite breaches 265
8.3.3.1 The character of the composite breach 265
8.3.3.2 Determining the scope of the composite
breach 268
8.3.4 Complex breaches 269

9 Circumstances precluding wrongfulness 274

9.1 Justifications and excuses in international law 274
9.1.1 The category of ‘circumstances precluding
wrongfulness’ 274
9.1.2 Termination and suspension of obligations 281
 contents xiii

9.2 General justifications and excuses 283

9.2.1 Consent 283
9.2.2 Self-defence 289
9.2.3 Countermeasures 292
9.2.4 Force majeure 295
9.2.5 Distress 301
9.2.6 Necessity 305
9.3 Further questions 315
9.3.1 Obligations arising under peremptory norms 315
9.3.2 Compensation for material loss 318
9.3.3 The burden of proof 320

Part IV Collective or ancillary responsibility

10 Responsibility in cases of joint or collective conduct 325
10.1 Introduction 325
10.1.1 Historical background: the work of the ILC
and the Institut 326
10.1.2 The influence of private law analogies 328
10.2 Joint and collective conduct by states 333
10.2.1 Attribution to multiple states: the principle of
independent responsibility 333
10.2.2 Implication in the act of another state:
exceptions to the principle of independent
responsibility 336
10.2.3 Conduct of joint organs 339
10.2.4 Other bases for solidary responsibility 341
10.3 Conduct within the framework of international
organizations 343
10.4 Cognate questions 354
10.4.1 Guarantees and indemnities 354
10.4.2 Contribution between persons collectively
responsible 355
10.4.3 International claims involving conduct of
private parties 358

11 Responsibility for breaches of communitarian norms 362

11.1 Introduction 362
11.2 The International Law Commission’s compromise 365
11.3 Invocation of communitarian norms 370
xiv contents

11.4 The relation between communitarian and other norms 376

11.5 Invocation and consequences of breaches of
peremptory norms 378
11.5.1 Defining peremptory norms 378
11.5.2 Consequences of the serious breach of
peremptory norms 380
11.5.2.1 The obligation of non-recognition 381
11.5.2.2 The obligation of non-assistance 385
11.5.2.3 The obligation of co-operation 386
11.6 Future prospects 389
Excursus: international crimes of state 390

12 Ancillary and secondary responsibility 395

12.1 Responsibility of states for the conduct of other states
and international organizations 395
12.1.1 The scope of ancillary or secondary
responsibility 395
12.1.2 The standards of direction and control and
coercion 397
12.2 Aid or assistance in the commission of a breach 399
12.2.1 ILC development and customary status 400
12.2.2 Defining ‘aid or assistance’ 401
12.2.2.1 The terms of ARSIWA Article 16 401
12.2.2.2 Omissions as ‘aid or assistance’ 403
12.2.2.3 ‘Aid or assistance’: general
principles? 405
12.2.3 The ‘subjective’ element of complicity 405
12.2.4 Complicity and the pacta tertiis rule 409
12.2.5 Complicity and international organizations 410
12.3 Direction and control over another state or
international organization 412
12.3.1 The scope and relevance of ARSIWA Article 17 412
12.3.2 Defining ‘direction and control’ 414
12.3.3 Additional considerations 416
12.3.3.1 Knowledge and opposability of
obligation 416
12.3.3.2 Responsibility of the directed state 417
12.3.4 Direction and control of an international
organization 417
 contents xv

12.4 Coercion of a state or international organization 419

12.4.1 Defining ‘coercion’ 419
12.4.2 Other considerations 421
12.4.3 Coercion of an international organization 422
12.5 Member state responsibility for the acts of
international organizations 422
12.5.1 Responsibility of member states 423
12.5.1.1 The basic rule 423
12.5.1.2 Judicial confirmation of the basic rule 424
12.5.2 Exceptions to the basic rule 428
12.5.2.1 Acceptance of responsibility 428
12.5.2.2 Injured party reliance 429
12.5.3 Abuse of the separate personality of
international organizations 430

13 Succession to responsibility 435

13.1 Introduction 435
13.2 The negative succession rule 437
13.2.1 The early authorities 437
13.2.2 Defences and criticisms of the negative
succession rule 438
13.3 Rebutting the negative succession rule: judicial
consideration 442
13.3.1 Lighthouses Arbitration 443
13.3.2 The Gabčíkovo-Nagymaros case 446
13.4 Rebutting the negative succession rule: modern state
practice 447
13.4.1 The role of state practice 447
13.4.2 Succession where the predecessor ceases
to exist 448
13.4.2.1 The reunification of Germany 449
13.4.2.2 The dissolution of the Socialist
Federal Republic of Yugoslavia 451
13.4.3 Succession where the predecessor continues
to exist 452
13.4.3.1 Separation from the Union of Soviet
Socialist Republics 452
13.4.3.2 The independence of Namibia 453
13.5 Conclusions 455
xvi contents

Part V Cessation and reparation

14 Restoration of legal relations after breach 459
14.1 Introduction 459
14.2 Legal effects of the breach 460
14.2.1 The applicable secondary obligations 460
14.2.2 The continuation of the primary obligation 461
14.3 Cessation 461
14.3.1 Wrongful acts that are ‘continuing’ 462
14.3.2 The distinction between cessation and the
continued duty of performance 464
14.3.3 The distinction between cessation and restitution 465
14.4 Assurances and guarantees against repetition 469
14.4.1 The status of the obligation to offer assurances
and guarantees 469
14.4.2 The distinction between assurances and
guarantees of non-repetition and reparation 475
14.4.3 Appropriate assurances and guarantees 476

15 Reparation 480
15.1 The basic principle 480
15.2 ‘Full’ reparation 481
15.2.1 The position taken in the ARSIWA 481
15.2.2 Subsequent case law 483
15.3 The notion of injury 485
15.3.1 Injury defined 485
15.3.2 Material and moral injury 486
15.3.3 ‘Legal injury’? 487
15.4 Questions of causation 492
15.4.1 An expanded rubric 492
15.4.2 Mitigation of damage and reparation 494
15.4.3 Concurrent causes 495
15.4.3.1 The applicable principles 495
15.4.3.2 Hard cases 498
15.4.4 Contribution to the injury 500
15.5 Plurality of injured states 503

16 Remedies 506
16.1 The link between reparation and remedies 506
16.1.1 The available forms of reparation 506
 contents xvii

16.1.2 The right of election 508

16.1.3 A hierarchy of reparation? 509
16.2 Restitution 510
16.2.1 The basic principle 510
16.2.2 The forms of restitution 511
16.2.3 Limitations on the availability of restitution 512
16.2.3.1 Material impossibility 512
16.2.3.2 Disproportionate burden 514
16.2.4 A flexible approach 515
16.3 Compensation 516
16.3.1 The basic principle 516
16.3.2 The practice of the Permanent and
International Courts 518
16.3.3 Quantification of damage 519
16.3.4 Loss of profits 522
16.3.5 Punitive damages 523
16.4 Satisfaction 527
16.4.1 The basic principle 527
16.4.2 Forms of satisfaction 527
16.4.3 Judicial declarations 529
16.4.4 Limitations on the availability of satisfaction 530
16.5 Interest 531
16.5.1 The basic principle 531
16.5.2 Pre-judgment and post-judgment interest
distinguished 533
16.5.3 The period for which interest is payable 534
16.5.4 The rate of interest and mode of calculation 536

Part VI The implementation of responsibility

17 The claims process 541
17.1 Entitlement to claim 541
17.1.1 The injured state 542
17.1.2 Other injured parties 548
17.1.3 Concerned states or other entities 549
17.2 The process of claim 553
17.3 Loss of the right to invoke responsibility 557
17.3.1 Waiver and acquiescence 558
17.3.2 Lapse of time 560
17.3.3 Adjudication and settlement 563
17.3.4 Effects on related or derivative claims 563
xviii contents

18 Claims on behalf of others: diplomatic and functional

protection 566
18.1 Introduction 566
18.2 Diplomatic protection: an overview 567
18.2.1 The character and role of diplomatic
protection 568
18.2.2 Title to protect: the nationality of claims 573
18.2.3 Exhaustion of local remedies 580
18.3 Diplomatic protection and individual and state
invocation 584
18.3.1 Human rights 585
18.3.2 Investment protection 587
18.3.3 Other fields 592
18.4 Functional protection by international organizations
and third states 593

19 Implementation of responsibility by judicial process 598

19.1 Introduction 598
19.2 Jurisdiction in matters of responsibility 599
19.2.1 The Chorzów principle 599
19.2.2 The distinction between cause of action and
applicable law 603
19.2.3 Jurisdiction over counterclaims 609
19.3 Is there a remedial discretion? 615
19.4 Election of remedies 621
19.4.1 The claimant’s right to elect and election in
the course of proceedings 621
19.4.2 Fork-in-the-road clauses 624
19.4.3 The non ultra petita rule 626
19.5 Systematic remedies arising from individual cases 629
19.5.1 The ECHR: Broniowski and its progeny 630
19.5.2 Class actions in investment arbitration:
Abaclat v. Argentina 637
19.5.3 Compensation as an incident of criminal
proceedings 641

20 Invocation in cases involving multiple parties 644

20.1 Introduction 644
20.2 Multiple claimants 645
 contents xix

20.3 Multiple respondents 648

20.4 Intervention by third states 650
20.5 The Monetary Gold principle: ‘indispensable’ third states 655
20.5.1 The scope of the principle 657
20.5.1.1 The Monetary Gold jurisprudence 658
20.5.1.2 Uncertainty of application 660
20.5.1.3 Further questions of scope 664
20.5.1.4 Conclusion 665
20.5.2 Possible exceptions 666
20.5.2.1 Defunct states 666
20.5.2.2 Criminal prosecution 667
20.5.2.3 Waiver 668
20.6 Other procedural incidents 669
20.6.1 Joinder of claims 669
20.6.2 The composition of the bench 671
20.6.3 The rule against double recovery 673

21 Implementation of responsibility by extrajudicial process 675

21.1 Overview 675
21.2 Unilateral self-help measures 676
21.2.1 Retorsion 676
21.2.2 The exception of non-performance (exceptio
inadimpleti contractus) 678
21.2.3 Suspension of obligations 682
21.2.4 Countermeasures by an injured state 684
21.2.4.1 The scope and object of
countermeasures 686
21.2.4.2 Prohibited countermeasures 688
21.2.4.3 Proportionality 697
21.2.4.4 Procedural incidents of
countermeasures 700
21.2.4.5 Termination of countermeasures 702
21.2.5 Collective countermeasures 703
21.3 Issues of responsibility in the Security Council and
other international forums 706

Appendices 712
Appendix 1 ILC Articles on the Responsibility of States for
Internationally Wrongful Acts (2001) 712
xx contents

Appendix 2 General Assembly resolutions concerning

the Articles on State Responsibility for
Internationally Wrongful Acts 724
General Assembly Resolution 56/83, 12 December 2001 724
General Assembly Resolution 59/35, 2 December 2004 725
General Assembly Resolution 62/61, 6 December 2007 726
General Assembly Resolution 65/19, 6 December 2010 727

Appendix 3 ILC Draft Articles on Diplomatic Protection (2006) 728

Appendix 4 ILC Draft Articles on State Responsibility (as proposed

by F. V. García-Amador, 1961) 733

Appendix 5 ILC Draft Articles on State Responsibility (as adopted

on first reading, 1996) 743

Appendix 6 ILC Draft Articles on Responsibility of International

Organizations (2011) 761

Bibliography 778
Index 808
 Preface and acknowledgements

This book grows out of work I was privileged to do as the International

Law Commission’s fifth and final Special Rapporteur on State Responsi-
bility. The State Responsibility project was conceived in the 1920s and
was one focus of the League of Nations Conference for the Codification of
International Law held at The Hague in 1930. That conference failed to
produce any results. Following the creation of the International Law
Commission (ILC) in 1948, the subject was identified as one of the initial
topics for codification, and work on it resumed in 1955. Again, it got
nowhere. The subject was reconceived under the inspired leadership of
Roberto Ago in 1962, worked on (at times intensively, at times sporadic-
ally) in the period 1963–96 under Special Rapporteurs Ago, Riphagen and
Arangio-Ruiz, and completed on first reading in 1996. The second read-
ing process was completed during the years 1998–2001. It saw as its
immediate outcome UN General Assembly Resolution 56/83 of 12 Decem-
ber 2001, which annexed the text of the ILC Articles on the Responsi-
bility of States for Internationally Wrongful Acts (hereafter ARSIWA or
‘the ILC Articles’) and ‘commend[ed] them to the attention of Govern-
ments without prejudice to the question of their future adoption or
other appropriate action’. Three years later there was a further debate,
leading to the adoption by consensus of General Assembly Resolution 59/
35 on 2 December 2004, again deferring any decision on the final form of
the Articles; similar debates occurred in 2007 and 2010. The texts of
these resolutions form Appendix 2. The text of the ILC Articles them-
selves forms Appendix 1.
Subsequently the ILC moved to projects on diplomatic protection
(completed in 2006) and the responsibility of international organizations
(completed in 2010).

xxi
xxii preface and acknowledgements

So far as the responsibility of states is concerned, the present book

covers much the same subject matter as the ILC Articles. It is intended to
provide an analysis and critical review of the present law and its func-
tioning. Inevitably, there were many things the ILC did not say which
need to be said, including matters where the ILC declined to deal with
various issues – for example, the responsibility of states for the acts of
international organizations.
In addition, this book covers certain issues of dispute settlement in
relation to responsibility, and discusses questions concerning the con-
nection between institutions and rules of responsibility, including the
connection between action taken by international organizations, for
example by the UN Security Council under Chapter VII of the UN Char-
ter, and the link between the rules of responsibility and judicial settle-
ment, for example in the context of countermeasures.
Like the ILC’s work, this book does not attempt (except incidentally) to
elaborate on the content of the primary international obligations breach
of which gives rise to responsibility. It thus accepts the distinction
between primary and secondary obligations, if not as fundamental then
at least as a working device to limit the scope of the subject. The
distinction itself and the criticisms that have been made of it are
explored in Chapter 2.
Nor does this book examine in detail special features of the working of
particular regimes in the field of responsibility (e.g. the human rights
regimes, the World Trade Organization), except where this is useful in
order to illustrate or shed light on the general law.
The book incorporates certain material from the author’s four Reports
on State Responsibility and other writings. But the attempt has been made
to synthesise this material, together with subsequent developments and
government comments on the ILC’s work and to reflect on the resulting
debate. At the same time, the work seeks to place the rules of state
responsibility within the framework and dynamic of international law.
***
A large number of people have contributed to this work, directly or
indirectly. They include my colleagues on the ILC in the years
1998–2001 – especially the four chairs of the Drafting Committee, Bruno
Simma, Enrique Candioti, Giorgio Gaja and Peter Tomka, and others
including John Dugard, Gerhard Hafner, Djamchid Momtaz, my ever
faithful adversary and friend Alain Pellet, Robert Rosenstock, Bernardo
Sepúlveda, Chusei Yamada and the late Ian Brownlie. On the Secretariat,
 preface and acknowledgements xxiii

Mahnoush Arsanjani, Virginia Morris and Arnold Pronto were unfail-

ingly helpful. My New York University interns were terrific – especially
Jacqueline Peel and Simon Olleson. The former helped greatly with the
commentaries; the latter became a constant professional companion. At
Cambridge I had a stream of bright and lively graduate students who
stayed on for a year or so as associates. Those who helped with this book
were Anna Cowan, Callista Harris, Cameron Miles, Rowan Nicholson,
Federica Paddeu and Tiina Pajuste. At Cambridge University Press, Finola
O’Sullivan was patience personified. My thanks to all of them.
 Abbreviations

AC Appeal Cases (UK)

ACHR American Convention on Human Rights, 22
November 1969, OAS Treaty Series No. 36
ADP Articles on Diplomatic Protection, ILC Report 2006,
UN Doc. A/61/10
ADP Commentary Commentary to Articles on Diplomatic Protection,
ILC Report 2006, UN Doc. A/61/10
AFDI Annuaire français de droit international
AJIL American Journal of International Law
AJIL Spec. Supp. American Journal of International Law Special
Supplement
AJLH Australian Journal of Legal History
Ann. de l’Inst. Annuaire de l’Institut de droit international
APD Archives de Philosophie du Droit
APIL Australian Practice in International Law
(as published in the Australian Yearbook of
International Law)
Arb. Int. Arbitration International
ARSIWA ILC Articles on the Responsibility of States
for Internationally Wrongful Acts, ILC
Ybk 2001/II(2), 26
ARSIWA Commentary to the ILC Articles on Responsibility of
Commentary States for Internationally Wrongful Acts, ILC Ybk
2001/II(2) 31, reprinted in J. Crawford (ed.), The
International Law Commission’s Articles on State
Responsibility: Introduction, Text and Commentaries
(Cambridge University Press, 2002)
ASIL American Society of International Law

xxiv
 abbreviations xxv

ASIL Proc. American Society of International Law Proceedings

AU African Union
Austrian RIEL Austrian Review of International and European Law
AYIL Australian Year Book of International Law
Berk. JIL Berkeley Journal of International Law
Bevans Treaties and Other International Agreements of the
United States of America, 1776–1949, compiled
under the direction of C. I. Bevans
BFSP British and Foreign State Papers
BGBl Bundesgesetzblatt Jahrgang (Germany)
Brownlie’s Principles J. Crawford, Brownlie’s Principles of Public International
Law (8th edn, Oxford University Press, 2012)
BUILJ Boston University International Law Journal
BVerfGE Bundesverfassungsgerichts (Federal Constitutional
Court, Germany)
BVerwG Bundesverwaltungsgericht (Federal Administrative
Court, Germany)
BYIL British Yearbook of International Law
Cal. Rptr West’s California Reporter
Calif. LR California Law Review
Can. YIL Canadian Yearbook of International Law
CCM Convention on Cluster Munitions
Chicago JIL Chicago Journal of International Law
Chin. JIL Chinese Journal of International Law
CILJ Cornell International Law Journal
CILSA Comparative and International Law Journal of
Southern Africa
CLF Criminal Law Forum
Col. LR Columbia Law Review
Conn. JIL Connecticut Journal of International Law
CPIL Canadian Practice in International Law (as published
in the Canadian Yearbook of International Law)
CPUSIL Contemporary Practice of the United States Relating
to International Law (as published in the American
Journal of International Law)
Crawford, First J. Crawford, First Report on State Responsibility, ILC
Report Ybk 1998/II(1), 1
Crawford, Second J. Crawford, Second Report on State Responsibility,
Report ILC Ybk 1999/II(1), 3
xxvi abbreviations

Crawford, Third J. Crawford, Third Report on State Responsibility,

Report ILC Ybk 2000/II(1), 3
Crawford, Fourth J Crawford, Fourth Report on State Responsibility,
Report ILC Ybk 2001/II(1), 1
CTS Consolidated Treaty Series
DARIO Draft Articles on the Responsibility of International
Organizations, ILC Report 2011, UN Doc. A/66/10, 52
DARIO Commentary to the Draft Articles on the
Commentary Responsibility of International Organizations, ILC
Report 2011, UN Doc. A/66/10, 67
Dep. State Bull. Department of State Bulletin (US)
DJILP Denver Journal of International Law and Policy
Draft Articles ILC Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, as adopted in 1996,
ILC Ybk 1996/II(2), 58
Draft Articles Commentary to the ILC Draft Articles on the
Commentary Responsibility of States for Internationally
Wrongful Acts, as adopted in 1996:
Arts. 1–35 S. Rosenne (ed.), The International
Law Commission’s Draft Articles on
State Responsibility: Part 1, Articles
1–35 (Dordrecht: Martinus
Nijhoff, 1991)
Art. 36(1) ILC Ybk 1983/II(2), 42
Art. 36(2) ILC Ybk 1993/II(2), 54
Arts. 37–9 ILC Ybk 1983/II(2), 42
Art. 40 ILC Ybk 1985/II(2), 25
Art. 41 ILC Ybk 1993/II(2), 55
Art. 42(1)–(2), (4) ILC Ybk 1993/II(2), 58
Art. 42(3) ILC Ybk 1996/II(2), 65
Arts. 43–6 ILC Ybk 1993/II(2), 61
Arts. 47–8 ILC Ybk 1996/II(2), 65
Arts. 49–50 ILC Ybk 1995/II(2), 64
Arts. 51–3 ILC Ybk 1996/II(2), 65
Arts. 54–60 ILC Ybk 1995/II(2), 75

DRC Democratic Republic of the Congo

Duke JCIL Duke Journal of Comparative and International Law
 abbreviations xxvii

ECHR European Convention for the Protection of Human

Rights and Fundamental Freedoms, 4 November
1950, 213 UNTS 221
ECommHR Ybk Yearbook of the European Commission of Human Rights
ECommHR European Commission of Human Rights
ECtHR European Court of Human Rights
EECC Eritrea–Ethiopia Claims Commission
EHRLR European Human Rights Law Review
EJIL European Journal of International Law
EPL Environmental Policy and Law
ETS European Treaty Series
EWHC England and Wales High Court
F.3d Federal Reporter, Third Series (US)
F.Supp. Federal Supplement (US)
GA United Nations General Assembly
Genocide Convention on the Prevention and Punishment of
Convention the Crime of Genocide, 9 December 1948, 78 UNTS
277
Geo. Wash. ILR George Washington International Law Review
GST Transactions of the Grotius Society
GYIL German Yearbook of International Law
Hague Recueil Recueil des cours de l’Académie de droit international
Hastings ICLR Hastings International and Comparative Law Review
HHRJ Harvard Human Rights Journal
HILJ Harvard International Law Journal
HILR Harvard International Law Review
Hous. JIL Houston Journal of International Law
HRLJ Human Rights Law Journal
HRLR Human Rights Law Review
IACtHR Inter-American Court of Human Rights
IBRD International Bank of Reconstruction and
Development (World Bank)
ICC International Criminal Court
ICC Statute Rome Statute of the International Criminal Court,
17 July 1998, 2187 UNTS 3
ICJ International Court of Justice
ICJ Reports Reports of Judgments, Advisory Opinions and
Orders of the International Court of Justice
xxviii abbreviations

ICJ Statute Statute of the International Court of Justice, 26 June

1945, 15 UNCIO 355
ICLQ International and Comparative Law Quarterly
ICSID International Centre for the Settlement of
Investment Disputes
ICSID Convention Convention on the Settlement of Investment
Disputes between States and Nationals of Other
States, 18 March 1965, 575 UNTS 159
ICSID Rev. International Centre for the Settlement of Investment
Disputes Review
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former
Yugoslavia
IDI Institute of International Law (Institut de droit
international)
IELR International Environmental Law Reports
IJGLS Indiana Journal of Global Legal Studies
IL International Lawyer
ILA International Law Association
ILA Rep. Conf. International Law Association, Report of Conference
ILC International Law Commission
ILC Report Annual Report of the International Law Commission
ILC Ybk Yearbook of the International Law Commission
ILDC Oxford Reports on International Law, International
Law in Domestic Courts
ILM International Legal Materials
ILP International Law and Politics
ILR International Law Reports
IOLR International Organizations Law Review
Iran–US CTR Iran–US Claims Tribunal Reports
Is. LR Israel Law Review
Is. YBHR Israel Yearbook of Human Rights
ITLOS International Tribunal for the Law of the Sea
JDI Journal du droit international
JICJ Journal of International Criminal Justice
JIEL Journal of International Economic Law
JORF Journal officiel de la République française
JWIT Journal of World Investment and Trade
JWT Journal of World Trade
 abbreviations xxix

KGZ Kokusaihō gaikō zasshi

LJIL Leiden Journal of International Law
LJN Landelijk Jurisprudentie Nummer (Netherlands)
LNOJ League of Nations, Official Journal
LNTS League of Nations Treaty Series
McNair, Opinions A. D. McNair, 1–3 International Law Opinions (1956)
Md LR Maryland Law Review
Mich. JIL Michigan Journal of International Law
Mich. LR Michigan Law Review
MJIL Melbourne Journal of International Law
Moore, Int. Arb. J. B. Moore, History and Digest of the International
Arbitrations to which the United States has been a Party
(1898), 6 vols.
MPEPIL R. Wolfrum (gen. ed.), The Max Planck Encyclopedia of
Public International Law (Oxford University Press,
2012), available at www.mpepil.com
MULR Melbourne University Law Review
NGO non-governmental organization
NILR Netherlands International Law Review
NJW Neue Juristische Wochenschrift (Germany)
Nordic JIL Nordic Journal of International Law
NRG Nouveau Recueil Général de traités et autres actes relatifs
aux rapports de droit international
NYIL Netherlands Yearbook of International Law
OAS Organization of American States
OAU Organization for African Unity
ODIL Ocean Development and International Law
OJ Official Journal (European Union)
Ok. LR Oklahoma Law Review
PAPhS Proceedings of the American Philosophical Society
PAriS Proceedings of the Aristotelian Society
PBA Proceedings of the British Academy
PCA Permanent Court of Arbitration
PCIJ Publications of the Permanent Court of
International Justice
Pol. YIL Polish Yearbook of International Law
Pub. Ad. Public Administration
QB Law Reports, Queen’s Bench (United Kingdom)
RBDI Revue belge de droit international
xxx abbreviations

RDI Rivista di diritto internazionale

RDIPP Rivista di diritto internazionale privato e processuale
RDISDP Revue de droit international, de sciences diplomatiques et
politiques
Rec. Lebon Recueil des arrêts du Conseil d’État (France)
REDI Revue égyptienne de droit international
RGDIP Revue générale de droit international public (Paris)
RIAA United Nations Reports of International Arbitral
Awards
RJDA Recueil de jurisprudence du droit administratif et du
Conseil d’Etat
Rome Statute Rome Statute of the International Criminal Court,
17 July 1998, 2187 UNTS 3
RQDI Revue Québécoise de Droit International
RSDIE Revue Suisse de droit international et européen
S. Af. YIL South African Yearbook of International Law
S Ct Supreme Court Reporter (US)
SC United Nations Security Council
SCSL Special Court for Sierra Leone
SLT Scots Law Times
Tex. ILF Texas International Law Forum
TIAS Treaties and Other International Acts Series (US)
Tulane LR Tulane Law Review
Tulsa JCIL Tulsa Journal of Comparative and International Law
UCLA JILFA UCLA Journal of International Law and Foreign Affairs
UCLA Pac. Basin LJ UCLA Pacific Basin Law Journal
UKMIL United Kingdom Materials on International Law (as
published in the British Yearbook of International Law)
UKPC United Kingdom Privy Council
UNCC United Nations Compensation Commission
UN Charter Charter of the United Nations
UNCHR United Nations Commission on Human Rights
UNCIO United Nations Conference on International
Organization
UNCLOS United Nations Convention on the Law of the Sea,
10 December 1982, 1833 UNTS 3
UNHCR United Nations High Commissioner for Refugees
UNTS United Nations Treaty Series
US (in case citations) United States Supreme Court
Reports
 abbreviations xxxi

USC United States Code

Utrecht LR Utrecht Law Review
Va. JIL Virginia Journal of International Law
Va. LR Virginia Law Review
VCDR Vienna Convention on Diplomatic Relations, 18
April 1961, 500 UNTS 95
VCLT Vienna Convention on the Law of Treaties, 22 May
1969, 1155 UNTS 331
VUWLR Victoria University Wellington Law Review
Wash. LR Washington Law Review
WLR Weekly Law Reports (United Kingdom)
WTO World Trade Organization
WUGSLR Washington University Global Studies Law Review
Yale JIL Yale Journal of International Law
Yale LJ Yale Law Journal
ZaöRV Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht
 Table of Cases

Aaland Islands Question, (October 1920) LNOJ Spec. Supp. No. 3, 363–4
Abaclat and Ors v. Argentine Republic, ICSID Case No. ARB/07/5, Decision
on Jurisdiction and Admissibility, 4 August 2011, 637–40
Abdullahi v. Pfizer Inc., 562 F.3d 163 (2nd Cir., 2009), 82
Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir., 1996), 82
ADM and Tate & Lyle v. Mexico, (2008) 146 ILR 439, 699
Admissibility of Hearings of Petitioners by the Committee on South West
Africa, ICJ Rep. 1956 p. 23, 109
Aegean Sea Continental Shelf (Greece v. Turkey), ICJ Rep. 1978 p. 3,
243–4, 248
Aerial Incident of 27 July 1955 (Israel v. Bulgaria)
– Memorial of the Government of Israel, 2 June 1958, 504, 648, 674
– Preliminary Objections Oral Hearings, 26 March 1959, 504
– Preliminary Objections, ICJ Rep. 1959 p. 127, 503
Aerial Incident of 27 July 1955 (UK v. Bulgaria), Order of 3 August 1959,
ICJ Rep. 1959 p. 264, 503
Aerial Incident of 27 July 1955 (US v. Bulgaria)
– Memorial of the United States, 2 December 1958, 673
– Order of 30 May 1960, ICJ Rep. 1960 p. 146, 503
Aerial Incident of 3 July 1988 (Iran v. US), Order, 13 December 1989,
ICJ Rep. 1989 p. 132, 656
Affaire des forêts du Rhodope central (fond) (Grèce contre Bulgarie)
(Forests of Central Rhodope), (1933) 3 RIAA 1405, 513, 648
Aguilar-Amory and Royal Bank of Canada (Tinoco Concessions) (UK/Costa
Rica), (1923) 1 RIAA 371, 168, 435–6
Ahmadou Sadio Diallo (Guinea v. DRC)
– Preliminary Objections, ICJ Rep. 2007 p. 582, 578–81, 583–4, 587–8

xxxii
 table of cases xxxiii

– ICJ Rep. 2010 p. 639, 76, 481, 502–3, 508–9, 518–22, 534, 536, 568–9,
593, 619
– Memorial of the Republic of Guinea: Compensation, 6 December
2011, 534
– Compensation owed by the DRC to Guinea, Judgment, 19 June 2012,
619
Air Services Agreement of 27 March 1946 between the US and France
(US/France), (1978) 54 ILR 303; 18 RIAA 417, 292–3, 684–5, 690–1,
697–701, 706
Alabama Arbitration (Great Britain v. US), (1872) 1 Moore, Int. Arb. 45,
101, 117, 176–7, 245, 93
Al-Jedda
– R (Al-Jedda) v. Secretary of State for Defence, [2008] 1 AC 332, 116,
200–5
– Al-Jedda v. United Kingdom, (2011) 147 ILR 107, 116, 349–50, 352–3
Alpha Projektholding v. Ukraine, ICSID Case No. ARB/07/16, 8 November
2010, 537–8
Al-Skeini v. UK, [2011] ECtHR 55721/07, 349–50
Ambatielos (Greece v. UK)
– Preliminary Objection, ICJ Rep. 1952 p. 27, 242–4, 252, 581, 583
– ICJ Rep. 1953 p. 10
– Arbitration (1956) 23 ILR 306, 561–2, 655
American Bell International v. Iran, (1986) 12 Iran–US CTR 170, 161
American Electric & Manufacturing Co., (1905) 9 RIAA 145, 297–8
Amto v. Ukraine see Limited Liability Company Amto v. Ukraine
Anaconda-Iran, Inc. v. Iran et al., Interlocutory Award No. ITL 65-167-3,
(1986) 13 Iran–US CTR 199, 297–8
Anglo-Iranian Oil Co. (United Kingdom v. Iran), Jurisdiction, ICJ Rep.
1952 p. 93, 655
Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), ICJ Rep. 1972 p. 46, 678–9, 695
Applicability of Article VI, Section 22, of the Convention of the
Privileges and Immunities of the United Nations, ICJ Rep. 1989 p. 71,
77–8
Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro)
– Preliminary Objections, ICJ Rep. 1996 p. 595, 96–7, 267, 552
– Counter-Claims, ICJ Rep. 1997 p. 243, 688–9
xxxiv table of cases

– ICJ Rep. 2007 p. 43, 43, 52–3, 96–7, 113–15, 125–6, 143–8, 154, 157–9,
161, 203–4, 210, 218–19, 222–3, 230–1, 266–7, 315–17, 330, 338,
360–1, 375, 380, 394, 401, 403, 407, 449, 473, 481, 498–500, 512–13,
530, 610–11, 617, 667–8
Application of the Interim Accord of 13 September 1995 (former
Yugoslav Republic of Macedonia v. Greece), ICJ, 5 December 2011, 473,
478–9, 530, 675–6, 678, 680–2, 687–8, 700–1
Arab Organization for Industrialization and ors v. Westland Helicopters
Ltd and ors, (1987) 80 ILR 625 (Court of Justice of Geneva); (1988) 80 ILR
652 (Federal Supreme Court), 346, 426–7
Arbitral Award made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua), ICJ Rep. 1960 p. 192, 74
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas,
Inc. v. Mexico, (2007) 146 ILR 445, 294
Armed Activities on the Territory of the Congo (DRC v. Burundi), Order,
30 January 2001, ICJ Rep. 2001 p. 3, 648–9, 663
Armed Activities on the Territory of the Congo (New Application: 2002)
(DRC v. Rwanda), Jurisdiction and Admissibility, ICJ Rep. 2006 p. 6,
377–8, 552, 648–9
Armed Activities on the Territory of the Congo (DRC v. Uganda), ICJ Rep.
2005 p. 168, 71, 113, 119, 144, 147, 154, 284–9, 372–3, 380, 473, 477–8,
525, 611, 618, 648–9, 659–60, 662–3, 690–1
Arrest Warrant of 11 April 2000 (DRC v. Belgium), ICJ Rep. 2002 p. 3, 467,
512, 515–16, 530, 584, 628–9
Asian Agricultural Products v. Sri Lanka, (1990) 4 ICSID Reports 250, 523
Asylum (Columbia/Peru), ICJ Rep. 1950 p. 266, 99, 609, 651–2
Attorney-General v. Nissan, [1970] AC 179, 208
Attorney-General (Israel) v. Eichmann, (1961) 36 ILR 18 (District Court);
(1962) 36 ILR 277 (Supreme Court), 183, 187
Australia – Measures Affecting the Importation of Salmon (Article 21.5),
WT/DS18/RW, 20 March 2000, 124
Austria v. Italy, [1961] ECommHR 788/60, 373
Avena and Other Mexican Nationals (Mexico v. US)
– Memorial of Mexico, 20 June 2003, 463–4
– Provisional Measures, ICJ Rep. 2003 p. 77, 124
– ICJ Rep. 2004 p. 12, 476–9, 584–5, 592–3
Ayyash et al., Special Tribunal for Lebanon Case No. STL-11-01/I,
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy,
Homicide, Perpetration, Cumulative Charging, 16 February 2011,
160–1
 table of cases xxxv

Bankovic´ v. Belgium, (2001) 123 ILR 94, 198, 349–50

Banks of Grisbadarna (Norway v. Sweden), (1909) 11 RIAA 147, 73
Barcelona Traction, Light & Power Company, Limited (Spain v. Belgium),
Second Phase, ICJ Rep. 1970 p. 3, 40–1, 66, 76–7, 161–3, 364, 368–9,
377, 380, 389–90, 542, 547–52, 568, 570, 577–80, 587–8, 670–1, 693
Bau v. Thailand, UNCITRAL, 1 July 2009, 537–8
Beagle Channel
– Original Award, (1977) 21 RIAA 57, 95
– Proposal of the Mediator, Suggestions and Advice, (1980) 21 RIAA 243, 95
Behrami v. France, (2007) 133 ILR 1, 116, 197–204, 207, 346–54
Belgium v. Senegal see Questions Relating to the Obligation to Prosecute
or Extradite
Beric´ v. Bosnia and Herzegovina, [2007] ECtHR 36357/04, 202–3, 352–3
Bernardus Henricus Funnekotter and Ors v. Republic of Zimbabwe, ICSID
Case No. ARB/05/6, 22 April 2009, 638
Beshiri v. Albania, [2006] ECtHR 7352/03, 262
BG Group v. Argentina, UNCITRAL, 24 December 2007, 537–8
Black Tom see Lehigh Valley Railroad Co., Agency of Canadian Car and
Foundry Co., Ltd v. Germany
Blake v. Guatemala, [1998] IACtHR Ser. C No. 36, 262–3
Blečic´ v. Croatia, [2006] ECtHR 59532/00, 262
Bolivian Railway (UK/Venezuela), (1903) 9 RIAA 445, 174–5
Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Order,
19 August 1987, ICJ Rep. 1987 p. 182, 650
Border and Transborder Armed Actions (Nicaragua v. Honduras), Order,
27 May 1992, ICJ Rep. 1992 p. 222, 650
Bosnian Genocide case see Application of the Convention on the
Prevention and Punishment of the Crime of Genocide
Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland,
[2006] ECtHR 45036/98, 346–7, 349–50, 431–4
Brannigan v. Davison, [1996] 3 WLR 859, 133–4
Brazilian Loans, (1929) PCIJ Ser. A No. 21, 298–9
British Claims in the Spanish Zone of Morocco (UK/Spain), (1925) 2 RIAA
615, 158, 170, 179–80, 297–8, 627
Broniowski v. Poland, [2004] ECtHR 31443/96; [2005] ECtHR 31443/96
(Friendly Settlement), 630–7
Brough v. Australia (2006) UN Doc. CCPR/C/86/D/1184/2003, 474
Caire see Estate of Jean-Baptiste Caire v. Mexico
Cameroon v. Nigeria see Land and Maritime Boundary between
Cameroon and Nigeria
xxxvi table of cases

Canada – Measures Affecting the Importation of Milk and the

Exportation of Dairy Products (Article 21.5, II), WT/DS103/AB/RW2, 17
January 2003, 118
Cargill Inc. v. Mexico, (2009) 146 ILR 642, 294
The Caroline (1837), 2 McNair, Opinions 211, 309–12
Case No. A/18, (1984) 75 ILR 175, 575–6
Cashin and Lewis v. The King, [1935] Ex CR 103, 304–5
Castillo Petruzzi v. Peru, [1999] IACtHR Ser. C No. 52, 474
Cayuga Indians, (1926) 6 RIAA 189, 561–2
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua), Oral Proceedings, 11 January 2011, CR 2011/1, 512–13
Certain German Interests in Polish Upper Silesia, (1926) PCIJ Ser. A No. 7,
120
Certain Norwegian Loans (France v. Norway), Preliminary Objections, ICJ
Rep. 1957 p. 9, 71, 580–4
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections, ICJ Rep. 1992 p. 240, 68, 71, 73, 253, 256, 327–31, 333,
339–41, 356–7, 554–5, 559–62, 649–50, 657–62, 664–5, 670–1
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France), ICJ Rep. 2008 p. 177, 530, 617–18
Charles S. Stephens and Bowman Stephens v. Mexico (US v. Mexico),
(1927) 4 RIAA 265, 142
Chevreau (France/Great Britain), (1931) 2 RIAA 1113, 132–3, 297–8
Chevron Corp. and Texaco Petroleum Co. v. Ecuador, PCA Case
No. 34877, Partial Award on the Merits, 30 March 2011, 537–8, 590
Chorzów Factory see Factory at Chorzów
Claims of Italian Nationals Resident in Peru, (1901) 15 RIAA 395, 116–17
CME v. Czech Republic
– Partial Award, (2001) 9 ICSID Reports 121, 481
– Final Award on Damages, (2003) 9 ICSID Reports 264, 535–6
CMS Gas Transmission Company v. Argentina, Annulment, (2007) 14
ICSID Reports 251, 101, 313, 625
Colozza and Rubinat, (1985) 81 ILR 73, 222–3
Commonwealth v. Tasmania, (1983) 68 ILR 266, 235–8
Compañía de Aguas del Aconquija SA and Compagnie Générale des Eaux
(Vivendi) v. Argentina
– First Award, (2000) 5 ICSID Reports 296, 100, 102–3, 123, 624–5
– First Decision on Annulment, (2002) 6 ICSID Reports 340, 102–3, 624–5
– ICSID Case No. ARB/97/3, Second Award, 20 August 2007, 103, 537–8
Consorts Hovelaque, [1984] Rec. Lebon 726, 178
 table of cases xxxvii

Continental Casualty v. Argentina, ICSID Case No. ARB/03/9, 5 September

2008, 537–8
Continental Shelf (Libya/Malta), Application to Intervene by Italy, ICJ
Rep. 1984 p. 3, 652–4, 659–60, 665, 670–1
Continental Shelf (Tunisia/Libya), Application to Intervene by Malta, ICJ
Rep. 1981 p. 3, 652–3, 672
Corfu Channel (UK v. Albania)
– Preliminary Objections, ICJ Rep. 1948 p. 15, 655
– ICJ Rep. 1949 p. 4, 117, 158, 217–18, 327, 330–1, 335–6, 342–3, 404–5,
496–8, 518–19, 519–20, 530, 619, 626–7, 656, 690–1
– Compensation, ICJ Rep. 1949 p. 244, 517–18, 533
Corn Products International Inc. v. Mexico, Decision on Responsibility,
(2008) 146 ILR 581, 293–4, 684, 687–8
Customs Régime between Germany and Austria, (1931) PCIJ Ser. A/B No.
41, 283–4
Cyprus v. Turkey, (2001) 120 ILR 10, 42-6, 384–5
Cysne (Responsibility of Germany for acts committed subsequent to 31
July 1914 and before Portugal entered the war) (Portugal/Germany),
(1930) 2 RIAA 1035, 292–4, 494, 498–9, 685
Dallal v. Bank Mellat, [1986] QB 441, 571–2
De Becker v. Belgium, (1962) 33 ILR 205, 261–2
De Brissot and Ors (US/Venezuela), (1889) 3 Moore, Int. Arb. 2967, 296–7
Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/US), ICJ Rep. 1984 p. 246, 72, 74, 429, 559–60
Demirel v. Stadt Schwäbisch Gmünd, Case 12/86, [1987] ECR 3719, 344
Demopoulos v. Turkey, [2010] ECtHR 46113/99, 384–5
Denmark v. Turkey, Friendly Settlement, [2000] ECtHR 34382/97, 374
Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir., 2003), 571–2
Diallo see Ahmadou Sadio Diallo
Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission on Human Rights, ICJ Rep. 1999 p. 62,
77–8, 116–17, 121, 594–5
Différend Héritiers de SAR Mgr le Duc de Guise (France v. Italy), (1951) 13
RIAA 150, 123, 416
Dispute Concerning Access to Information under Article 9 of the OSPAR
Convention (Ireland v. UK), Final Award, (2003) 126 ILR 334, 605
Diversion of Water from the Meuse (Netherlands v. Belgium), (1937) PCIJ
Ser. A/B No. 70, 678–9
Dix (US/Venezuela), (1903) 9 RIAA 119, 174–5
Doe v. Unocal, 395 F.3d 932 (9th Cir., 2002), 82–3
xxxviii table of cases

Dogger Bank (Great Britain v. Russia) (1905), (1908) 2 AJIL 931, 29, 98
Donoghue (or McAlister) v. Stevenson, [1932] AC 562, 377–8
Dr Horst Reineccius, First Eagle SoGen Funds, Inc., Mr Pierre Mathieu
and la Société de Concours Hippique de la Châàtre v. Bank for
International Settlements
– Partial Award, (2002) 140 ILR 6, 611
– Final Award, (2003) 140 ILR 81; 23 RIAA 252, 611
DRC v. Uganda see Armed Activities on the Territory of the Congo
Drozd and Janousek v. France and Spain, [1992] ECtHR 12747/87,
134–5
Dudgeon v. UK, [1981] ECtHR 7525/76, 261
Dutchbat see Nuhanovic´ v. Netherlands and Mustafic´ v. Netherlands
Earnshaw v. US (The Zafiro) (Great Britain/US), (1925) 6 RIAA 160, 62–3,
119–20, 141–2, 497
East Timor (Portugal v. Australia), ICJ Rep. 1995 p. 90, 377–8, 552, 655,
659–64
Eastman Kodak Company v. Iran, (1987) 17 Iran–US CTR 153, 162
EC – Bananas III, WT/DS27/AB/R, 25 September 1997, 390, 552–3
EC – Measures Affecting Asbestos and Asbestos-Containing Products,
WT/DS135/AB/R, 12 March 2001, 238–9
EC – Tariff Preferences, WT/DS246/AB/R, 7 April 2004, 320
Ecuador v. US, PCA Case No. 2012-5, pending, 1209
EDF v. Argentina, ICSID Case No. ARB/03/23, 11 June 2012, 537–8
EDF (Services) Ltd v. Romania, ICSID Case No. ARB/05/13, 8 October 2009,
44, 118, 128–9, 164–5
Edward Horgan v. An Taoiseach, (2003) 132 ILR 407, 334–5, 338
EG v. Poland, [2009] ECtHR 50425/99, 633–4
Eis (US/Soviet Union), (1959) 30 ILR 116, 119–20
El Salvador/Honduras see Land, Island and Maritime Frontier Dispute
Elettronica Sicula SpA (ELSI) (US v. Italy), ICJ Rep. 1989 p. 15, 69–70, 76,
100–1, 222–3, 580–1, 583–4
Enron Corp. and Ponderosa LP v. Argentine Republic, ICSID Case No.
ARB/01/3, Award on Jurisdiction, 14 January 2004, 620–1
Eritrea–Ethiopia Boundary Delimitation Decision (2002) 130 ILR 1, 243–4
Eritrea–Ethiopia Claims Commission
– Prisoners of War: Eritrea’s Claim 17, (2003) 135 ILR 199, 694
– Partial Award: Central Front: Eritrea’s Claims 2, 4, 6, 7, 8 & 22, (2004)
26 RIAA 115, 497–8
– Decision Number 7: Guidance Regarding Jus ad Bellum Liability, (2007)
26 RIAA 10, 484, 493
 table of cases xxxix

– Final Award: Eritrea’s Damages Claims, (2009) 26 RIAA 505, 481,

483–4, 495, 497–8, 532–3
– Final Award: Ethiopia’s Damages Claims, (2009) 26 RIAA 631, 481,
483–4, 497, 532–3
Eritrea and Yemen (Territorial Sovereignty), (1998) 114 ILR 1, 243–4
Estate of Jean-Baptiste Caire v. Mexico (France/Mexico), (1929) 5 RIAA
516, 29–30, 137–9
Estate of Ferdinand Marcos, In re, 25 F.3d 1467 (9th Cir., 1994), 82–3
Estate of Hyacinth Pellat (France/Mexico), (1929) 5 RIAA 534, 123
European Media Ventures SA v. Czech Republic, UNCITRAL, Award on
Jurisdiction, 15 May 2007, 602
European Parliament v. Council of the European Communities,
Case C-316/91 [1994] ECR I-625, 344
Eurotunnel Arbitration, (2007) 132 ILR 1, 332–3, 339–41, 354
Factory at Chorzów
– Jurisdiction, (1927) PCIJ Ser. A No. 9, 276–7, 467, 480, 508
– (1928) PCIJ Ser. A No. 17, 355, 480–1, 506–7, 509–11, 522, 555, 598,
599–603, 615–16, 619, 624, 643, 680
Federal Republic of Germany v. US, 526 US 111 (1999), 121–2
Ferrini v. Federal Republic of Germany, (2004) 128 ILR 658, 385–6
FH Redward (Great Britain) v. US, (1925) 6 RIAA 157, 438–9, 442, 445,
447, 455
Finnish Shipowners (UK/Finland), (1934) 3 RIAA 1479, 116–17, 141,
581–2
First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462
US 611 (1983), 430
Fisheries (UK v. Norway), ICJ Rep. 1951 p. 116, 99, 320–1
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), ICJ Rep.
1975 p. 175, 645–6, 669–70
Fisheries Jurisdiction (Spain v. Canada), ICJ Rep. 1998 p. 431, 308–9,
311–12
Fisheries Jurisdiction (UK v. Iceland), ICJ Rep. 1974 p. 3, 99, 645–6,
669–70
Flegenheimer, (1958) 25 ILR 91, 573–6
Flexi-Van Leasing v. Iran, (1986) 12 Iran–US CTR 335, 161
Foka v. Turkey, [2008] ECtHR 28940/95, 384
Foremost Tehran Inc. v. Islamic Republic of Iran, (1986) 10 Iran–US
CTR 228, 161, 272
Forests of Central Rhodope see Affaire des forêts du Rhodope central
Forti v. Suarez-Mason, 694 F.Supp. 707 (ND Cal., 1988), 82
xl table of cases

France v. Commission, Case No. C-327/91, [1994] ECR I-3641, 429

French Company of Venezuelan Railroads (France/Venezuela), (1902)
10 RIAA 285, 179, 307–8
Frontier Dispute (Burkina Faso/Mali), ICJ Rep. 1986 p. 554, 659–60
Frost v. Knight, (1872) LR 7 Ex. 111, 233
Funnekotter v. Zimbabwe see Henricus Funnekotter and ors v. Republic of
Zimbabwe
Fur Seals Arbitration (UK/US), (1893) 1 IELR 43, 374
G. L. Solis v. Mexico (US/Mexico), (1928) 4 RIAA 358, 170
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7, 41,
51–2, 96, 109, 186–7, 216–17, 224, 234–5, 243–4, 248, 254, 260, 268,
271–2, 281–2, 291–5, 299, 306–7, 310–15, 318–20, 355, 378, 446, 449,
455, 494, 556–7, 616, 666–7, 682–8, 697–700, 703–4
Gajic´ v. Germany, [2007] ECtHR 31446/02, 202–3, 352–3
Garrido and Baigorria v. Argentina, [1998] IACtHR Ser. C No. 39, 124
Gasparini v. Italy and Belgium, [2009] ECtHR 10750/03, 432–4
Gemplus v. Mexico, ICSID Case No. ARB(AF)/04/3, 16 June 2010,
537–8
Genocide see Application of the Convention on the Prevention and
Punishment of the Crime of Genocide
Gentini, (1903) 10 RIAA 551, 561–2
Georgia v. Russia, Admissibility, [2011] ECtHR 38263/08, 463
German Settlers in Poland, (1923) PCIJ Ser. B No. 6, 113
Germany v. Italy see Jurisdictional Immunities of the State
Gill, (1931) 5 RIAA 157, 296–7
Glamis Gold Ltd v. US, UNCITRAL, 8 June 2009, 588
Goetz v. Burundi, ICSID Case No. ARB/01/2, 21 June 2012, 614, 621
Gold Looted from the Netherlands, (1963) 44 ILR 448, 673, 674
Gould Marketing, Inc. v. Ministry of National Defence of Iran,
Interlocutory Award No. ITL 24-49-2 (1983) 3 Iran–US CTR 147, 297–8
Government of Namibia v. Cultura 2000, (1993) 103 ILR 104, 454–5
Great Belt see Passage through the Great Belt
Grillo, [1999] Rec. Lebon 907, 178
Gulf of Maine see Delimitation of the Maritime Boundary in the Gulf of
Maine Area
Gunton v. Richmond Borough Council, [1980] 3 WLR 714, 233
Guyana/Suriname, Award on the Merits, (2007) 139 ILR 566,
605–8, 691
Harshaw Chemical Company’s Patent, Re, (1964) 41 ILR 15, 191
Hawaiian Claims see F. H. Redward (Great Britain) v. US
 table of cases xli

Haya de la Torre (Colombia v. Peru), ICJ Rep. 1951 p. 71, 651–2, 654
Heirs of the Duc de Guise see Différend Héritiers de SAR Mgr le Duc de
Guise
Henricus Funnekotter and Ors v. Republic of Zimbabwe, ICSID Case No.
ARB/05/6, 22 April 2009, 537–8
Hespel, [1980] Rec. Lebon 866, 178
HN v. Netherlands, LJN: BF0181/265615, 10 September 2008, 206–8
Hochster v. de la Tour, (1853) 2 El & Bl 678; 233 ER 922
Hoff see Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison,
Deceased (USA) v. Mexico
Home Frontier and Foreign Missionary Society of the United Brethren in
Christ v. Great Britain (US/UK), (1920) 6 RIAA 42, 170, 179–80
Horimoto v. State (Japan), (1959) 32 ILR 161, 571–2
Hutten-Czapska v. Poland, [2006] ECtHR 35014/97, 634–6
Hyatt International Corporation v. Iran, (1985) 9 Iran–US CTR 72, 128,
130–2
Iceland–Norway Jan Mayen Continental Shelf Delimitation case, (1981)
62 ILR 108; 27 RIAA 1, 95
Impregilo v. Argentina, ICSID Case No. ARB/07/17, 21 June 2011, 537–8
Interhandel (Switzerland v. United States), Preliminary Objections, ICJ
Rep. 1959 p. 6, 69–70, 569, 580, 584
Interim Accord case see Application of the Interim Accord of 13
September 1995
International Status of South West Africa, ICJ Rep. 1950 p. 128, 364,
376
International Technical Products v. Iran, (1985) 9 Iran–US CTR 206, 161
International Tin Council see JH Rayner (Mincing Lane) and Maclaine
Watson & Co.
Iran v. US, Case Nos. A15(IV) and A24, (1996) 32 Iran–US CTR 115, 222–3
Iran–US Claims Tribunal v. AS, (1985) 94 ILR 321, 339–40
Ireland v. UK, (1978) 58 ILR 188, 249, 266, 272, 373, 463
Island of Palmas (Netherlands/US), (1928) 2 RIAA 829, 158, 241–7
Italy v. Cuba, Interim Award, 15 March 2005; Final Award, 15 January
2008, 591–2
Japan – Measures Affecting Consumer Photographic Film and Paper,
WT/DS44/R, 22 April 1998, 238–9
JH Rayner (Mincing Lane) Ltd v. Department of Trade and Industry
and Ors
– [1989] Ch. 72
– [1990] 2 AC 418; (1989) 81 ILR 670, 345–6, 425–6, 428–9
xlii table of cases

Johnson & Ors v. Ireland, [1986] ECtHR 9697/82, 249

Jorgic v. Germany, 2 StE 8/96, 26 September 1997 (Higher Regional
Court); (2000) 135 ILR 152 (Federal Constitutional Court), 151–2
Judge v. Canada, (2002) UN Doc. CCPR/C/78/D/829/1998, 474
Jurado, (1964) 40 ILR 296, 594–5
Jurisdiction of the European Commission of the Danube, (1927) PCIJ Ser.
B No. 14, 99
Jurisdictional Immunities of the State (Germany v. Italy; Greece
intervening), ICJ, 3 February 2012, 385–6, 461–2, 467–8, 473, 478–9,
512, 515–16, 611, 651–3, 659–60, 663–4
Kadic´ v. Karadžic´, 70 F.3d 232 (2nd Cir., 1995), 82–3
Kardassopoulos v. Georgia, ICSID Case No. ARB/05/18, 3 March 2010,
537–8
Kasikili/Sedudu Island (Botswana/Namibia), ICJ Rep. 1999 p. 1045,
243–4
Kasumaj v. Greece, [2007] ECtHR 6974/05, 202–3, 352–3
Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison, Deceased
(USA) v. Mexico, (1929) 4 RIAA 444, 303–5
Kelley v. Mexico, (1930) 4 RIAA 608, 297–8
Kingsland see Lehigh Valley Railroad Co. and Agency of Canadian Car and
Foundry Co., Ltd v. Germany
Kiobel v. Royal Dutch Petroleum
– 621 F.3d 111 (2nd Cir., 2010), 83
– 132 S Ct 1738 (2012), 83
Klöckner v. Cameroon, Decision on Annulment, (1985) 2 ICSID Reports
162, 614, 638
Kopecky v. Slovakia, [2004] ECtHR 44912/98, 262
KPMG Peat Marwick v. Davison, (1996) 104 ILR 526, 133–4
Kravchenko v. Russia, [2009] ECtHR 34615/02, 262
Kren, (1955) 20 ILR 233, 576
La Générale des Carrières et des Mines v. FG Hemisphere Associates LLC
(Gécamines), [2012] UKPC 27, 162–3
Lac Lanoux (Spain v. France), (1957) 12 RIAA 281, 56–9, 65
LaGrand (Germany v. US)
– Provisional Measures, ICJ Rep. 1999 p. 9, 96, 124
– ICJ Rep. 2001 p. 466, 73, 96, 121–2, 224–5, 355, 413–14, 463–4, 470–3,
476–7, 501, 516, 562, 584–5, 592, 599–600, 616, 622
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening), Application to Intervene, ICJ Rep. 1990 p. 92,
651–4, 658–9, 661–2, 670–1
 table of cases xliii

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon

v. Nigeria; Equatorial Guinea intervening)
– Preliminary Objections, ICJ Rep. 1998 p. 275, 659–60
– Order, 30 June 1999, ICJ Rep. 1999 p. 983, 609
– Order, 21 October 1999, ICJ Rep. 1999 p. 1029, 652–3
– ICJ Rep. 2002 p. 303, 243–4, 473, 478, 512, 518, 609, 616–17
Land Reform, 84 BVerfGE 90 (1991); (1991) NJW 1569, 450–1
Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), ICJ Rep. 1971 p. 16, 158, 173–4,
243–4, 247, 248–9, 375, 377, 380, 383–5, 389–90, 607–8, 676, 678, 693,
695
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, ICJ Rep. 2004 p. 136, 53–4, 312–15, 368–73, 375,
380, 386–7, 389, 461–2, 511, 552, 690–1
Legality of the Threat or Use of Nuclear Weapons, ICJ Rep. 1996 p. 226,
58–9, 291–2, 305–6, 375, 380, 691, 693–4
Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary
Objections, ICJ Rep. 2004 p. 279, 648–9, 671–2
Legality of Use of Force (Serbia and Montenegro v. France), ICJ,
Preliminary Objections, 5 July 2000, 196–7, 334–5, 427
Legality of Use of Force (Serbia and Montenegro v. Italy), ICJ, Preliminary
Objections, 5 July 2000, 196–7
Legality of Use of Force (Serbia and Montenegro v. Portugal), ICJ,
Preliminary Objections, 5 July 2000, 196–7
Legality of Use of Force (Yugoslavia v. US), Provisional Measures,
ICJ Rep. 1999 p. 916, 648–9
Lehigh Valley Railroad Co., Agency of Canadian Car and Foundry Co., Ltd
v. Germany, (1930) 8 RIAA 84 (Black Tom); (1939) 8 RIAA 225
(Kingsland), 142–3
Letelier v. Chile, 502 F.Supp. 259 (1980); 88 ILR 747, 526
Letelier and Moffitt, Re, (1992) 88 ILR 727, 526
LG&E Energy Corporation, LG&E Capital Corporation and LG&E
International Inc. v. Argentine Republic
– Decision on Objections to Jurisdiction, (2004) 11 ICSID Reports 411,
624–5
– Decision on Liability, ICSID Case No. ARB/02/1, 3 October 2006, 313
Libya/Malta see Continental Shelf (Libya/Malta)
Libyan American Oil Company (LIAMCO) v. Libya, (1977) 62 ILR 140,
468–9, 522–3
xliv table of cases

Libyan Arab Foreign Investment Company v. Burundi, (1994) 96 ILR 279,

300–1, 312
Lighthouses Arbitration between France and Greece, (1956) 12 RIAA 155;
partial reproduction in (1956) 23 ILR 81, 182–3, 185–7, 259–60, 296–8,
441–5, 447–8, 454–5, 561–2
Lighthouses in Crete and Samos, (1937) PCIJ Ser. A/B No. 71, 443,
468–9
Limited Liability Company Amto v. Ukraine, SCC Case No. 080/2005, 26
March 2008, 614
Lobban v. Jamaica, (2004) UN Doc. CCPR/C/80/D/797/1998, 474
Lockerbie see Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie
Loizidou v. Turkey
– Preliminary Objections, (1995) 103 ILR 622, 249, 384
– (1996) 108 ILR 443, 146–7, 151–2, 258, 262, 383–4
Lupsa v. Romania, [2006] ECtHR 10337/04, 521
Lusitania cases, (1923) 7 RIAA 32, 517
M & Co. v. Germany. [1990] ECommHR 13258/87, 346–7, 427
Maclaine Watson & Co. Ltd v. Council and Commission of the European
Communities, (1990) 96 ILR 201, 425–6, 428–9
Maffezini v. Spain, (2000) 5 ICSID Report 387, 163
Magee case (1874), Whiteman, 1 Damages in International Law
(1937–43), 527
Maine see Delimitation of the Maritime Boundary in the Gulf of
Maine Area
Malama v. Greece, [2001] ECtHR 43622/98, 262
Mallén v. US (Mexico/US), (1927) 4 RIAA 173, 123
Marckx v. Belgium, (1979) 58 ILR 561, 249
Mariposa Development Company v. Panama (US/Panama), (1933) 6 RIAA
338, 257–8
Mauritius v. UK, PCA, pending, 1258
Mavrommatis Palestine Concessions, (1924) PCIJ Ser. A No. 2, 69, 77,
96–7, 240, 246, 248, 398, 569–70, 573, 580, 590
Medellín v. Texas, 552 US 491 (2008), 225–6
Mergé, (1955) 22 ILR 443, 575–6
Metalclad Corporation v. Mexico, (2000) 119 ILR 615, 123
Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/R,
7 October 2005, 686
Michael Domingues, [2002] IACmHR 62/02, 380
 table of cases xlv

Military and Paramilitary Activities in and against Nicaragua

(Nicaragua v. US)
– Declaration of Intervention, ICJ Rep. 1984 p. 215, 651–2
– Jurisdiction and Admissibility, ICJ Rep. 1984 p. 392, 96–7, 466–7, 518,
650, 654–5, 658–9, 661–5, 670–1, 690–1, 704
– Memorial of Nicaragua (Merits), 30 April 1985, 148
– ICJ Rep. 1986 p. 14, 113, 125–6, 143–4, 146–9, 151–9, 161, 185,
203–4, 210, 278, 360–1, 380, 401, 618, 678–9, 681–2, 690–1, 697–8,
703–4
Minority Schools see Rights of Minorities in Upper Silesia
Minquiers and Ecrehos (France/UK), ICJ Rep. 1953 p. 47, 241–2
Mitsubishi Materials Corp. v. Superior Court of Orange County, 130 Cal.
Rptr 2d 734 (2003), 571–2
Mobil Oil Iran, Inc., et al., Partial Award No. 311-74/76/81/150-3 (1987) 16
Iran–US CTR 3, 299–300
Mondev International Ltd v. US, ICSID Case No. ARB(AF)/99/2, 11 October
2002, 588
Monetary Gold Removed from Rome in 1943 (Italy v. France, UK and US),
ICJ Rep. 1954 p. 19, 655–69
Mortensen v. Peters, (1906) 14 SLT 227, 122–3
Moses case, (1871) 3 Moore, History & Digest 116–17
Mothers of Srebrenica v. The Netherlands and the United Nations, LJN:
BL8979, 30 March 2010, 206–7
MOX Plant Case (Ireland v. UK), Order on Request for Provisional
Measures, (2001) 126 ILR 259, 603–5, 607
Mukeshimana-Ngulinzira v. Belgium, ILDC 1604 (BE 2010), 116, 204–5
Mustafic´ v. Netherlands, LJN: BR5388, 5 July 2011, 50–1, 116, 206–9
Mutua and Ors v. Foreign and Commonwealth Office, [2011] EWHC 1913
(QB), 436
MV Saiga (No. 2) (Saint Vincent and the Grenadines v. Guinea), (1999) 38
ILM 1323; 120 ILR 143, 312–13, 517, 519, 521, 534–6, 606–7
Mwandinghi v. Minister of Defence, (1990) 91 ILR 341, 454–5
Mytilineos v. Serbia and Montenegro, (2006) 16 ICSID Reports 567, 123
Namibia see Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970)
National Grid v. Argentina, UNCITRAL, 3 November 2008, 537–8
Nationality Decrees Issued in Tunis and Morocco (French Zone), (1923)
PCIJ Ser. B No. 4, 573–4
xlvi table of cases

Naulilaa (Responsibility of Germany for damage caused in the

Portuguese colonies in the south of Africa) (Portugal/Germany), (1928)
2 RIAA 1011, 685, 691–2, 697–8
Navigational and Related Rights (Costa Rica v. Nicaragua), ICJ Rep. 2009
p. 213, 243–4, 247–8, 473
Ngulinzira see Mukeshimana-Ngulinzira v. Belgium
Nicaragua v. US see Military and Paramilitary Activities in and against
Nicaragua
Niemiec and Niemiec v. Białobrodziec and (Polish) State Treasury, (1923)
2 ILR 64, 443
NK v. Austria, (1979) 77 ILR 470, 194–5
Noble Ventures Inc. v. Romania, ICSID Case No. ARB/01/11, 12 October
2005, 44
North American Dredging Co. Case (US v. Mexico), (1926) 4 RIAA 29,
569–70
North Sea Continental Shelf (Federal Republic of Germany/Netherlands;
Federal Republic of Germany/Denmark)
– Order, 26 April 1968, ICJ Rep. 1968 p. 9, 671
– ICJ Rep. 1969 p. 3, 99, 645–6
Northern Cameroons (Cameroon v. UK), Preliminary Objections,
ICJ Rep. 1963 p. 15, 240, 252
Norwegian Loans see Certain Norwegian Loans
Nottebohm (Liechtenstein v. Guatemala), Second Phase, ICJ Rep. 1955
p. 4, 76, 99, 569, 572, 574–5, 578–9
Nuclear Tests (Australia v. France), ICJ Rep. 1974 p. 253, 503–4, 622,
645–6
Nuclear Tests (New Zealand v. France)
– Memorial on Jurisdiction and Admissibility submitted by the
Government of New Zealand, 29 October 1973, 504
– ICJ Rep. 1974 p. 457, 377, 503–4, 645–6
Nuclear Weapons see Legality of the Threat or Use of Nuclear Weapons
Nuhanovic´ v. Netherlands, LJN: BR5388, 5 July 2011, 50–1, 116, 206–9
Oil Platforms (Iran v. US)
– Preliminary Objection, ICJ Rep. 1996 p. 803, 96–7
– Order on Counter-Claim, ICJ Rep. 1998 p. 190, 272
– ICJ Rep. 2003 p. 161, 235, 237–8, 290, 328–9, 331, 358, 610–11, 655,
662–3, 690–1
Oscar Chinn, (1934) PCIJ Ser. A/B No. 63, 311–12
Otis Elevator Company v. Iran, (1987) 14 Iran–US CTR 283, 162
 table of cases xlvii

Ottoman Empire Lighthouses Concession (France/Greece) see Lighthouses

Arbitration between France and Greece
Panevezys-Saldutiskis Railway Co., (1939) PCIJ Ser. A/B No. 76, 572,
581–2
Pantechniki SA Contractors and Engineers (Greece) v. Republic of
Albania, ICSID Case No. ARB/07/21, 30 July 2009, 626
Papamichalopoulos v. Greece, [1993] ECtHR 14556/89, 262, 481
Passage through the Great Belt (Finland v. Denmark)
– Provisional Measures, ICJ Rep. 1991 p. 12, 624
– Order, ICJ Rep. 1992 p. 348, 508, 514, 555
Paushok v. Mongolia see Sergei Paushok et al. v. Government of Mongolia
Pellat see Estate of Hyacinth Pellat
Petrolane Inc. v. Iran, (1991) 27 Iran–US CTR 64, 138–9
Pfunders see Austria v. Italy
Phelps Dodge Corp. v. Iran, (1986) 10 Iran–US CTR 121, 120–1
Phosphate Lands in Nauru see Certain Phosphate Lands in Nauru
Phosphates in Morocco
– Preliminary Objections, (1938) PCIJ Ser. A/B No. 74, 240, 255–6,
258, 270
– Observations and Submissions submitted by the Italian Government,
(1938) PCIJ Ser. C No. 84, 255–6, 269–70
Pinson v. Mexico (France/Mexico), (1928) 5 RIAA 327, 174–5, 179
Preferential Treatment of Claims of Blockading Powers against
Venezuela (Germany, Great Britain and Italy v. Venezuela), (1904) 9
RIAA 99, 26
Presbyterian Church of Sudan v. Talisman Energy Inc., F.3d 244
(2nd Cir., 2009), 83
Prosecutor v. Akayesu, ICTR Case No. 96-4-T, Trial Chamber, 2 September
1998, 173–4
Prosecutor v. Aleksovski
– ICTY Case No. IT-95-14/I-T, Trial Chamber, 25 June 1999, 152–3
– ICTY Case No. IT-95-14/I-A, Appeals Chamber, 24 March 2000, 152–3
Prosecutor v. Blaškic´
– Objection to the Issue of Subpoenae Duces Tecum, (1997) 110 ILR 607,
52–3
– ICTY Case No. IT-95-14/T, Trial Chamber, 3 March 2000, 152–3, 157
Prosecutor v. Delalic´ et al.
– ICTY Case No. IT-96-21-T, Trial Chamber, 10 December 1998, 180–1
– ICTY Case No. IT-96-21-A, Appeals Chamber, 20 February 2001, 152–3
xlviii table of cases

Prosecutor v. Kordic´ and Čerkez

– ICTY Case No. IT-95-14/2-T, Trial Chamber, 26 February 2001, 152–3
– ICTY Case No. IT-95-14/2-A, Appeals Chamber, 17 December 2004,
152–3
Prosecutor v. Kupreškic´, ICTY Case No. IT-95-16-T, Trial Chamber, 14
January 2000, 682, 688–9, 693–4
Prosecutor v. Mladic´, ICTY Case No. IT-09-92-PT, Prosecutor’s Fourth
Amended Indictment, 16 December 2011, 206–7
Prosecutor v. Naletilic´, ICTY Case No. IT-98-34-T, Trial Chamber, 31
March 2003, 152–3
Prosecutor v. Tadic´, Appeal against Conviction, (1999) 124 ILR 63,
114–15, 119–20, 125–6, 144, 146–57, 160, 180–1, 348–9, 360–1
Prosecutor v. Thomas Lubanga Dyilo, ICC Case No. ICC-01/04-01/06,
Decision establishing the principles and procedures to be applied to
reparations, 7 August 2012, 642–3
Protopapa v. Turkey, [2009] ECtHR 16084/90, 384
PSEG v. Turkey, ICSID Case No. ARB/02/5, 19 January 2007, 535–6
Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Rep. 2010
p. 14, 462, 473, 514, 530
Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libya v. UK),
Preliminary Objections, ICJ Rep. 1998 p. 9, 96–7, 648–9, 671–2
Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libya v. US),
Preliminary Objections, ICJ Rep. 1998 p. 115, 648–9
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), ICJ, 20 July 2012, 159–60, 260, 369, 468–9, 489, 550–1
R v. Mafart and Prieur, (1985) 74 ILR 241, 140
R v. Minister of Agriculture, Fisheries and Food, ex parte SP Anastasiou
(Pissouri) Ltd, Case C-432/92 (1994) 100 ILR 257, 384
R (Al-Jedda) v. Secretary of State for Defence see Al-Jedda
Raihman v. Latvia, (2010) UN Doc. CCPR/C/100/D/1621/2007, 474
Railroad Development v. Guatemala, ICSID Case No. ARB/07/23, 29 June
2012, 537–8
Rainbow Warrior (New Zealand/France)
– (1986) 74 ILR 241, 139–40, 185, 252
– (1990) 82 ILR 500; 20 RIAA 215 (Arbitration), 37, 51–2, 56–9, 96, 185,
232, 252–3, 265, 281, 298–9, 302–3, 305–6, 314, 462, 465–7, 507,
526–9, 620–1, 627, 684
Rankin v. Iran, (1987) 17 US–Iran CTR 135, 174–5
 table of cases xlix

The Rebecca see Kate A. Hoff, Administratrix of the Estate of Samuel B.

Allison, Deceased (USA) v. Mexico
Red Crusader Report, (1962) 35 ILR 485, 98, 607
Renta 4 SVSA et al. v. The Russian Federation, SCC Case No. 24/2007
– Award on Preliminary Objections, 20 March 2009, 603, 608
– 20 July 2012, 537–8
Reparation for Injuries Suffered in the Service of the United Nations, ICJ
Rep. 1949 p. 174, 77–8, 101, 188–9, 343–4, 366–9, 424–5, 542, 575–6,
594–6, 648
Request for Interpretation of the Judgment of 15 June 1962 in the Case
Concerning the Temple of Preah Vihear (Cambodia v. Thailand), ICJ,
pending, 2011, 72–3, 511–12
Request for Interpretation of the Judgment of 31 March 2004 in the Case
concerning Avena and Other Mexican Nationals (Mexico v. US) (Avena
Interpretation)
– Provisional Measures, ICJ Rep. 2008 p. 311, 124
– ICJ Rep. 2009 p. 3, 120–2, 224–6, 413–14, 463–4, 470, 473, 515–16
Responsabilité de l’Allemagne en raison des actes commis
postérieurement au 31 juillet 1914 et avant que le Portugal ne
participât à la guerre (Portugal contre Allemagne) see Cysne
Responsibilities and Obligations of States Sponsoring Persons and
Entities with Respect to Activities in the Area, (2011) 150 ILR 244,
114–15, 374–5, 552–3
Right of Passage over Indian Territory (Portugal v. India), ICJ Rep. 1960
p. 6, 99, 240, 243–4
Rights of Minorities in Upper Silesia (Minority Schools), (1928) PCIJ Ser. A
No. 15, 655
Rights of Nationals of the United States of America in Morocco (France v.
US), ICJ Rep. 1952 p. 176, 99, 243–4
RJ Reynolds Tobacco Company v. Iran, (1984) 7 Iran–US CTR 181, 537
Roach and Pinkerton, [1987] IACmHR 3/87, 380
Robert E. Brown (United States) v. Great Britain, (1923) 6 RIAA 120,
415–16, 437–8, 442, 445, 447, 455
Romano-Americana (1916), Hackworth, 5 Digest of International Law
(1943), 331, 420–1
RosInvestCo UK Ltd v. Russia, SCC Case No. V079/2005, Award on
Jurisdiction, October 2007, 600–1
Roussalis v. Romania see Spyridon Roussalis v. Romania
Rumeli Telekom v. Kazakhstan, ICSID Case No. ARB/05/16, 29 July 2008,
537–8
l table of cases

Russian Indemnity (Russia v. Turkey), (1912) 11 RIAA 421, 71, 284–5,

298–9, 307–8, 558–9, 563
The Saiga see MV Saiga (No. 2)
Saint Albans Raid (UK/US), (1873) 4 Moore, Int. Arb. 4042, 296–7
Saldajeno v. Ishihara Sangyo Kaisha, Ltd, 540 US 821 (2003), 571–2
Salem, (1923) 2 RIAA 1161, 575–6
Salini Construttori SpA and Italstrade SpA v. Morocco, (2001) 6 ICSID
Report 398, 163
Salomon v. A Salomon & Co., [1897] AC 22, 29-31, 425
Saluka Investments BV v. Czech Republic, UNCITRAL, Decision on
Jurisdiction over the Czech Republic’s Counterclaim, 7 May 2004,
611–13
Salvador Commercial Company (El Salvador/US), (1902) 15 RIAA 455,
116–17
Sambaggio, (1903) 10 RIAA 499, 170
Samos (Liability for Torts) Case, (1924) 2 ILR 70, 443, 445
Sanchez-Llamas v. Oregon, 548 US 331 (2006), 225–6
Sandline International Inc. v. Papua New Guinea, (1998) 117 ILR 552, 130
Saramati v. France, Germany and Norway, (2007) 133 ILR 1, 116,
197–204, 207, 346–54
Sarei v. Rio Tinto (9th Cir., Docket No. 02-56256/02-56390/09-56381, 25
October 2011) slip op. 19332–3, 19358–80, 82–3
Savarkar (Great Britain/France), (1911) 11 RIAA 243, 284–5
Schering Corporation v. Iran, (1984) 5 Iran–US CTR 361, 128, 162
SD Myers v. Canada, Second Partial Award, (2002) 8 ICSID Reports 124,
522
SEDCO v. National Iranian Oil Co., (1985) 9 Iran–US CTR 248, 163–4
Sempra Energy International v. Argentina, ICSID Case No. ARB/02/16, 28
September 2007, 298–9
Serbian Loans, (1929) PCIJ Ser. A No. 20, 298–9, 307–8, 468–9
Sergei Paushok et al. v. Government of Mongolia, UNCITRAL, Award on
Jurisdiction and Liability, 28 April 2011, 612–13
Several British Subjects v. US (Iloilo Claims) (UK/US), (1925) 6 RIAA 158,
170
SGS Société Générale de Surveillance SA v. Philippines, Jurisdiction,
(2004) 8 ICSID Reports 515, 101
Shimoda v. State (Japan), (1963) 32 ILR 626, 571–2
Shuster see (1912) 6 AJIL 389, 419–21, 537–8
Siag v. Egypt, ICSID Case No. ARB/05/15, 1 June 2009, 537
Siemens v. Argentina, (2007) 14 ICSID Reports 518, 535–6
 table of cases li

Sistem Mühendislik v. Kyrgyz Republic, ICSID Case No. ARB(AF)/06/1, 9

September 2009, 537–8
Social & Economic Rights Action Center, Center for Economic & Social
Rights v. Nigeria, ACHPR Comm No. 155/96, 13–27 October 2001, 374
Société Commerciale de Belgique (Socobelge), (1939) PCIJ Ser. A/B No. 78,
307–8, 468–9
Socony Vacuum Oil Company, (1955) 21 ILR 55, 177, 435–6
Soering v. UK, (1989) 98 ILR 270, 249, 335–6
Sosa v. Alvarez-Machain, 542 US 692 (2004), 82
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa)
– Order, 20 May 1961, ICJ Rep. 1961 p. 13, 670–1
– Preliminary Objections, ICJ Rep. 1962 p. 319, 552
– Second Phase, ICJ Rep. 1966 p. 6, 78–9, 364, 380, 491, 552, 596–7,
645–6, 691–2
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and
South Ledge (Malaysia/Singapore), ICJ Rep. 2008 p. 12, 72
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
Application to Intervene by the Philippines, ICJ Rep. 2001 p. 575,
652–3
Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1
– Declaration of Reisman, 28 November 2011, 614
– 7 December 2011, 613–14
SS I’m Alone (Canada/US), (1935) 3 RIAA 1609, 528–9, 607
SS Lotus, (1927) PCIJ Ser. A No. 10, 673, 677–8
SS Wimbledon, (1923) PCIJ Ser. A No. 1, 56–7, 93–4, 101, 363, 504, 518,
533–6, 619, 622, 645–8, 651–2
Starrett Housing v. Iran, (1983) 4 Iran–US CTR 122, 163–4
Status of Eastern Carelia, (1923) PCIJ Ser. B No. 5, 655
Stephens v. Cyprus, Turkey and the United Nations, [2011] ECtHR
45267/06, 203
Stevenson, (1903) 9 RIAA 385, 561–2
Suk Yoon Kim v. Ishikawajima Harima Heavy Industries, 540 US 820
(2003), 571–2
Swisslion DOO Skopje v. Macedonia, ICSID Case No. ARB/09/16, 6 July
2012, 537–8
Sylvania Technical Systems v. Iran, (1985) 8 Iran–US CTR 298, 522–3
Tachiona et al. v. Mugabe and ZANU-PF, 234 F.Supp. 2d 401 (SDNY, 2002),
82–3
Tagliaferro, (1903) 10 RIAA 593, 561–2
Tasmanian Dam see Commonwealth v. Tasmania
lii table of cases

Tecnicas Medioambientales Tecmed SA v. Mexico, (2006) 10 ICSID

Reports 130, 120–1
Tehran Hostages see United States Diplomatic and Consular Staff in Iran
Telenor Mobile Communications AS v. Hungary, ICSID Case No. ARB/04/15,
13 September 2006, 120–1
Temple of Preah Vihear (Cambodia v. Thailand)
– Preliminary Objections, ICJ Rep. 1961 p. 17, 71
– ICJ Rep. 1962 p. 6, 72–4
Tenney v. Mitsui & Co., 571–2 US 820 (2003), 571
Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ,
Applications to Intervene by Costa Rica and Honduras, 4 May 2011,
651–4
Texaco v. Libya, (1977) 53 ILR 389, 468–9
Tinoco Concessions see Aguilar-Amory and Royal Bank of Canada
Tippets, Abbet, McCarthy, Stratton v. TAMS-AFFA Consulting Engineers
of Iran, (1984) 6 Iran–US CTR 219, 120–1, 163–4, 217–18
Torres v. Oklaholma, No. PCD-04-442 (Oklahoma Ct Crim App, 13 May
2004), 225–6
Trail Smelter (Canada/United States), (1938 & 1941) 3 RIAA 1905; (1941) 1
IELR 278, 229, 259–60, 334–5, 492, 517
Tullett Prebon Plc & Ors v. BGC Brokers LP & Ors, [2011] EWCA Civ 131,
233
Tunisia/Libya see Continental Shelf
Turkey – Restrictions on the Imports of Textile and Clothing Products,
WT/DS34/R, 31 May 1999, 134
Tyrer v. United Kingdom, [1978] ECtHR 5856/72, 249
Underhill v. Hernandez, 168 US 250 (1897), 377–8
Unglaube v. Costa Rica, ICSID Case No. ARB/08/1, 16 May 2012, 537–8
Union Bridge Company, (1924) 2 ILR 170, 136
Union Régionale d’Algérie de la CFTC, Re, (1962) 44 ILR 43, 178
United States Diplomatic and Consular Staff in Iran (US v. Iran), ICJ Rep.
1980 p. 3, 71, 113, 144–5, 151–2, 183–7, 217–18, 228–9, 259–60,
263–4, 341–2, 358–9, 447, 466–7, 496–8, 512, 584, 696–8
US – Antidumping and Countervailing Duties
– WT/DS379/R, 22 October 2010, 88–9
– WT/DS379/AB/R, 11 March 2011, 89–90
US – Definitive Safeguard Measures on Imports of Circular Welded
Carbon Quality Line Pipe from Korea, WT/DS202/AB/R, 15 February
2002, 699
 table of cases liii

US – Import Prohibition of Certain Shrimp and Shrimp Products,

WT/DS58/AB/R, 6 November 1998, 121, 374
US–France Air Services Agreement see Air Services Agreement of 27
March 1946 between the US and France
Varnava and Others v. Turkey, [2009] ECtHR 16064/90, 526
Vasilescu v. Romania, [1998] ECtHR 27053/95, 262
Velásquez Rodríguez, [1989] IACtHR Ser. C No. 7; (1989) 95 ILR 232, 481,
526
Vienna Convention on Consular Relations (Paraguay v. US)
– Provisional Measures, ICJ Rep. 1998 p. 248, 121–2
– Order of 10 November 1998, ICJ Rep. 1998 p. 426, 516
Vivendi Universal v. Argentina see Compañía de Aguas del Aconquija SA
and Compagnie Générale des Eaux v. Argentina
Vladimir Berschader and Moïse Berschader v. Russia, SCC Case No.
080/2004, Award on Jurisdiction, 21 April 2006, 600–1, 603
Von Maltzan v. Germany, [2005] ECtHR 71916/01, 262, 450–1
Waite and Kennedy v. Germany, (1999) 118 ILR 121, 199–200, 427, 430–1
Wall Advisory Opinion see Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory
Waste Management v. Mexico (No. 2), (2004) 11 ICSID Reports 362, 102–3
Wena Hotels Ltd v. Egypt, (2000) 6 ICSID Reports 89, 163
Western Sahara, ICJ Rep. 1975 p. 12, 242
Westland Helicopters Ltd v. Arab Organization for Industrialization
and Ors
– (1984) 80 ILR 600, 426–7
– Second Arbitral Award, 21 July 1991, 429–30
Whaling in the Antarctic (Australia v. Japan), ICJ, Application Instituting
Proceedings, 31 May 2010, 373
William L. Pereira Associates, Iran v. Iran, (1984) 5 Iran–US CTR 198,
167–8
Williams v. Bruffy, 96 US 176 (1877), 170, 177
Winebox see KPMG Peat Marwick v. Davison
Wipperman (US/Venezuela), (1889) 3 Moore, Int. Arb. 3039, 296–7
Wolkenberg v. Poland, [2007] ECtHR 50003/99, 633–4
Wooldrige v. Summer, [1963] 2 QB 43, 287
World War II Era Japanese Forced Labor Litigation, Re, 114 F.Supp.
2d 939 (ND Cal., 2000), 571–2
X v. Belgium, [1968] ECommHR 2568/65, 261–2
X and Y, [1992] ECtHR 12747/87, 134–5
liv table of cases

X and Y v. Switzerland, [1977] ECommHR 7289/75, 134

Xenides-Arestis v. Turkey, [2005] ECtHR 46347/99, 634
Xhavara v. Italy and Albania, [2001] ECtHR 39473/98, 134
Xheraj v. Albania, [2008] ECtHR 37959/02, 262
Xuncax v. Gramajo, 886 F.Supp. 162 (D. Mass., 1995), 82
Yeager v. Iran, (1987) 17 Iran–US CTR 92, 137–9, 146–7, 151–2, 167–9,
174–5
Youmans (US/Mexico), (1926) 3 ILR 223, 119–20, 123
The Zafiro see Earnshaw v. US
Zhenhuan Ma v. Kajima Corp., 540 US 820 (2003), 571–2
 Select table of treaties and other
instruments

American Convention on Human Rights, 22 November 1969, OAS Treaty

Series No. 36 (ACHR), 596
Art. 1, 474
Art. 28, 124
Charter of the United Nations (UN Charter), 46, 51, 75, 79–80, 106–8,
284–5, 289–90, 292, 326, 370, 572, 605–8, 667, 684–5, 689–91, 706–8,
715, 721, 723, 751, 756, 774, 777
Ch. VI, 387–8
Ch. VII, 253, 107–8, 160, 289, 315, 343–4, 348–9, 386–7, 707–8
Ch. VIII, 654
Art. 2(3), 677–8
Art. 2(4), 289–90, 309–10, 317–18, 334–5, 343, 380, 447, 546, 611
Art. 2(5), 401
Art. 2(7), 106–7
Art. 13(1)(a), 724–7
Art. 14, 709–10
Art. 17(2), 422
Art. 24, 707–8
Art. 24(2), 106–7
Art. 25, 106–7, 707–9
Art. 33, 556–7
Arts. 33 to 38, 677–8
Art. 36(3), 106–7
Art. 39, 707–8
Art. 40, 707–8
Art. 41, 707–8
Art. 42, 707–8
Art. 51, 188, 278–9, 289, 291

lv
lvi table of treaties

Art. 52, 710

Art. 99, 192
Art. 100, 594
Art. 103, 106–8, 120–1, 200–2
Convention on Cluster Munitions, 3 December 2008 (CCM), 96–7, 113,
143–4, 154–5, 203–4, 218–19, 231, 266–7, 315–17, 330, 367, 375, 380,
401, 403, 449, 473, 481, 512–13, 552, 610–11, 617, 667–8, 688–9
Art. I, 230–1, 267, 342–3
Art. I(c), 337–8
Art. II, 567, 380–1
Art. II(a), 266–7
Art. III, 231, 403–4
Art. III(e), 266–7, 330, 343
Art. XXI, 711
Convention on the Prevention and Punishment of the Crime of Genocide,
9 December 1948, 78 UNTS 277 (Genocide Convention)
Art. III, 189
Art. IV, 189
Convention on the Settlement of Investment Disputes between States
and Nationals of Other States, 18 March 1965, 575 UNTS 159 (ICSID
Convention), 581–2, 589, 613–14, 639
Art. 25(1), 612–13, 638
Art. 26, 581–2
Art. 27(1), 287
Art. 44, 639
Art. 46, 612–14
Art. 54(1), 620–1
European Convention for the Protection of Human Rights and
Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (ECHR),
134–5, 199–200, 249, 261, 266, 348–51, 373–4, 430–4, 463, 630–7
Art. 1, 198, 346–9, 431
Art. 2, 347
Art. 3, 463
Art. 5, 197–8, 347–8
Art. 5(1), 200–2
Art. 6, 347–8
Art. 7, 463
Art. 10, 261
Art. 13, 347–8
Art. 33, 349
 table of treaties lvii

Art. 35(1), 384–5

Art. 46, 632
Art. 64, 261
Protocol 1, Art. 1, 632
ILC Articles on Diplomatic Protection 2006, ILC Report 2006, UN Doc
A/61/10, 16 (ADP), 75–7, 567–8, 575–6, 579–80, 584, 586, 589–90,
593–4
Pt 1, 728
Pt 2, 728
Pt 2, Ch. I, 728
Pt 2, Ch. II, 729
Pt 2, Ch. III, 730
Pt 3, 731
Pt 4, 731–2
Art. 1, 75–6, 568–9, 572, 577, 585, 593, 728
Art. 2, 728
Art. 3, 728
Art. 3(1), 573
Art. 3(2), 573
Art. 4, 573–4, 728
Art. 5, 729
Art. 5(2) to (4), 577
Art. 6, 575, 729
Art. 7, 575–6, 729
Art. 8, 573, 728–9
Art. 9, 578–9, 730
Art. 10, 578–9, 730
Art. 11, 579–80, 730
Art. 12, 578, 730
Art. 13, 730
Art. 14, 569–70, 581–2, 731
Art. 14(1) and (2), 581
Art. 14(3), 584
Art. 15, 581–2, 731
Art. 15(e), 582
Art. 16, 77–8, 571–2, 586, 592–4, 731
Art. 17, 585, 588–90, 731
Art. 18, 78–9, 596, 731
Art. 19, 77–9, 570–1, 732
Art. 24(2), 567–8
lviii table of treaties

ILC Articles on the Responsibility of States for Internationally Wrongful

Acts 2001, ILC Ybk 2001/II(2), 26 (ARSIWA), 41–4, 52–4, 61, 63, 65,
73–6, 83–94, 96–7, 103–4, 116, 126–9, 153–4, 156, 166, 199, 219–20,
229–31, 234–5, 239, 276–7, 280, 284–5, 287–8, 291–4, 303–8, 314–15,
339, 342–3, 345–6, 355–7, 382, 390–1, 394, 401–3, 408, 418, 422–4,
436–7, 470–1, 481–3, 487–8, 491–4, 496, 500–2, 506, 507–10, 523–4,
529, 531–2, 537, 541–2, 548–50, 554–7, 567, 572, 616, 645, 647, 676–7,
680, 683, 685, 687–8, 706–7, 710–11
Pt 1, 55, 104–5, 459–61, 548–50, 712
Pt 1, Ch. I, 45, 712
Pt 1, Ch. II, 45, 67–8, 74–5, 94, 113–15, 334, 336–7, 343–4, 355, 413–14,
704–5, 712–14
Pt 1, Ch. III, 46, 67–8, 94, 215, 714
Pt 1, Ch. IV, 46, 94, 333–9, 341–2, 395
Pt 1, Ch. V, 46, 62, 94, 250–1, 274–81, 284–5, 315–17, 320, 417, 558, 565,
680–1, 687–9, 715–17
Pt 2, 46–7, 68–9, 104–5, 110, 459–61, 481, 506, 508, 548–50, 686, 717
Pt 2, Ch. I, 46–7, 548–9, 717–18
Pt 2, Ch. II, 47, 318, 718–19
Pt 2, Ch. III, 41, 47, 371, 393–4, 525, 552, 719
Pt 3, 41, 47–8, 95, 104–5, 110, 541, 719
Pt 3, Ch. I, 47, 541, 547–9, 646, 719–21
Pt 3, Ch. I (draft), 40–1
Pt 3, Ch. II, 46, 48, 235, 292–4, 542, 676–7, 682–6, 715,
721–2
Pt 4, 51, 108, 722
Art. 1, 49–51, 58–60, 83–4, 93–4, 99–100, 217–18, 274–5, 334, 438–9,
441, 488, 548, 572, 645, 712
Art. 2, 49–50, 55, 58–60, 93, 113–15, 215, 216, 218, 274–5, 349–50,
389–90, 395, 403–4, 461–2, 548, 712
Art. 2(b), 93, 504–5
Art. 3, 45, 94, 99–101, 120–1, 712
Art. 4, 45, 117, 119–21, 123–8, 135–6, 140, 142, 148, 158–60, 162, 168,
185, 285–6, 712–13
Art. 4(1), 118, 123
Art. 4(2), 124–5
Arts. 4 to 7, 115
Arts. 4 to 9, 171–2, 713
Arts. 4 to 11, 334, 343–4
Art. 5, 45, 126–32, 136, 161–2, 168–9, 340, 713
 table of treaties lix

Arts. 5 to 9, 179–80
Art. 6, 45, 132–6, 169, 196, 203–4, 341, 349–50, 713
Art. 7, 45, 117, 119–20, 127–8, 136–8, 140, 167–8, 172, 713
Art. 8, 114–16, 125–7, 129, 141, 143–8, 152–9, 161, 165–8, 203–4,
358–61, 713
Arts. 8 to 11, 45
Art. 9, 116, 143–4, 166–9, 713
Art. 10, 116, 166, 168, 170–6, 178–80, 435–6, 713
Art. 10(1), 174–6, 178–9
Art. 10(2), 173, 176–9
Art. 10(3), 179–80
Art. 11, 116, 166, 167–8, 181–3, 185–8, 260, 341–2, 354–5, 358–61, 428,
436–7, 447, 714
Art. 12, 46, 51, 93, 215–16, 219–20, 224–5, 235, 238, 240, 342–3, 547–8,
714
Art. 13, 46, 240–1, 245–6, 248–52, 714
Art. 13(1), 250–1
Arts. 13 to 15, 240
Art. 14, 46, 219–20, 230, 234–5, 254, 259–60, 262–5, 342–3, 462, 714
Art. 14(1), 253–4, 264–5
Art. 14(2), 253–4, 258–9
Art. 14(3), 227–8, 230–2, 253–4, 259–60, 342–3
Art. 15, 46, 219–20, 253–4, 265–9, 462–3, 714
Art. 15(1), 217–18, 269
Art. 15(2), 269
Art. 16, 46, 88–9, 210, 329–30, 334–5, 337–9, 354–5, 358, 395–7,
399–403, 405–13, 416, 421, 714
Art. 16(a), 338–9, 406
Art. 16(b), 338–9, 409–10, 432
Arts. 16 to 18, 50–1, 328, 333, 336–7, 339, 345–6
Art. 17, 46, 210, 338–9, 395–7, 400–1, 412–18, 421, 715
Art. 17(a), 416
Art. 17(b), 416, 432
Art. 18, 46, 210, 338–9, 395–7, 413, 419, 421–2, 715
Art. 18(a), 421
Art. 18(b), 421
Art. 19, 46, 336–7, 417, 715
Art. 20, 46, 274–6, 284–7, 551, 706–7, 715
Arts. 20 to 25, 50, 61, 65–6, 501–2
Art. 21, 46, 274, 291–2, 715
lx table of treaties

Arts. 21 to 23, 275–6

Art. 22, 46, 274, 292–4, 683, 685–6, 688–9, 691–2, 702–3, 705–6, 715
Art. 23, 46, 274, 295–6, 296–7, 298–302, 338–9, 419, 421, 716
Art. 23(1), 300–1
Art. 23(2), 300–1
Art. 23(2)(a), 300–1
Art. 24, 46, 274, 301–5, 716
Art. 24(1), 301
Art. 24(2)(b), 301–2
Art. 25, 46, 274, 307–13, 716
Art. 25(1), 313
Art. 25(1)(a), 309–11
Art. 25(2), 313
Art. 25(2)(a), 315
Art. 25(2)(b), 307–8, 312–13
Art. 26, 245, 250–1, 274, 276–7, 286, 312–13, 315–17, 565, 688–9,
692–4, 716
Art. 27, 65–6, 99–100, 274, 282, 313, 318–20, 717
Art. 27(b), 50, 65–6, 280, 318–20
Art. 28, 459–61, 548, 717
Art. 29, 46–7, 459, 461, 623–4, 717
Art. 30, 46–7, 459–62, 465–6, 469, 476, 489, 623–4, 717
Art. 30(a), 263–4, 459, 461–3
Art. 30(b), 459
Art. 31, 46–7, 54–5, 58–9, 318, 355, 357, 481, 485, 487–8, 492, 494,
496–8, 501–2, 523, 673–4, 717
Art. 31(1), 438–9, 492, 502–3, 616
Art. 31(2), 54–5, 485, 673–4
Art. 32, 46–7, 717
Art. 33, 46–7, 460–1, 548–9, 717
Art. 33(1), 460–1, 548–9
Art. 33(2), 460–1, 548–50, 585
Art. 34, 47, 482–3, 507, 514–15, 718
Art. 35, 47, 465, 468, 507, 509–13, 718
Art. 35(b), 482–3, 514
Arts. 35 to 37, 616
Art. 36, 47, 487–8, 517, 519, 522–3, 528–9, 673, 718
Art. 36(1), 54–5, 507
Art. 36(2), 54–5
Art. 37, 47, 486–7, 507, 524, 527–9, 718
 table of treaties lxi

Art. 37(1), 476, 507

Art. 37(2), 527–9
Art. 37(3), 482–3, 530–1
Art. 38, 47, 531–7, 718
Art. 38(1), 532
Art. 39, 47, 278, 358, 500–3, 719
Art. 40, 47, 53–4, 85–6, 365–6, 371, 380–1, 385–6, 393–4, 525, 565,
690–4, 704–5, 719
Art. 40 (draft), 40–1
Art. 40(1), 393–4
Art. 40(2), 53–4, 106, 380–1, 393–4
Art. 41, 47, 53–4, 85–6, 88, 106, 365–6, 377, 380–1, 385–7, 389, 393–4,
525, 719
Art. 41 (draft), 40
Art. 41(1), 341–2, 381, 386–7
Art. 41(2), 53–4, 338, 381, 385, 387
Art. 41(3), 525
Art. 42, 40–1, 47–8, 59–60, 66, 365–6, 393–4, 491, 541–2, 544–51, 554,
563–4, 566, 646–7, 719
Art. 42 (draft), 40
Art. 42(a), 59–60, 545–6
Art. 42(b), 546
Art. 42(b)(i), 59–60, 369, 546
Art. 42(b)(ii), 59–60, 547
Art. 43, 47–8, 68, 465, 508, 549–50, 553–5, 563, 623–4, 646–7, 720–2
Art. 43(1), 554
Art. 43(2), 555, 622
Art. 43(2)(b), 465, 508, 555, 622–3
Art. 44, 47–8, 68–70, 75–6, 549–50, 556, 567–8, 584, 645–7, 720–1
Art. 44(b), 69–70, 584
Art. 45, 47–8, 67–8, 70–1, 73–4, 287, 317, 549–50, 557–61, 563–5, 622,
646–7, 669, 720–1
Art. 45(a), 70, 668
Art. 45(b), 72, 560–1
Art. 46, 47–8, 325, 503–4, 545, 622–3, 645–8, 674, 720
Art. 47, 47–8, 54–5, 204, 327, 329–31, 334–5, 355–6, 399, 402, 404–5,
565, 648–9, 673–4, 720
Art. 47(1), 331–2, 334–5, 355–6
Art. 47(2), 334–5
Art. 47(2)(a), 355, 673
lxii table of treaties

Art. 47(2)(b), 355–6, 673–4

Art. 48, 40–1, 66–7, 71, 85–6, 88, 365–6, 368–72, 389–90, 393–4, 460,
489, 542, 547–55, 557–8, 563–6, 586–7, 596–7, 646–7, 692, 704–6,
720–1
Art. 48(1), 48, 504–5, 550–1, 596–7, 646, 705–6, 722
Art. 48(1)(a), 370, 489, 550–1, 646–7
Art. 48(1)(b), 489, 550–1, 646–7
Art. 48(2), 373, 476, 551, 555, 646, 704–5
Art. 48(2)(a), 489, 564–5
Art. 48(2)(b), 503, 564–5, 596–7
Art. 48(3), 554, 557–8, 646–7
Art. 49, 40–1, 48, 685–8, 698–9, 702–3, 721
Art. 49(2), 48, 292–3, 702–3
Arts. 49 to 53, 686
Arts. 49 to 54, 292–3
Art. 50, 48, 482–3, 688–91, 693–4, 697, 721
Art. 50(1), 689–90
Art. 50(1)(a), 690–1
Art. 50(1)(b), 482–3, 693
Art. 50(1)(c), 693–4
Art. 50(1)(d), 691–2
Art. 50(2), 689–90
Art. 50(2)(a), 696
Art. 50(2)(b), 697
Art. 51, 48, 697–9, 722
Art. 52, 41, 48, 85–6, 700–2, 722
Art. 52(1), 700
Art. 52(1)(a), 700–1
Art. 52(1)(b), 700–1
Art. 52(2), 701
Art. 52(3), 701–2
Art. 52(3)(a), 702
Art. 52(3)(b), 701–2
Art. 52(4), 702
Art. 53, 48, 85–6, 702–3, 722
Art. 54, 48, 371, 703–7, 709, 722
Art. 54(3) and (4), 53–4
Art. 55, 48, 65, 99, 103–5, 246, 276–7, 356, 460–1, 647, 706–7, 710–11,
722
 table of treaties lxiii

Art. 56, 48, 108–10, 277–8, 680, 723

Art. 57, 48, 188, 345–6, 396, 706–7, 723
Art. 58, 48, 667–8, 723
Art. 59, 48, 108, 706–7, 723
ILC Draft Articles on the Responsibility of International Organizations
2011, ILC Report 2011, UN Doc. A/66/10, 54 (DARIO), 51, 204, 339–40,
343–5, 349–50, 352–3, 396, 402–3, 405, 423–4
Pt 1, 761
Pt 1, Ch. II, 720
Pt 2, 762, 768
Pt 2, Ch. I, 762
Pt 2, Ch. II, 730, 762–3
Pt 2, Ch. III, 763–4
Pt 2, Ch. IV, 720, 764–5
Pt 2, Ch. V, 765–7
Pt 3, 768, 772–3
Pt 3, Ch. I, 768
Pt 3, Ch. II, 769–70
Pt 3, Ch. III, 770–1
Pt 4, 771–5
Pt 4, Ch. I, 771–3
Pt 4, Ch. II, 766, 773–5
Pt 5, 210, 343–6, 396, 775–7
Pt 6, 777
Art. 1, 761
Art. 1(2), 343–4
Art. 2, 761
Art. 2(a), 188–9, 425
Art. 2(c), 411
Art. 2(d), 68
Art. 3, 348–9, 762
Art. 3 (draft), 348–9
Art. 4, 348–9, 762
Art. 5, 762
Art. 5 (draft), 195–7, 205–6, 349–50
Art. 6, 68, 762
Arts. 6 to 8, 763
Arts. 6 to 9, 189–90, 343–4
Art. 7, 68, 193–7, 203–6, 209–10, 346–7, 349–50, 352–3, 762
lxiv table of treaties

Art. 8, 763
Art. 9, 763
Art. 10, 763
Art. 11, 763
Art. 12, 763
Art. 13, 764
Art. 14, 402–3, 405, 411–12, 764
Arts. 14 to 17, 765
Arts. 14 to 18, 50–1
Arts. 14 to 19, 343–4
Art. 15, 418, 764
Art. 16, 422, 764
Art. 17, 765
Art. 18, 765
Art. 19, 765
Art. 20, 765
Art. 21, 765
Art. 22, 766
Art. 23, 766
Art. 24, 766–7
Art. 25, 767
Art. 26, 767
Art. 27, 767
Art. 28, 768
Art. 29, 768
Art. 30, 768, 772–3
Art. 31, 768
Art. 32, 768
Art. 33, 768
Art. 34, 769
Art. 35, 769
Art. 36, 769
Art. 37, 769
Art. 38, 770
Art. 39, 770
Art. 40, 770
Art. 41, 770–1
Art. 42, 770–1
Art. 43, 771
Art. 44, 771–3, 775
 table of treaties lxv

Art. 45, 771–2

Art. 45(2), 772–3
Art. 46, 669, 772–3
Art. 47, 772
Art. 48, 50–1, 351–2, 772
Art. 49, 368–9, 772–3
Art. 49(1) to (3), 775
Art. 50, 773
Art. 51, 773–4
Art. 52, 774
Art. 53, 774
Art. 53(2)(b), 68
Art. 54, 774
Art. 55, 775
Art. 56, 775
Art. 57, 210, 775
Art. 58, 210, 396, 405, 410–13, 422, 775–6
Art. 58(1), 411
Art. 58(2), 411, 418
Arts. 58 to 60, 345–6
Arts. 58 to 62, 50–1
Art. 59, 210, 396–7, 417–18, 422, 776
Art. 59(1), 418
Art. 59(2), 418
Art. 60, 210, 396–7, 422, 776
Art. 61, 210, 345–6, 396, 422–3, 430–4, 776
Art. 61(2), 210
Art. 62, 189, 346, 396, 422–4, 427–30, 777
Art. 62(1), 346
Art. 62(1)(a), 428–9
Art. 62(1)(b), 429
Art. 63, 777
Art. 64, 777
Art. 65, 777
Art. 66, 777
Art. 67, 777
ILC Draft Articles on the Responsibility of States for Internationally
Wrongful Acts, as adopted in 1996, ILC Ybk 1996/II(2), 58 (1996
Draft Articles), 37–9, 43, 55, 58, 60–1, 64, 77–8, 88–90, 97–8, 104,
107–8, 113, 137, 181–2, 221–2, 228, 253–4, 288, 303, 305–6, 312–13,
lxvi table of treaties

327, 392–4, 402, 481, 485, 503, 507–8, 511, 524, 531–2, 578,
615, 619
Pt 1, 37, 49–50, 54–5, 391–2, 542–4, 743, 751–3
Pt 1, Ch. I, 743
Pt 1, Ch. II, 403, 743–6
Pt 1, Ch. III, 39, 746
Pt 1, Ch. IV, 698, 749–50
Pt 1, Ch. V, 598, 281–2, 750–1
Pt 2, 39–40, 49–50, 391–2, 542–5, 751
Pt 2, Ch. I, 751–3
Pt 2, Ch. II, 753–5
Pt 2, Ch. III, 114, 393–4, 755–6
Pt 2, Ch. IV, 756–7
Pt 3, 49–50, 97, 553–4, 757–8
Art. 1, 37–8, 50, 55–7, 743
Arts. 1 to 35, 49–50
Art. 2, 62, 743
Art. 3, 37–8, 55–7, 743
Art. 4, 743
Art. 5, 116–17, 542–4, 743
Arts. 5 to 10, 745–6
Art. 6, 744
Art. 7, 127, 744
Art. 7(2), 127
Art. 8, 141, 143–4, 146–7, 151–2, 154, 156, 744
Art. 8(a), 166–8
Art. 8(b), 166–8
Art. 9, 133–5, 744
Art. 10, 29–30, 133–4, 137, 143, 152, 454–5, 745
Art. 11, 745
Art. 12, 745
Art. 13, 745
Art. 14, 170, 172, 179–80, 423–4, 693, 745–6
Art. 14(1), 179
Art. 15, 172–3, 181–2, 746
Art. 15bis, 181–2
Art. 16, 37, 215, 746
Art. 17, 37, 215, 746
Art. 18, 244, 746–7
Art. 18(1), 245
 table of treaties lxvii

Art. 18(2), 245, 250–1

Art. 19, 37–40, 47, 52–3, 61, 65–7, 88, 106, 365–6, 391–4, 747
Art. 19(1), 37, 215
Art. 19(4), 391
Art. 20, 220–3, 748
Art. 21, 220–3, 748
Art. 22, 584, 748
Art. 23, 224, 226–31, 342–3, 748
Art. 24, 254–5, 257, 303, 748
Arts. 24 to 26, 244
Art. 25, 270–1, 310–12, 749
Art. 25(1), 232
Art. 25(2), 266, 270
Art. 25(3), 271
Art. 26, 749
Art. 27, 327–8, 337–8, 399–401, 409, 749
Art. 27(b), 400
Art. 28, 328, 413–14, 419, 749–50
Art. 28(1), 413, 415
Art. 28(2), 413, 419
Art. 28bis, 328
Art. 29, 285–6, 750–1
Art. 30, 750
Art. 30bis, 680
Art. 31, 298–9, 487–8, 750–1
Art. 32, 303, 750–1
Art. 33, 305–8, 314, 751
Art. 34, 277–8, 289, 291–2, 751
Art. 35, 65–6, 751
Art. 36, 751
Art. 37, 487–8, 752
Art. 38, 752
Art. 39, 107–8, 752
Art. 40, 37–8, 67, 365–7, 390–3, 491, 542–5, 549–50, 647, 704, 752–3
Art. 40(1), 393–4
Art. 40(2), 67, 391–4
Art. 40(2)(e)(iii), 392–3
Art. 40(2)(f), 37, 55, 550–1
Art. 40(3), 391–3
Art. 41, 234, 393–4, 464, 753
lxviii table of treaties

Arts. 41 to 46, 755

Art. 42, 753
Art. 42(1), 475, 507
Art. 42(3), 482–4
Arts. 42 to 46, 615
Art. 43, 487–8, 508, 510–11, 544–5, 754
Art. 43(c) and (d), 756
Art. 44, 54–5, 495, 648, 754
Art. 44(2), 485, 531–2
Art. 45, 54–5, 517, 754
Art. 45(1), 485
Art. 45(2)(c), 524
Art. 45(3), 756
Art. 46, 470, 475, 755
Art. 47, 686, 704, 755
Art. 48, 702, 755
Art. 48(1), 701
Arts. 48 to 50, 755
Art. 49, 487–8, 544–5, 756
Art. 50, 688–9, 690–1, 696, 756
Art. 51, 756
Arts. 51 to 53, 392–4
Art. 52, 756
Art. 53, 756
Art. 54, 86, 96, 704–6, 755, 757
Art. 55, 757
Art. 56, 757–8
Art. 57, 757–8
Art. 58, 758, 760
Art. 58(2), 97
Art. 59, 758
Art. 60, 758
Art. 60(2), 760
Annex I, 757, 759–60
Annex II, 1619, 758, 760
ILC Draft Articles on State Responsibility (as proposed by F. V. García
Amador, 1961), 733–42
Title I, 733–4
Title II, 734–8
Title III, 738–42
 table of treaties lxix

Ch. I, 733–4
Ch. II, 734–5
Ch. III, 735–6
Ch. IV, 736–7
Ch. V, 737–8
Ch. VI, 738–40
Ch. VII, 740–1
Ch. VIII, 741–2
Art. 1, 35, 733
Art. 1(2)(c) and (d), 734–5
Art. 2, 35, 734
Art. 3, 734–5, 736–9
Arts. 3 to 13, 35
Art. 4, 735
Art. 5, 35, 735
Art. 6, 735
Art. 7, 735–6, 738
Art. 8, 736, 738
Art. 9, 736
Art. 10, 736–7
Art. 11, 737
Art. 12, 737
Art. 13, 737
Art. 14, 738
Art. 15, 738
Art. 16, 738
Art. 17, 738
Art. 17(4), 741–2
Art. 18, 738–9
Art. 19, 739
Art. 19(2), 736–7
Art. 20, 739–40
Art. 21, 738–40
Art. 21(1), 740
Art. 22, 739–41
Art. 22(2), 735–6
Art. 23, 740–1
Art. 24, 741
Art. 25, 741
Art. 26, 741–2
lxx table of treaties

Art. 26(4), 738

Art. 27, 738–40, 742
Art. 28, 35
ILC Draft Convention on the International Responsibility of States for
Injuries to Aliens 1961, (1961) 55 AJIL 548, 34–5, 38–9, 500
Section A, 104
Section B, 104
Rome Statute of the International Criminal Court, 17 July 1998, 2187
UNTS 3 (ICC Statute; Rome Statute), 81, 667–8
Art. 5(1), 367
Art. 6, 46, 266–7, 380–1
Art. 7, 46
Art. 7(1), 298–9
Art. 8, 46
Art. 8bis(1) and (2), 667
Art. 25(1), 668
Art. 25(4), 667–8
Art. 27, 667
Art. 75(1) and (2), 641–2
Art. 79(1), 642
Art. 79(2), 642
Statute of the International Court of Justice, 26 June 1945, 15 UNCIO 355
(ICJ Statute), 653–4
Art. 31(5), 670
Art. 36, 627–8
Art. 36(2) and (3), 240
Art. 37, 627–8
Art. 38(1), 87
Art. 38(1)(a), 41–2
Art. 38(1)(b), 41–2
Art. 38(1)(c), 41–2, 331
Art. 53(2), 627–8
Art. 59, 654
Art. 60, 225–6
Art. 62, 650–3
Art. 63, 650–4
United Nations Convention on the Law of the Sea, 10 December 1982,
1833 UNTS 3 (UNCLOS), 59–60, 608
Art. 18(2), 299–302
Art. 61, 223–4
 table of treaties lxxi

Art. 110(3), 63
Art. 194, 59–60
Art. 263, 62–3
Art. 282, 603–4
Annex IX, 721
Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95
(VCDR), 228–9, 260
Preamble, 696
Art. 22, 697
Art. 22(1), 263–4
Art. 22(2), 184–6, 228–9, 259–60
Art. 22(3), 263–4
Art. 24, 697
Arts. 25 to 27, 263–4
Art. 29, 263–4, 697
Art. 44, 697
Art. 45, 696–7
Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331
(VCLT), 52, 242, 315–16, 402, 678–9, 682–3
Art. 7(2), 71
Art. 8, 71
Art. 23, 68
Art. 26, 678–9
Art. 28, 242, 246
Art. 31, 243–4, 249–50
Art. 31(3)(c), 375–6
Art. 34, 409–10
Art. 35, 409
Art. 45, 70, 73–4, 558, 668
Art. 53, 315–16, 379, 390, 552, 690–1
Art. 54(b), 283–4
Art. 60, 52, 271, 282–3, 545, 676, 678–9, 681–4, 695
Art. 60(1), 545–6
Art. 60(2), 646
Art. 60(2)(b), 546
Art. 60(2)(c), 67, 547
Art. 60(3)(a), 233–4
Art. 60(4), 695
Art. 60(5), 547, 682
Art. 61, 282–3, 299–301
lxxii table of treaties

Art. 62, 306–7

Art. 64, 250, 315–16
Art. 65, 67–8, 554
Art. 67, 68
Art. 70(1)(b), 52, 251–2
Art. 72(1)(b), 52
Art. 73, 52, 290, 684
 Table of reports of Special Rapporteurs
on State Responsibility

1. F. V. Garcı́a Amador (1955–61)

First Report ILC Ybk 1956/II, 173 36
Second Report ILC Ybk 1957/II, 104 34–6
Third Report ILC Ybk 1958/II, 47 36, 275–6, 567, 569–70, 573, 576–7
Fourth Report ILC Ybk 1959/II, 1 36
Fifth Report ILC Ybk 1960/II, 41 36
Sixth Report ILC Ybk 1961/II, 1 36, 38, 292

2. R. Ago (1963–79)
First Report ILC Ybk 1969/II, 125 36
First Report Addendum ILC Ybk 1971/II(1), 193 36
Second Report ILC Ybk 1970/II, 177 36, 216, 490
Third Report ILC Ybk 1971/II(1), 199 36
Fourth Report ILC Ybk 1972/II(1), 71 36, 181–2
Fifth Report ILC Ybk 1976/II(1), 3 36, 390–1
Sixth Report ILC Ybk 1977/II(1), 3 36
Seventh Report ILC Ybk 1978/II(1), 31 36, 327–9, 337–8, 343, 401, 403
Eighth Report ILC Ybk 1979/II(1), 3 36, 328, 687–8
Eighth Report Addendum ILC Ybk 1980/II(1), 13 36, 290

3. W. Riphagen (1979–86)
Preliminary Report ILC Ybk 1980/II(1), 107 36–7, 692, 693
Second Report ILC Ybk 1981/II(1), 79 36–7, 464, 475
Third Report ILC Ybk 1982/II(1), 22 36–7, 390–1, 542–4
Fourth Report ILC Ybk 1983/II(1), 3 36–7, 390–1, 542–6, 678

lxxiii
lxxiv table of reports

Fifth Report ILC Ybk 1984/II(1), 1 36–7, 678

Sixth Report ILC Ybk 1985/II(1), 3 36–7, 678
Seventh Report ILC Ybk 1986/II(1), 1 36–7

4. G. Arangio-Ruiz (1987–96)
Preliminary Report ILC Ybk 1988/II(1), 6 37
Second Report ILC Ybk 1989/II(1), 1 37, 475, 495, 501–2, 509, 524, 530–1,
536–7
Third Report ILC Ybk 1991/II(1), 1 37, 687–8, 699
Fourth Report ILC Ybk 1992/II(1), 1 37, 699
Fifth Report ILC Ybk 1993/II(1), 1 37
Sixth Report ILC Ybk 1994/II(1), 3 37
Seventh Report ILC Ybk 1995/II(1), 3 37, 390–1
Eighth Report ILC Ybk 1996/II(1), 1 37, 390–1

5. J. Crawford (1997–2001)
First Report ILC Ybk 1998/II(1), 1 51, 60–2, 113–16, 132–3, 137, 141,
143–4, 146–7, 149, 151–2, 154, 161, 172–4, 176–7, 181–2, 216, 390–4,
423–4, 441, 447
Second Report ILC Ybk 1999/II(1), 3 97, 215, 220–3, 230, 233, 245,
249–51, 253–4, 266, 270–9, 281–6, 288, 290–2, 300–1, 305–8, 315–20,
325, 328–9, 337–9, 341, 343, 345–6, 400, 402, 405–6, 408–9, 413,
415–17, 421, 567, 572, 580, 584, 678, 680, 684
Third Report ILC Ybk 2000/II(1), 3 40, 54–5, 72, 105, 108, 110, 276–8, 326,
325, 327–30, 332, 334–5, 343–4, 356–7, 368, 465, 470, 480, 482–3,
487–8, 491, 493, 496, 501, 503, 506, 507–9, 517–18, 524–5, 528–9,
531–2, 537, 544, 555, 560, 567–8, 623–4, 645–8, 657, 668, 673–4,
676–8, 680–9, 690, 691–3, 696, 698–9, 701–5, 709
Fourth Report ILC Ybk 2001/II(1), 3 40, 90–1, 367–8, 371, 485, 487, 544–5,
553–4, 684, 686, 689, 704–6
Part I
The framework of responsibility
1 Historical development

1.1 Introduction
Any system of law must address the responsibility of its subjects for
breaches of their obligations. For a long time, however, responsibility
was ignored or touched on only incidentally in international law doc-
trine. Writers concerned themselves with substantive fields such as the
law of the sea, the laws of war, diplomatic relations or the law concern-
ing treatment of foreigners. Their main interest was in identifying spe-
cific rules and practices associated with each field and, sometimes, in
identifying the mechanisms by which states might seek to vindicate
their rights, especially through reprisals and war. When they treated
responsibility at all, writers treated it as an incident of the substantive
law, lacking any systematic order or basis. International responsibility
was not a discrete subject for study until the late nineteenth century. By
this time it was naturally thought of exclusively in terms of state respon-
sibility, states being seen by that time as effectively the only inter-
national actors.
Vitoria, Suarez, Bodin and other early writers did not identify
responsibility as a legal category. They tended to approach the ques-
tion from a theological point of view: the sovereign by definition
answered to no temporal authority, answering only to God.1 Pierino
Belli and Alberico Gentili gave some consideration to the issue of the
responsibility of citizens for the wrongs of the sovereign (and vice

This introduction is drawn in part from a paper co-authored with Thomas Grant and
Francesco Messineo entitled ‘Towards an International Law of Responsibility: Early
Doctrine’, which appeared in Boisson de Chazournes and Kohen (eds.), International Law and
the Quest for its Implementation: Liber Amicorum Vera Gowlland-Debbas (2010) 377. Their
contribution is gratefully acknowledged.
1
Bodin, Six livres de la République (1576), Bk I, Ch. VIII (trans. Tooley 1955, 25ff.).

3
4 the framework of responsibility

versa).2 Both, however, lacked any secure concept of representation of

the citizen by the sovereign and as such could treat issues of responsi-
bility only in a contingent, ad hoc way. Much the same is true of
Grotius, that paradigm intermediary between old and new. It is only
with Zouche and Pufendorf that tentative ideas of international obli-
gations and their breach (especially breach of treaty) come to be
considered, although still unsystematically.3 Indeed, it is not before
the second half of the nineteenth century that a recognizably modern
conception of responsibility appeared,4 and even later a monograph
concerned wholly with the responsibility of states in international law.5

1.2 Intimations of responsibility in early international

law writings
1.2.1 Italian precursors of Grotius: Belli and Gentili
Bodin is of no particular interest here, given that he proceeded along the
lines of earlier writers such as Vitoria and Suarez. A secular approach
was needed before responsibility could be considered as a legal topic.6
The relevant pre-Grotian authors here were Belli and Gentili.7 Neither
identified international responsibility as a legal category, but both
addressed the question of the bond between prince and people with
regard to obligations towards other princes: why were citizens to be held
responsible for the wrongs of their princes?
2
Belli, De Re Militari et Bello Tractactus (1563), Pt X, Ch. II (trans. Nutting 1936, 296–8);
Gentili, De Legationibus (1594), Bk II, Ch. VI (trans. Laing 1924, 72–6); Gentili, De Jure Belli
(1612), Bk III, Chs. XXIII–XXIV (trans. Rolfe 1933, 421–9).
3
See e.g. Zouche, Iuris et judicii fecialis (1650), Pt I, §§V, X (trans. Brierly 1911, 27, 53); Pt II,
§V (106–11); Pufendorf, Elementorum jurisprudentiae universalis (1672), Bk I, Defs. XII, XXI
(trans. Oldfather 1931, 71–112, 199ff.); Bk II, Axiom I, §9 (215–16). See also, later on, van
Bynkershoek, Questionum juris publici (1737), Bk II, Ch. X (trans. Frank 1930, 190–5); and,
more explicitly Wolff, Jus gentium methodo scientifica pertractatum (1764), Ch. III, §§315–318
(trans. Drake 1934, 161ff.).
4
See e.g. Heffter, Le droit international public de l’Europe (1857).
5
Eagleton, The Responsibility of States in International Law (1928).
6
See e.g. Bodin (1576), Bk I, Ch. VIII (35): ‘the prince is bound as much by the law of
nations, but no more, than by any of his own enactments. If the law of nations is
iniquitous in any respect, he can disallow it within his own kingdom, and forbid his
subjects to observe it, as was done in France in regard to slavery. He can do the same in
relation to any other of its provisions, so long as he does nothing against the law of God. If
justice is the end of the law, the law the work of the prince, and the prince the image of
God, it follows of necessity that the law of the prince should be modelled on the law of
God.’
7
See e.g. Belli (1563), Pt X, Ch. II (296–8); Bodin (1576), Bk I, Ch. VIII (25ff.); Gentili (1594),
Bk II, Ch. VI (72–6); Gentili (1612), Bk III, Chs. XXIII–XXIV (421–9).
 historical development 5

Pierino Belli of Alba (1502–75) is considered by some to be a precursor

of Gentili and Grotius, by others to be the scrappy author of a botched
collection of ancient authorities mixed with personal anecdotes. The
latter view owes much to Gentili, who deprecated Belli’s work even as
he apparently made unacknowledged use of it.8 Belli’s role has been
re-evaluated in the light of his observations concerning cruelty and the
absolute prohibition against torturing prisoners of war.9
Belli did not address international responsibility as a separate legal
category, nor did he have any consistent theory of the state. However, he
did consider the question whether ‘a sovereign of a free state may make
peace and, by its terms, remit payment for losses inflicted upon its own
citizens and subjects’:10
Baldus cites Hostiensis as saying that this is not permissible, unless the populace
and those who have suffered the loss give their consent, and Panormitanus, too,
seems to agree; but, although this is generally true, there is exception if the
sovereign takes such action for reasons that concern the public weal, for example
in the present case, when he so acts in order to secure the blessing of peace. Decio
warns that the above must not be forgotten, citing many passages in its confirm-
ation, and declaring that it is the commonly accepted view, from which no one
dissents. But Joannes Lupus states that if peace cannot be made on other terms,
the populace must acquiesce in the action of a ruler who remits losses; for,
although he thereby acts much to the disadvantage of his subjects, on the other
hand he benefits them largely in securing peace for them.11

Thus the principle is that the consent of the population is required

before entering into a peace treaty waiving payment of war damage. This
implies that the ruler is still only exercising a form of individual power
dependent on agency: responsibility relations are in principle individual,
not communal. But this is qualified by something like an agency of
necessity – the necessity to make peace and thereby benefit the people.
Belli took his argument a step further, in order to consider responsi-
bility of the sovereign for losses suffered by the enemy. If the sovereign
can be responsible towards his subjects when he wages an unjust war or
carries on an unjust resistance to a just war,
[m]uch less, therefore, will he be free from responsibility for losses inflicted by
his soldiers upon the opposing party, whatever may be said in the compact and
terms of the peace.

8
Cavaglieri, in Belli (1563), Vol. II (11a–28a).
9
Comba and Vidari (eds.), Un giurista tra principi e sovrani: Pietrino Belli a 500 anni dalla
nascita (2004).
10 11
Belli (1563), Pt X, Ch. II (296). Ibid.
6 the framework of responsibility

And here applies a remark of Barbazza, who cites Petrus de Ancharano, to the
effect that even though states by compact have agreed that reparation be not
made for the plundering on either side, the plunderers will nevertheless not be
safe on the score of conscience; in fact, as he says, the owner of the stolen
property may sue for it, the pact notwithstanding.12

The religious argument (on which Belli dwells further, suggesting

recourse to the ecclesiastical tribunal to recover losses against one’s
sovereign) and the legal one are conflated; and one should be wary of
an English translation of 1936 rendering the Latin civitates unequivocally
as ‘states’.13 But, again, this passage shows the complex relationship
between the sovereign and its population. Belli sought to clarify this
with an example:
[At times, war] is made [between an independent and free sovereign and its]
subject – e.g. if the King of France were at war with the Duke of Bourbon, [he]
would not be able in the peace pact to excuse the Duke and his followers for
losses which had been inflicted upon the subjects of the King – unless the King
were willing to reimburse them out of his own treasury.14

Another form of responsibility applies in time of war:

[S]tates which in time of war occupy strongholds [taken from others than the
enemy] that they afterward refuse to restore except on payment of money, do
wrong in extorting this price; and they may be sued for the money, notwith-
standing the terms of the peace that has ensued.15

Nor can one look to Alberico Gentili (1552–1608) for an autonomous

concept of responsibility. In his work on fetial law Gentili devotes a
chapter to the question of countermeasures in the specific case of ‘one
who has injured the ambassador of another’.16 He holds that ‘the right of
embassy does not hold for the envoy of a sovereign who has violated that
right’:
To withhold rights from one who has violated them is believed to be not a
violation but a rendering of justice. Francis I, the French king, when he heard
that his ambassador was being detained by the Emperor Charles, retaliated by
detaining the ambassador of the Emperor.17

This rule was to be applied restrictively – that is, only when the
ambassadors had been injured, because ‘[u]nder other circumstances
no violence should be done to ambassadors, not even if other laws of

12 13
Ibid. (297). Ibid. Cf. Vol. I (130b, line 11) with Vol. II (297, line 16).
14 15 16 17
Ibid. (298). Ibid. Gentili (1594), Bk II, Ch. VI (72ff.). Ibid. (73).
 historical development 7

nations have been violated, for none is to be compared with this in

majesty and prestige’.18
In response to the question ‘what reason is there for punishing the
guilty in the person of the innocent?’,19 Gentili replies,
But how can he be called innocent who is the personal representative of one who
is notoriously guilty? If this were possible, it would never be permissible to take
action against the subjects of a sovereign on account of an offense committed by
the sovereign, and there would be no war.20

This remark underlines the problem of the relation between the

individual and his sovereign, common to Pierino Belli and in general to
all early attempts to detach that relation from theological consider-
ations. Gentili recognized that it was problematic to hold subjects
responsible for their sovereign’s acts (which Vitoria and perhaps Bodin
did not), but none of the early writers had a solution, perhaps because
this would have required a radical rethinking of just war theory.
In De Jure Belli, Gentili deals at one point with the relation between the
conduct of the sovereign and the conduct of the population. When a
peace treaty is signed, will the actions of the subjects constitute a breach
of the treaty if they are contrary to the obligations undertaken by the
prince?
[T]he question arises, whether not only the people as a whole but also individuals
should be regarded as included in a treaty, when no mention is made specifically
of individuals. Decio decided that if the Venetians promised not to do something,
the promise was understood to mean that the people as a whole would not do it;
for an arrangement which looks to a large number as a whole does not have
regard to individuals. Therefore individuals do not break a peace, as was decided
by Baldus. ‘Private individuals do not harm the whole body politic.’ . . . That is,
unless it was expressly stipulated in the treaty, that not even private individuals
should offend; for in that case, the peace would certainly be broken.21

In the last chapter (XXIV) of Book III, Gentili addressed the concept of
violation of a treaty:
A treaty is not violated if one departs from its provisions for a legitimate reason,
as Ulpian and Pomponius say of a partnership of individuals . . . If one of the
conditions on which a partnership was based is not observed by one of the
partners, or if it is not permitted to enjoy the benefits for which the partnership
was formed, there is good reason for dissolving the partnership . . . It is to

18 19 20
Ibid. (74). Ibid. (73). Ibid. (73–4).
21
Gentili (1612), Bk III, Ch. XXIII (421).
8 the framework of responsibility

be understood, however, that this one thing must be a matter of prime

importance . . . and reason also tells us (whatever some may also maintain about
trivial causes) that an important contract should not be annulled because of an
insignificant matter. Trivial things are always happening, simply because they
are trivial, and therefore all contracts would be most unstable, if it were lawful to
withdraw from them on account of some trivial and unimportant matter. The
justice of the law of nations does not allow this. But is war to be made because of
a trivial reason? The law in that case is buried under the syllables and fine
distinctions of the pettifoggers.22

Gentili mentions some reasons why some actions might not constitute a
breach of treaty, or are to be excused:
Certainly necessity and superior force will excuse an ally from being considered a
breaker of treaties . . . Furthermore, the peace will not be said to be broken if the
failure to observe a given condition does not result in offence; for example, if it
was promised that something should be done within a given number of days, and
it was not done.23

1.2.2 Grotius: civil law obligations with no equivalent in the

law of nations
Not even Hugo Grotius (1583–1645) identifies international responsibil-
ity as a legal category, despite his more systematic approach. He deals
with responsibility for war but in the context of individual leaders and
their punishment.24 In a chapter ‘Of the Communication of Punish-
ments’ he discusses inter alia ‘the distinction between that which is
inflicted directly and that which comes as a consequence’.25 In keeping
with his rudimentary approach to the state, he makes no clear distinc-
tion between individual and state responsibility.26
This can be seen in Chapter XVII of Book II, entitled ‘Of the Damage
done by an Injury, and of the Obligation thence arising’. The chapter is
largely devoted to obligations under the law of nature or under the civil
laws. As to the former, Grotius refers to
that Right, which arises by the Law of Nature from an Injury received. We here
call any Fault or Trespass, whether of Commission or Omission, that is contrary

22 23
Ibid., Ch. XXIV (427). Ibid. (428–9).
24
Grotius, De Iure Belli ac Pacis (1625), Bk III, Ch. XI, §§V–VII (ed. Tuck 2005, 1431–9).
25
Ibid., Bk II, Ch. XXI (1053); also Bk II, Ch. XXI, §II, heading (1055) (‘The State or the
Superior Powers are accountable for the Crimes of their Subjects, if they know of them,
and do not prevent them, when they can and ought to do so’).
26
See Onuma, in Onuma (1993) 57, 88–90.
 historical development 9

to a Man’s Duty, either in respect of his common Humanity, or of a certain

particular Quality, an Injury. From such a Fault or Trespass there arises an
Obligation by the Law of Nature to make Reparation for the Damage, if any be
done.27

There follows a rather miscellaneous discussion of property, rights and

compensation within civil society. Only two paragraphs deal with issues
of the law of nations, and in each the point is to distinguish such issues
from those governed by the law of nature or the civil law. Thus whereas
one who ‘procures a Contract or Promise by Force, Fraud or unjust Terror,
is bound to release the Person who made the Contract or Promise, from
any Obligation of Performance’,28 the same is not true for public wars:
[A]s it is established by the Consent of Nations, that all Wars declared in Form,
and carried on by the Authority of the supreme Powers on both Sides, shall be
accounted lawful, as to the outward Effects or Consequences of them, . . . so
likewise is the Fear whereby one has been induced to do any Thing in such a
War, so far to be accounted just, that if any Advantage be obtained, it cannot be
required by the adverse Party. And in this Sense may be admitted the Distinction
made by Cicero, between an Enemy in Form, with whom, says he, we have many
Rights in common, that is, by the Consent of Nations, and Pirates, and Robbers.
For if these extort any Thing from us by Fear we may require it, unless we bind
ourselves by an Oath not to require it; but of an Enemy we cannot. Wherefore,
what Polybius saith of the Carthaginians, that they had just Cause to enter into the
second Punick War, because the Romans had declared War against them, and
extorted from them the Island Sardinia, and a great Sum of Money, while they
were engaged in Quelling a Sedition of some People they had taken into their
Service, has indeed some Shew of Equity according to the Law of Nature, but is
contrary to the Law of Nations.29

The point emerges even more clearly when considering the obligations
of sovereigns to make reparation for damage done by their soldiers; such
damage, done without the superior’s individual fault, are compensable
only under the civil law:
Nor are Kings bound to make Reparation, if their Soldiers, either by Sea or Land,
shall do their Allies any Damage, contrary to their Command; which is proved by
the Testimonies of France and England. But if any one be bound to make Repar-
ation for what his Minister or Servant does without his Fault, it is not according
to the Law of Nations, which is the Point now in Question, but according to the
Civil Law, and even that Rule of the Civil Law is not general; it regards only the
Masters of Ships, and some others, for particular Reasons.30

27 28
Grotius (1625), Bk II, Ch. XVII, §I (884). Ibid., Bk II, Ch. XVII, §XVII (892).
29 30
Ibid., Bk. II, Ch. XVII, §XIX (893–4). Ibid., Bk. II, Ch. XVII, §XX.2 (895).
10 the framework of responsibility

By contrast, Grotius’s work on civil (Roman-Dutch) law contains a

general account of obligation: obligations can either arise from ‘the duty
of benevolence’, ‘the duty of keeping faith’ or ‘the duty of making
amends for wrongdoing’.31 This is further explained, and the kinds of
obligation arising from delict and generally from an unlawful act are
considered.32
One reason why none of the early writers identified responsibility as a
legal category, or dealt with it other than incidentally, was the virtual
absence of procedures and institutions at the international level that
might have required clear distinctions to be drawn between the state
and its nationals, or that might have focused on excuses for non-
performance or on the content of the obligation of reparation. Such
institutions as there were – short of war itself – tended to create more
difficulties than they resolved and were prone to abuse – measures
against ambassadors, for example, or the system of letters of marque.33
Another reason was the rudimentary treatment of the law of obliga-
tions in Roman law. Ibbetson notes that by the time of Justinian there
had developed a fairly elaborate classification of rights as in rem or in
personam; within the latter category, contract, delict, quasi-contract and
quasi-delict were distinguished.34 Nonetheless, according to Zweigert
and Kötz,
Roman lawyers . . . never arrived at the general principle that everyone is respon-
sible for the harm he is to blame for causing. This principle had to wait until the
seventeenth and eighteenth centuries for its promulgation by the great natural
lawyers, especially Grotius and Domat. Thereafter it made its way into many of
the codes of Europe.35

While Grotius may have promulgated such general principles in his

work on the civil law, they are not to be found in his work on the law
of nations.

31
Grotius, Inleiding tot de Hollandsche Rechts-geleertheyd (1631), Bk III, Ch. I, §3 (ed. and trans.
Lee 1926, 293).
32
Ibid., Ch. XXXII (459ff.).
33
Letters of marque and reprisal were rejected over the course of the nineteenth century.
The European states, by the Declaration of Paris, 30 March 1856, 15 NRG (1st ser.) 791,
had agreed that letters of marque were unlawful. The United States declared in the Civil
War (1861–5) and the Spanish–American War (1898) that it would not issue letters of
marque. See Winthrop, (1894) 3 Yale LJ 116; Maclay, A History of American Privateers
(1899), xxiii.
34
Ibbetson, A Historical Introduction to the Law of Obligations (1999), 1–10, esp. 6–10.
35
Zweigert and Kötz, An Introduction to Comparative Law (1998), 597. See also von Bar, 1
The Common European Law of Torts (1998), 1–5.
 historical development 11

In the period after Grotius, the notion of international obligations

arising from the breach of treaties and other wrongs gradually found
its way into legal thinking, but the process was slow, hesitant and
uneven. Zouche conceptualized wrongs among states either at peace or
at war, and identified certain questions of the imputability of actions to
the sovereign and of excuses for breach of treaties and other wrongs.36
Pufendorf did not separate international law from other natural law
governing relationships between citizens: he provided in his Elementa
an account of the law of obligations and of the rules governing ‘bad
actions’ (violations of such obligations) and ‘demerit’, and made use of
examples drawn from relations between princes. But his framework is
not the law of nations as such; it is the universal natural law which
governs both nations and individuals.37 On the other hand, Rachel38 and
Textor39 did not give any account of a general law of the obligations of
states (and they would have rejected Pufendorf’s universalistic method).
A more practical approach was taken by van Bynkershoek, who criti-
cized the Machiavellian approach to the law of treaties, and identified
pacta sunt servanda as a special type of non-legal but morally and practic-
ally binding rule which must be observed by princes.40 He also con-
sidered justifications for non-performance, but concluded with some
disenchanted remarks on the actual practice of sovereigns with regard
to treaties.41 Finally, it is with Wolff that the concept of reparation to a
sovereign for a wrong done by another (or by one of its citizens) is
expressed, albeit still without clarity or system.42

1.2.3 Zouche: breaches of treaties

Richard Zouche (1590–1661) sought to expose the basic elements of jus
inter gentes of his time. He described ‘wrongs’ among states as being
either ‘between those at Peace’ or ‘between Belligerents’. Zouche
described the former as follows:

36
See e.g. Zouche (1650), Pt I, §§V, X (27, 53), Pt II, §V (106–11).
37
Pufendorf (1672), Bk I, Defs. XII, XXI (71–112, 199ff.), Bk II, Axiom I, §9 (215–16).
38
Samuel Rachel (1628–91) emphasized the importance of treaties among nations, but he
did not give the question of responsibility for breach autonomous consideration: De Jure
Naturae et Gentium Dissertationes (1676).
39
Johann Wolfgang Textor (1638–1701) dedicated a chapter of his Synopsis to treaties and
breach of treaty, but he did not identify either responsibility or reparation as separate
legal concepts: Synopsis juris gentium (1680), Chs. XXIV–XXV (trans. Bate 1916, 258ff.).
40 41
Van Bynkershoek (1737), Bk II, Ch. X (190–5). Ibid. (193–4).
42
Wolff (1764), Ch. III, §§315–18 (161ff.).
12 the framework of responsibility

There is a wrong between those at peace when an injury is inflicted on persons,

or when property is seized or carried off, or when duties arising by law, or under
a convention or treaty, are not performed.43

On the other hand,

[t]here is a wrong between belligerents (1) when war is unjustly begun; (2) when
the right of military congress or embassy is violated; (3) when military conven-
tions and treaties are not observed; (4) when a victor exceeds moderation in
following up his victory.44

He went on to address certain practical questions. Section V of Part II

deals with ‘questions of wrong between those at peace’,45 considering
issues of imputability (‘whether injuries inflicted by subjects affect a
prince or people?’; ‘whether a wrong is to be imputed to a prince who
receives one who does wrong elsewhere?’; ‘whether successors are liable
for the wrong of a community?’),46 and of excuses (‘whether the prop-
erty of others may ever be taken against the will of the owners?’;
‘whether the promises in a treaty may ever be broken?’).47 Among the
latter, the issue of breach of treaty is the most relevant:
If one party to a treaty has broken it, the other may abandon it; because each
clause of a treaty has the force of a condition. Thus Thucydides says: ‘The blame
of destroying a treaty lies not with those who, on being deserted, resort to others,
but with those who do not afford the help which they have promised.’ Moreover,
necessity or superior forces will excuse one who is bound by a treaty, and he is
not to be regarded as a treaty-breaker.48

So at least some of the relevant modern conceptual categories (e.g.,

breach, imputation, excuse) are visible in Zouche’s work.

1.2.4 Pufendorf: a perfect system of natural law

Of greater historical significance is Samuel von Pufendorf (1623–94). His
Elementa, ‘the first useful text-book of natural law’,49 is a systemized
account of universal legal concepts which are exposed deductively (def-
inition, axioms, observations). International law is not separated from
the general exposition, but is entangled with other concepts, especially
natural law, which Pufendorf understood to be the basis of the law of

43 44 45
Zouche (1650), Pt I, §V (27). Ibid., §X (53). Ibid., Pt II, §V (106ff.).
46 47
Ibid. (106–7). Ibid. (110–11).
48
Ibid. (111), where he quotes Grotius (1625), Bk II, Ch. XV, §15; Gentili (1612), Bk III, Ch.
XXIV; Ayala, De Jure et Officiis Bellicis et Disciplina Militari Libri Tres (1792), Bk I, Ch. VI, §17.
49
Wehberg, in Pufendorf (1672), Vol. II (xiv).
 historical development 13

nations. This left no room for positive international law, the existence of
which Pufendorf did not accept.50
Pufendorf’s account of the law of obligations and of the rules
governing ‘bad actions’ and ‘demerit’ constitute one of the first concep-
tualizations of responsibility in international law. In Definition XII, while
discussing the definition of obligation (‘Obligation is an operative moral
quality by which some one is bound to furnish, allow, or endure some-
thing’),51 he considers the interplay between individuals and society:
(1) Certain obligations arise from convention or from some pact; certain others
from a transgression. (2) Among pacts some are terminated directly and ultim-
ately in the individual person, as it were, of the party to the pact; and certain
others tend indirectly or directly to the society and its affairs, and exercise their
ultimate efficacy therein. (3) In a transgression there is either guilt extending to
the person of the delinquent, or else obligation to make restitution for the injury
done, which comes upon the good of the delinquent.52

But not every pact binds both the individual and the community as a
whole.
Thus, for example, a marriage pact . . . will not bind other persons at all. From
this it follows that if a prince has promised marriage to some woman, no one in
the whole state beside himself will be bound to take her to wife.53

Indeed, in principle ‘guilt’ is only attached to the person, unless there is

some form of participation in the misdeed:
In transgression guilt does not pass to other persons included in the society,
unless they have themselves agreed to it by an efficacious consent, by rendering
aid, or by some other means . . . So a prince or a magistrate, if he has not
neglected to announce a moral prohibition, contracts no guilt from the fact that
a transgression has been committed by an old subject or a new-comer, or by one
who, after committing a crime in one state, flees to another . . . Nor, indeed, do
subjects contract guilt from the misdeed of princes, unless they themselves have
directly contributed to it.54

Nonetheless, the special relationship between ‘subjects and their rulers’

means that the former are responsible for some of the obligations arising
from treaties, depending on the purpose of the pacts considered:
(III) Obligations arising from a pact made by the prince or the directors of a
society as such, or obligations arising from a transgression of the same, bind the
whole society and the individual members, each for his proper share, to the

50 51 52
Ibid. Pufendorf (1672), Bk I, Def. XII (71). Ibid., Bk I, Def. XII, §28 (103–4).
53 54
Ibid. (104). Ibid. (104–5).
14 the framework of responsibility

extent of making restitution for the damage done. The basis for this assertion is
to be sought in the pact between subjects and their rulers. For those who commit
to some person authority and the care of the public safety, as well as full power to
make disposition of the same, by that very act obligate themselves to contribute,
each his own share, to what he has enjoined upon them as necessary or advanta-
geous for the public safety . . . From this it is clear that subjects are bound to pay
any and all debts contracted by princes for the public good. But as far as concerns
the private indebtedness of the same . . . on the basis of the law of nature it seems
that subjects are not directly and immediately bound to pay such indebtedness,
and that creditors have the right to bring an action only against the private
property of princes.55

Pufendorf also addressed the debts of the state owed to non-citizens56

and the binding force of treaties signed by the previous sovereign.57
Applying the natural law of obligations, he said that debts owed to
non-citizens are an undifferentiated collective responsibility; he rejected
automatic succession of treaties except for obligations ‘inherent’ in the
property of the prince.
In Definition XXI (‘Demerit is an estimative moral quality resulting to
a man from a bad action through which he is under obligation to make
amends for the injury done to a second person thereby’)58 Pufendorf goes
on to consider obligations arising not from a pact, but from an injury. He
identifies the general principle that
every man whatsoever is bound to make amends to the other party for damage
done him in any way at all by his own fault, and, if that damage has proceeded
from malice, he is bound to give bond not to offend in the future.59

In the first Axiom of Book II, Pufendorf analyses the concept of imput-
ability of actions to persons, a concept which also applies to common-
wealths of citizens under a prince:
9. Now it is to be observed that the deeds of some can be imputed to others, then,
and then only, if there exists a certain mutual community among them in regard
of the same. [This happens because they carried out a certain deed either jointly
or concurrently], or else if they constitute one body, so united to one another by a
pact, that whatever the whole body as such wishes, each and all also of the same
body are understood to wish, because, in the case of those things which concern
the whole body, they have each made their own will to depend entirely upon the
will of the body, or of those who rule it. For, as is shown elsewhere at greater
length, those who unite to form a society having the likeness of a single moral

55 56 57
Ibid. (105). Ibid., §29 (106–8). Ibid., §31 (110–12).
58 59
Ibid., Bk I, Def. XXI (199). Ibid., §1 (199).
 historical development 15

person, each and all obligate themselves to be willing to hold valid whatever that
person or council upon which authority to transact the public business of the society
has been conferred, has done regarding the affairs of the society, and so, to recognize
its acts as their own. And these are no more mere legal fictions than that all men
united in a society can be obligated by orders of a single person . . . Thus, when a
prince or a commonwealth makes war upon a second prince or commonwealth, the
separate individuals living under the commonwealth are all regarded as enemies.60

De Jure Naturae et Gentium Libri Octo (3rd edition, 1688), monumental

though it is, does not add much to what Pufendorf said in the Elementa
from the point of view of an international law of obligations. True, the
intellectual framework is clearer: the few arguably positive rules of the
law of nations, on ambassadors, the courtesies of war, and so on, are not
‘of such importance that they should form a special field of law, since
they can very easily find place in the system of natural law’.61 Further-
more, treaties should be considered more like civil law contracts
between individuals than public law:
It seems to us quite incongruous for some to refer to the law of nations special
agreements of two or more peoples, usually defined by leagues and agreements of
peace. For although the natural law about the keeping of faith orders that such
agreements be maintained, they still do not properly fall under the term of laws.62

That treaties do not constitute law, that there is no positive inter-

national law distinct from natural law, does not mean that sovereigns
or states live in anarchy. On the contrary, in Pufendorf’s view, natural
law pervades all aspects of the life and of the law of peoples.

1.2.5 Van Bynkershoek: the honour of the sovereign and pacta

sunt servanda
In his Questionum juris publici, Cornelius van Bynkershoek (1673–1743)
dealt with the observance of treaties in a separate chapter of Book II.63
He opened categorically by saying that ‘[c]ivil law guards the contracts of
individuals, considerations of honour, those of princes’.64 Such honour,
or good faith, is norm-creating:
If you destroy good faith, you destroy all treaties; you even destroy international
law, which has its origin in tacitly accepted and presupposed agreements
founded upon reason and usage.65

60
Ibid., Bk II, Axiom I, §9 (215–16).
61
Pufendorf, De Jure Naturae et Gentium Libri Octo (3rd edn, 1688), Bk II, Ch. III, §23 (trans.
Oldfather 1934, 229).
62 63 64 65
Ibid. Van Bynkershoek (1737), Bk II, Ch. X (190–5). Ibid. (190). Ibid.
16 the framework of responsibility

Accordingly, pacta sunt servanda is a rule recognized ‘even by those who

have learned nothing but treachery’.66
However, there are cases in which a breach of a treaty may be permit-
ted. For Bynkershoek this is a ‘very difficult question’:
Seneca makes the general statement about the human race: ‘Hardly anywhere is
good faith found when its observance is inexpedient.’ The master of iniquity in
his Principe teaches that treachery is lawful for princes, saying that any and every
method of securing the safety of the state is honourable provided only it makes a
pretence at being honourable.67

While Machiavelli’s doctrine is disavowed by most, the common adher-

ence to an implicit rebus sic stantibus doctrine is no less treacherous:
By [this] argument no promise binds unless the results are advantageous, and if
war is profitable you will reject the peace you have made. In this way a man who
buys goods will repudiate the purchase if the price of them should go down, since
he would change his mind with the change of price. Thus the result would be
that a pledge which is binding according to all law would have no value whatso-
ever either in public or private affairs.68

On the other hand the norm-creating factor of good faith does not
produce legal rules, but moral ones:
Between the several independent nations there is no legal compulsion since the
laws do not apply to international affairs, and the sole source of compulsion lies
in the law. But the dictates of good faith and expediency require that inter-
national agreements should be observed, and to these must be attributed as
much force as to the strongest pledge. In fact no pledge has more force than
one that rests wholly upon greatness of soul.69

Good faith has an almost existential force:

Even expediency obliges the several princes to keep their word, even though
there are no laws between them, for you cannot conceive of empires without
sovereigns, nor of sovereigns without compacts, nor of compacts without good
faith. One must promise because one approves of the terms, and one must
observe the terms because one has promised.

Against this background, Bynkershoek goes on to consider some reasons

for possible non-performance of treaty obligations, including impossi-
bility (‘a prince is not bound beyond his capacity to perform the act
promised’).70 But loss of honour and war are the only sanctions for those

66 67 68 69 70
Ibid. Ibid. Ibid. (191). Ibid. Ibid. (193).
 historical development 17

who do not comply, and princes are very often in breach of their
obligations:
Such is the degradation of the human race, that ‘there is hardly one who scruples
to break his word and violate his pledge provided he finds it expedient to do
so’ . . . ‘It is a crime for a man in private station to violate his bond, while in
princes and rulers it is a requirement of prudence to break treaties.’ Horresco
referens, but I could give a thousand instances in proof that this is wholly true. . . .
I recall a case in point: in 1595 the States-General admonished Elisabeth, the
Queen of England, that she should observe the terms of the treaty made in 1585 if
she wished to consider her own good name. The woman made the most absurd
answer, saying that ‘the contracts of princes rested only upon a pledge, and they
were not binding if they resulted in detriment to the state,’ and other things of
the same kind.71

In the face of such practice Bynkershoek was resigned:

I shall only add, that, in general, nations are usually so constituted that while you
cannot charge them with flagrant treachery, you will not readily find in them
striking examples of magnanimity.72

1.2.6 Wolff and Vattel: elements of a law on responsibility

In his Ius Gentium Christian Wolff (1679–1754) addressed the whole of
international law of his time. While he set out no separate account of
responsibility distinct from specific substantive obligations, he neverthe-
less touched on some aspects of responsibility. For example, when deal-
ing with ‘Ownership by Nations’,73 Wolff dealt with the attribution of
the conduct of private citizens to the state:
Since, if a citizen of one nation injures the citizen of another nation of his own
intent or does him harm in any way, that cannot be imputed to the nation; the
one nation cannot be said to have injured the other nation or done it wrong. The
acts of a private citizen are not the acts of the nation to which he is subject, since
they are not done as by a subject or so far as he is a subject. Therefore they have
no relation to the state of which the doer of the deed is a member. The situation
is different if he acts by order of the ruler of the state, whom he obeys as a
superior.74

It is also different if the sovereign ratifies or approves of the misdeed:

this becomes an injury not only to the citizen of the other state, but to
the other state itself.75

71 72 73
Ibid. (194). Ibid. (195). Wolff (1764), Ch. III (140ff.).
74 75
Ibid., Ch. III, §315 (161). Ibid., Ch. III, §316 (161).
18 the framework of responsibility

Wolff considered the duty of reparation a general duty:

Since the ruler of a state ought not to allow any of his subjects to cause a loss or
do a wrong to a citizen or subject of another state, and since he who has caused a
loss is bound to repair it and he who has injured another is rightly punished and
those who do things which are not to be allowed in a state must be restrained by
penalties, if any one of his subjects causes a loss to the subject of a foreign state or
does him a wrong, the ruler of the state in the former case ought to compel him
to repair the loss caused, and in the latter case ought not to punish him.76

But with regard to treaties, Wolff draws the conclusion that

[s]ince a perfect right is acquired from treaties, he who violates a treaty violates a
perfect right of the other party. Therefore, since the violation of a perfect right is
a wrong, he who violates a treaty does a wrong to the other party. This is to be
noted, that it may be understood what right belongs to a party to a treaty against
the violator of a treaty. It is plain without my saying it, that a treaty is violated if
anything is done which is contrary to it, or if anything is not done which is to be
done by virtue of it.77

This approaches the modern concept of the secondary obligation arising

from breach: from a violation, a ‘right belongs to a party . . . against the
violator’. The violator thus acquires a new obligation – that is, to make
reparation to the party violated.
Emerich de Vattel (1714–67), drawing on Wolff, articulated certain
aspects of an international law of responsibility – though still in a
disconnected way. First, he asserted a general obligation not to injure
other states:
If every man is, by his very nature, obliged to assist in promoting the perfection
of others, much more cogent are the reasons which forbid him to increase their
imperfection and that of their condition. The same duties are incumbent on
nations . . . No nation ought therefore to commit any actions tending to impair
the perfection of other nations, and that of their condition, or to impede their
progress, – in other words, to injure them. And since the perfection of a nation
consists in her aptitude to attain the end of civil society, – and the perfection of
her condition, in not wanting any of the things necessary to that end . . . – no one
nation ought to hinder another from attaining the end of civil society, or to
render her incapable of attaining it. This general principle forbids nations
to practise any evil manoeuvres tending to create disturbance in another state,
to foment discord, to corrupt its citizens, to alienate its allies, to raise enemies
against it, to tarnish its glory, and to deprive it of its natural advantages.78

76 77
Ibid., Ch. III, §318 (162). Ibid., Ch. III, §378 (195).
78
Vattel, Le Droit des Gens (1758), Bk II, Ch. I, §18 (ed. Kapossy and Whatmore, trans.
Nugent, 2008, 271–2).
 historical development 19

Second, as Wolff put it, ‘[t]he breach of a treaty is . . . a violation of the

perfect right of the party with whom we have contracted; and this is an
act of injustice against him’.79 Furthermore, acts against a citizen may
also be deemed to be injuries to their state:
Whoever uses a citizen ill, indirectly offends the state, which is bound to protect
this citizen; and the sovereign of the latter should avenge his wrongs, punish the
aggressor, and, if possible, oblige him to make full reparation; since otherwise
the citizen would not attain the grand end of the civil association, which is
safety.80

But the question is one of imputability: while it cannot be said ‘in

general, that we have received an injury from a nation, because we have
received it from one of its members’,81 there are some cases in which
states are held responsible for the actions of their citizens. Here, Vattel
took a view which is broader than that under modern law: when another
state or one of its citizens is injured, not only states may be held respon-
sible for actions they approve of or ratify, but they also have a general
duty to punish the offender or relinquish him (aut dedere aut judicare):
The sovereign who refuses to cause reparation to be made for the damage done to
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.82

More generally, however, the obligation not to injure another state or its
citizens is not absolute. There are cases when a state should not be held
responsible for its misdeeds:
It must further be observed, that when we are making use of our right, when we
are doing what we owe to ourselves or to others, if, from this action of ours, any
prejudice results to the perfection of another, – any detriment to his exterior
condition, – we are not guilty of an injury: we are doing what is lawful, or even
what we ought to do. The damage which accrues to the other, is no part of our
intention: it is merely an accident, the imputability of which must be determined
by the particular circumstances. For instance, in case of a lawful defence, the
harm we do to our aggressor is not the object we aim at: – we act only with a view

79
Ibid., Bk II, Ch. XII, §164 (343); compare with Wolff (1764), Ch. III, §378 (195), quoted
above.
80 81
Vattel (1758), Bk II, Ch. VI, §71 (298). Ibid., §73 (299).
82
Ibid., §77 (300). See also, with respect to private property, Bk II, Ch. VII, §81 (302: ‘the
property of the individuals is in the aggregate, to be considered as the property of the
nation, with respect to other states’).
20 the framework of responsibility

to our own safety: we make use of our right; and the aggressor alone is charge-
able with the mischief which he brings on himself.83

Moreover, a state has both the ‘perfect right’ to prevent harm to itself
and to complete reparation in case harm occurred:
It is safest to prevent evil, when it can be prevented. A nation has a right to resist
an injurious attempt, and to make use of force and every honourable expedient
against whosoever is actually engaged in opposition to her, and even to anticipate
his machinations, observing, however, not to attack him upon vague and uncer-
tain suspicions, lest she should incur the imputation of becoming herself an
unjust aggressor.
When the evil is done, the same right to security authorises the offended party
to endeavour to obtain a complete reparation, and to employ force for that
purpose, if necessary.84

Vattel discussed a range of lawful and useful means of enforcing the

right to reparation which should be considered before going to war, in
particular retaliation, retorsion and reprisals.85

1.3 Nineteenth- and early-twentieth-century developments

1.3.1 Nineteenth-century writers: from Wheaton to Heffter
Many of these elements are subsumed in later international law texts,
though with variations and refinements. But, like Vattel’s, the major
treatises of the first half of the nineteenth century did not contain any
separate treatment of responsibility. Henry Wheaton’s Elements of Inter-
national Law (1836), the best of these in English, did examine certain
problems in a manner consistent with modern understandings of
responsibility, but it did so in connection with specific areas of law – in
particular the law of prize. Wheaton had professional experience of that
subject. As US representative in Copenhagen, he had negotiated the
Treaty of Indemnity by which Denmark made reparation for the capture
and condemnation of certain American vessels at Kiel during the Napo-
leonic Wars.86 In the first edition of Elements Wheaton discussed the case

83
Ibid., Bk II, Ch. I, §18 (272).
84
Ibid., Bk II, Ch. IV, §§50–51 (288–9). See also Bk II, Ch. V, §66 (297: ‘This right is a perfect
one, – that is to say, it is accompanied with the right of using force in order to assert it’).
85
Ibid., Bk II, Ch. XVIII, §§338–54 (458–67).
86
Claims Convention (United States–Denmark), 28 March 1830, 80 CTS 463. This became a
model for other US indemnity treaties: see Dana, in Wheaton (8th edn, 1866), v, viii.
 historical development 21

in some detail. American vessels had been convoyed with British vessels
in the Baltic, a practice a Danish edict of 1810 declared to be a justifica-
tion for capture. Wheaton emphasized that the lawfulness of conduct in
the light of internal law, such as the Danish edict, did not cure it of
unlawfulness under international law.87
The distinction between breach of a substantive rule and responsibility
for its breach can also be seen in Wheaton’s consideration of an earlier
prize case. The case had arisen in the High Court of Admiralty in 1675,
after a French privateer had come into English territorial waters in
possession of a Hamburg merchant vessel. As a neutral state, England
was obliged to make restitution of vessels coming within its jurisdiction
after having been seized by a belligerent. The parties contested whether
the privateer and its prize really had been in English waters – that is,
whether there had been a violation of the substantive rule. Sir Leoline
Jenkins found that the vessels had been ‘in his Majesty’s chambers’ and
that restitution was required. Wheaton recognized the distinction
between the primary rule and the principle of reparation:
Whatever doubts there may be as to the extent of the territorial jurisdiction thus
asserted as entitled to the neutral immunity, there can be none as to the sense
entertained by this eminent civilian as to the right and the duty of the neutral
sovereign to make restitution where his territory is violated.88

It was not until the 1850s that a writer would begin to use recogniz-
ably modern language of responsibility in a systematic way. It has been
said that while August Wilhelm Heffter ‘collected and organized’ rele-
vant material, he did not ‘contribut[e] much to the analysis of the
subject’ as a distinct field.89 Certainly Heffter did not present a compre-
hensive system of state responsibility. But his Le Droit International Public
de L’Europe (1857) is notable for its section on ‘Faits illicites’, which not
only used terminology which was to become familiar in the context of
state responsibility but also foreshadowed some central debates. For
example, he asked whether certain acts could incur criminal responsi-
bility of the state under international law; his answer was negative, but
he recognized the importance of the problem. He went on to assert that

87
Wheaton, 2 Elements of International Law: with a sketch of the history of the science (1836), §29,
260–78.
88
Ibid., §§9, 141–3; the paragraph concerns the restitution by the neutral state of property
captured within its jurisdiction or otherwise in violation of its neutrality.
89
Eagleton (1928), 19.
22 the framework of responsibility

[le droit international] regarde comme fait illicites ou comme lésions les atteintes
portées sans motifs légitimes aux droits fondamentaux des personnes par lui
sauvegardées, notamment à leur liberté, à leur honneur et à leur propriété. Toute
lésion semblable oblige l’auteur à la réparer: car les lois de la justice prescrivent
que l’équilibre social soit rétabli chaque fois qu’il a été dérangé par une iniquité
quelconque.90

Heffter also discussed obligations owed to ‘the international commu-

nity as a whole’. He included among these a putative obligation not to
attempt world domination (‘une tentative sérieuse d’établir un empire
universel sur les ruines des États particuliers’), but also the inviolability
of diplomats and obligations to suppress piracy and the slave trade.91
The rights of foreigners were extensively treated in Le Droit International
Public de L’Europe, but they did not, so to speak, constitute the field of
responsibility.

1.3.2 The early twentieth century: Triepel and Anzilotti

From a doctrinal point of view, the treatment of state responsibility as a
discrete topic is usually credited to Heinrich Triepel and Dionisio Anzi-
lotti. In Triepel’s case, the responsibility of a federal state for the acts of
its subordinate territorial units was an influential consideration.92 The
position of the federal state under international law was the subject of
his major work, Völkerrecht und Landesrecht (1899);93 Triepel also wrote
about German federalism in detail elsewhere.94 Völkerrecht und Landes-
recht presented elements of the modern organization of the topic of
responsibility, addressing imputation to the state of the conduct of
various entities, including individuals,95 state organs,96 self-
administering public bodies (i.e. public law organizations not part of
the state apparatus)97 and the component units of a federal state.98
Triepel’s focus on imputation was a marked advance. For a federal state,
questions of imputation of the acts of the constituent units to the state

90
Heffter (1857), §101 (‘Faits illicites’), 203–4.
91
Ibid., §104 (‘Violations du droit international réprimées partout’), 207–8.
92
See e.g. Borchard, The Diplomatic Protection of Citizens Abroad (1916), 177 n. 1; Eagleton
(1928), 20; Strupp, 1 Éléments du Droit International Public (2nd edn, 1930), 25; Ago, (1939)
68 Hague Recueil 419.
93
Triepel, Völkerrecht und Landesrecht (1899), 359ff., 366ff. Triepel’s examination of the
application of international law in federal states, including the United States, was
identified by his contemporaries as a distinctive contribution: e.g. Bilfinger, (1950) 13
ZaöRV 1, 6.
94
Triepel, Unitarismus und föderalismus im Deutschen Reiche (1907).
95 96 97 98
Triepel (1899), 324–48. Ibid., 348–55. Ibid., 355–9. Ibid., 359–71.
 historical development 23

invite formulations of principle, independent of the character of the

conduct in question: these units are general governments with fiscal
and police powers. A constituent unit may engage in conduct with
implications at the international level; to hold that the central govern-
ment was not responsible for its conduct would have produced a marked
inequality between federal and unitary states. Elsewhere Triepel was
concerned with the distinction between national law and international
law. For example, he stressed that certain rules, although significant
for the position of the state as an international legal person (völkerrecht
bedeutsam), are not themselves rules of international law.99 He was
interested in the distinction between national and international rules,
but also with the implications one might have for the other.
Thus federalism encouraged thinking about responsibility in a more
systematic way.
Anzilotti, writing in the same period, also saw responsibility as a
distinct field. Responsibility for injuries to foreigners was Anzilotti’s
main concern, but within those limits he identified the principal elem-
ents of a modern law of state responsibility. Like Triepel, Anzilotti
stressed the importance of the rules of attribution:
La notion de la responsabilité internationale implique l’idée d’un rapport unis-
sant à un État la violation du droit international. En d’autres termes, il faut qu’un
acte illicite puisse être rapporté à un État, qu’on puisse le considérer comme
son acte à lui, le lui imputer.100

The existence of an unlawful act Anzilotti treated as prior to attribution.

But both elements were required. The prevailing idea that attribution of
an act to the state is in all or most cases self-evident, plain from the facts,
Anzilotti recognized as erroneous. Instead, he presented attribution as a
process of law with its own rules:
C’est une caractéristique de l’imputation juridique que d’être un pur effet de la
règle; une volonté, un acte, sont imputables à un sujet donné seulement parce
que la règle l’établit ainsi. L’imputation juridique se distingue nettement par là
du rapport de causalité; un fait est juridiquement propre à un sujet, non parce
qu’il a été produit ou voulu par ce dernier, dans le sens que ces mots auraient en
physiologie ou en psychologie, mais parce que la règle le lui attribue.101

99
An example was the law of imperial succession in the Austro-Hungarian Empire – a rule
with international implications but in itself strictly municipal: Triepel (1899), 273.
100
Anzilotti, (1906) 13 RGDIP 285, 285–6 (emphasis in original).
101
Anzilotti, Corso di diritto internazionale: Vol. I: Introduzione e teorie generali (3rd edn, 1928),
228, as quoted by Ago (1939), 450 n. 1.
24 the framework of responsibility

Anzilotti also addressed rules of exception – especially concerning state

of necessity – under which otherwise wrongful acts attributed to a state
might not attract responsibility;102 and he outlined the consequences of
responsibility, in particular, the obligation to make reparation.103

1.3.3 Borchard and Eagleton and the legacy of the Great War
Thus Anzilotti and Triepel had come to see state responsibility as a
distinct topic, not just an incident of specific substantive areas of law.
But it was during the period from 1914 to 1930 that Anzilotti’s and
Triepel’s appreciation was generalized and more intensive research was
directed towards state responsibility. Two of the most significant system-
atizers were Americans – Edwin Borchard and Clyde Eagleton.
Borchard’s 1916 work, The Diplomatic Protection of Citizens Abroad, was the
outgrowth of his 1914 Ph.D. thesis of the same title. It included five
chapters on state responsibility. The organization seems to have owed
something to Triepel, although the impetus was Borchard’s concern with
diplomatic protection, as compared with Triepel, who sought to relate the
internal law of a federal system to the international obligations of the state.
Borchard began by addressing state responsibility in general outline,104
and then examined the topic with reference to each of four categories of
conduct that might give rise to responsibility: acts of individuals,105 acts in
wartime,106 breaches of contract107 and denial of justice.108 He was alert to
the problem of a one-sided portrayal of responsibility: a law of state respon-
sibility deriving its main incidents from investment protection could all too
easily be presented as a law for the investor without regard for other
interests. Borchard denied that the state is ‘a guarantor of the safety of
aliens. It is simply bound to provide administrative and judicial machinery
which would normally protect the alien in his rights.’109
Eagleton added to the development of the topic with his treatise, The
Responsibility of States in International Law (1928), the first monographic
study under that rubric in English. He characterized the topic at the
same time as central to international law and as only newly formed:
States, like individuals, have ever been concerned with their rights rather than
their duties. It is nevertheless surprising that so little attention has been given to

102
Anzilotti (1906), 303–7.
103
Ibid., 308–9. Anzilotti’s first book on the subject was his Teoria generale della
responsabilità dello stato nel diritto internazionale (1902). See also Marinoni, La responsabilità
degli stati per gli atti dei loro rappresentanti secondo il diritto internazionale (1913).
104 105 106
Borchard (1916), 177–212. Ibid., 213–45. Ibid., 246–80.
107 108 109
Ibid., 281–329. Ibid., 330–43. Ibid., 179.
 historical development 25

the subject of the responsibility of states in international law. Only in this

century have efforts been made to give it a detached treatment.110

Eagleton was clear that state responsibility was not to be explained by

straightforward analogy to municipal law concepts of the liability of
individuals. Rather, it was a distinct topic of international law, centrally
concerned with attribution:
The duties, as well as the rights, attendant upon territorial jurisdiction, are stated
by international law. As a matter of practical operation, then, the responsibility
of the state is to be ascertained from the duties of control within its territorial
limits and over its agents laid down for it by positive international law. But while
the responsibility of a state is . . . based upon the control which it exercises within
its borders, it does not follow that the state may be held responsible for any
injury occurring therein. The law of nations does not make the state a guarantor
of life and property. It is answerable, under international law, only for those
injuries which can be fastened upon the state itself.111

The structure of his treatise reflects this focus. Chapter II defines differ-
ent classes of responsible persons; Chapter III addresses attribution to the
state through its agents; Chapter IV, the acts of individuals; Chapter VI,
mobs and insurgents. Chapter V discusses the local remedies rule, relating
this in particular to diplomatic protection. Chapter VIII deals with repar-
ation. Only Chapter VII, on contractual claims, including denial of justice,
strays into what would later be termed the ‘primary’ or substantive rules
of responsibility. Despite the absence of distinct discussion of invocation,
countermeasures or circumstances precluding wrongfulness, Eagleton’s
work involves a recognizable plan of the topic. In doing so it drew on the
jurisprudence of the late nineteenth and early twentieth century claims
tribunals, whose decisions both created a practical need for a developed
law of state responsibility and furnished materials for its distillation.
At a deeper level the law of responsibility was a reaction against theories
of auto-limitation and the emphasis on unfettered notions of state sover-
eignty. The treatise writers of the 1920s saw state responsibility as against
a notion of sovereign supremacy which was the effective negation of
external responsibility – the nation state ultimately responsible only to
itself. Rather, the emphasis was on state equality as involving subjection
to law and respect for the rights of other states. According to Eagleton,
This exclusive territorial control, which is a legal possession of the state, logically
results in the acceptance by that state of responsibility for illegal acts occurring

110 111
Eagleton (1928), vii. Ibid., 8.
26 the framework of responsibility

within the range of its control. If one nation allows to another a monopoly of
jurisdiction within the boundaries of the latter, and thereby excludes itself from
the possibility of protecting its own rights therein, this can only be upon the
assumption that the latter state makes itself responsible for all internationally
illegal acts committed within its control against the former state . . . The exclu-
sive territorial jurisdiction of the state, which is a concomitant of its independ-
ence, is the chief source of its responsibility.112

The matter was here presented as an implicit bargain: the state’s ‘exclu-
sive territorial control’ entailed that the state give something back –
namely, responsibility ‘for all internationally illegal acts committed
within its control’. In his 1939 Hague lectures, Roberto Ago saw the
whole field of state responsibility as a system of imputation, derived
from the claim of the state to hold a special if not exclusive position as
legal actor at the international level: ‘un fait illicite peut être imputé
même à un subjet-personne juridique’.113
But if state responsibility was the result of a bargain between states, it
was an unspoken bargain, a jural construction: there is little evidence
of undertakings between states seen as giving rise to any general relation
of responsibility. Moreover the question remains why writers came to
consider state responsibility as a discrete topic when they did. Eagleton
had spent the last years of the First World War in Britain; he saw first
hand the impact of the war on one of the societies severely affected by it.
Continental writers felt its impact even more strongly. The logic of
responsibility as described by Eagleton, Ago and their contemporaries
was not just an internal one – states trading exclusive jurisdiction for a
tacit promise to accept responsibility for breaches. It may be seen as a
response to the ruinous world of the Great War, and a recall of the
practice of responsibility as applied in the last decades of the nineteenth
century, from the Alabama arbitration114 to the Venezuela claims115 and
the two Hague peace conferences.116

112
Ibid., 7, citing to similar effect Hall, International Law (1880), §11; Hyde, 1 International
Law Chiefly as Interpreted and Applied by the United States (1922), §266.
113
Ago (1939), 462.
114
Alabama Arbitration (Great Britain v. US) (1872), in Moore, 1 Int. Arb. 495.
115
See e.g. Preferential Treatment of Claims of Blockading Powers against Venezuela (Germany,
Great Britain and Italy v. Venezuela) (1904) 9 RIAA 99. More generally, on the history of the
European powers’ blockade and bombardment of Venezuelan ports and subsequent
claims, see McBeth, Gunboats, Corruption, and Claims: Foreign Intervention in Venezuela,
1899–1908 (2001).
116
International Peace Conference, The Hague, 18 May–29 July 1899 and Second
International Peace Conference, The Hague, 15 June–18 October 1907. For the
 historical development 27

Although already immanent in the discipline, the term ‘responsibility’

was given wider circulation by the post-war settlement.117 The Treaty of
Versailles of 28 June 1919 fixed on Germany ‘responsibility . . . for caus-
ing all the loss and damage to which the Allied and Associated Govern-
ments and their nationals have been subjected as a consequence of the
war’.118 Article 231 was a political act of the victors; its legal status was
questioned, and not only by German revisionists. No one could doubt the
vast ‘loss and damage’ arising from the war, but it was a further step to
say that the injuries and costs flowed from Germany’s breaches of
international obligations, still less that they all did. War had been a
feature of European politics for centuries, and large financial exactions
by the victor after a successful war were not unprecedented: thus Ger-
many had exacted 5 billion gold francs from France in 1871.119 The First
Hague Peace Conference proposed a regime to prevent spoliation by
occupying armies but contained no bar on indemnities after war.120
There were calls from various quarters for a moratorium on war indem-
nity at the end of the First World War,121 but Article 231 was a war
indemnity disguised in legal language, one which caused endless trouble
in the 1920s until it was effectively abandoned in 1932.122 At the same
time it placed issues of responsibility for the major events of

proceedings and the texts of the Conventions adopted, see Scott (ed.), The Proceedings of
the Hague Peace Conferences (1920–1).
117
In 1919 the word ‘responsibility’ was not, of course, new. As a legal term it can be traced
to the late eighteenth century. The first use of the word ‘responsibility’ in French dates
from around 1783 – attributed to the French Finance Minister Necker. Hamilton and
Madison used it later in the same decade in the Federalist Papers, referring for example
to the ‘due responsibility in the government to the people’ and its relation to the
frequency of elections: see Henriot, (1977) 22 APD 59, 60–1. The term derived from the
verb répondre, to answer to, and it only acquired a distinct legal connotation – the
requirement to answer for a breach of an obligation – in the nineteenth century. The
Treaty of Versailles, 28 June 1919, 225 CTS 189 nevertheless was a conspicuous use of
the word in a context of general political interest.
118
Art. 231 read as follows: ‘The Allied and Associated Governments affirm and Germany
accepts the responsibility of Germany and her allies for causing all the loss and damage
to which the Allied and Associated Governments and their nationals have been
subjected as a consequence of the war imposed upon them by the aggression of
Germany and her allies.’
119
Ibid., Art. 2. This was confirmed, and the schedule for payment elaborated, in Art. 7 of
the Treaty of Frankfurt, 10 May 1871, 143 CTS 164.
120
Second Hague Convention, 29 July 1899, 187 CTS 429, Arts. 49–51.
121
E.g. the Social Democratic Party in Germany, which adopted the phrase ‘no
annexations, no indemnities’: Paxson, Corwin and Harding (eds.), War Cyclopedia (1918),
196.
122
See Kent, The Spoils of War (1989), for a detailed account of the diplomatic history.
28 the framework of responsibility

international war and peace irrevocably within the domain of the ‘legal’;
and virtually no textbook after 1919 lacked a separate chapter on the
subject. It was against this background of doctrine and practice that the
1930 League of Nations Conference for the Codification of International
Law began the task of official codification, a process which would take
the rest of the century.

1.3.4 The Hague Codification Conference of 1930123

In 1920, the Advisory Committee of Jurists in charge of drafting the
Statute of the Permanent Court of International Justice recommended
that the work of the Hague conferences of 1899 and 1907 be continued
with a view to codifying and otherwise developing the law of nations.124
This recommendation was acted upon by the League in 1924, with the
Assembly suggesting that the Council convene a committee of experts to
identify those areas of international law with respect to which inter-
national agreement was ‘most desirable and realizable’ and, after receiv-
ing the comments of states, to report back to the Council on those areas
‘sufficiently ripe’ for development.125 The Council responded by estab-
lishing the committee, composed of seventeen jurists drawn from a
variety of legal traditions.126
The committee of experts met in three sessions, in April 1925, January
1926 and April 1927. At its first session, eleven fields of international law
were identified for further inquiry by a dedicated subcommittee.127 One
of these was the topic of state responsibility, allocated to a subcommittee
of Guerrero (Rapporteur), de Visscher and Wang Chung Hui.128 The
following questions were asked of the subcommittee:
(1) Whether, and in what cases, a State may be liable for injury caused on
its territory to the person or property of foreigners;
(2) Whether, and, if so, in what terms it would be possible to contemplate
the conclusion of an international convention providing for the ascer-
tainment of the facts which may involve liability on the part of a State

123
See Rosenne (ed.), 1 League of Nations: Committee of Experts for the Progressive Codification of
International Law (1972), ci–cii.
124
Resolution of 24 July 1920, reproduced in (1947) 41 AJIL Supp. 102.
125
Resolution of 22 September 1924, reproduced in (1947) 41 AJIL Supp. 103.
126
Resolution of 12 December 1924, reproduced in (1947) 41 AJIL Supp. 104. The chairman
of the committee was Hjalmar Hammarskjöld, a former prime minister of Sweden
(1914–1917) and a member of the Permanent Court of Arbitration in The Hague. His
son, Dag Hammarskjöld, served as the second UN Secretary-General (1953–1961).
127
LN Doc. C.275.1925.V, reproduced in (1926) 20 AJIL Spec. Supp. 13.
128
Ibid., 15.
 historical development 29

and forbidding in such cases recourse to measures of coercion before

the means of pacific settlement have been exhausted.129

At the second session130 the committee considered the reports of the

various subcommittees, including that on state responsibility.131 The
report, prepared by Guerrero and Wang Chung Hui,132 addressed at
length both the questions identified above. With respect to the first,133
it was said:
As regards the protection of foreigners, customary law lays down certain rules
which clearly express the definite will of States regarding the rights which they
agree to accord to foreigners, the manner in which foreigners are to be treated,
the method of determining the State which is responsible for their protection,
and the means of ensuring such protection.134

Although focusing on the international minimum standard of treat-

ment for aliens, this first part of the subcommittee’s report dealt with a
number of general issues including attribution. The subcommittee noted
that the internal separation of powers made little difference in identify-
ing the state as the perpetrator of an international act,135 a principle
applicable also to federal subdivisions,136 and affirmed that while the

129
Ibid., 14.
130
LN Doc. C.44.M.21.1926.V, reproduced in (1926) 20 AJIL Spec. Supp. 17.
131
Ibid., 176–203.
132
De Visscher was prevented from taking part for reasons undisclosed: ibid., 176 n. 2. The
text annexed to the committee’s report contained amendments made by Guerrero as
Rapporteur following discussions with the committee as a whole: ibid., 176 n. 3.
133
In the second part of its analysis, the subcommittee considered the possible models for
the resolution of disputes arising out of state responsibility. It endorsed the
‘international commission of enquiry’ as the preferred model (ibid., 198–200),
influenced by the role of such a commission in defusing the Dogger Bank affair in 1904,
in which a Russian fleet on its way to the Far East (and to defeat at the hands of the
Japanese Navy at the Battle of Tsushima in 1905) mistakenly shelled a British fishing
fleet: see Dogger Bank (Great Britain v. Russia) (1905), reproduced in (1908) 2 AJIL 931.
134
Ibid., 181.
135
LN Doc. C.44.M.21.1926.V, reproduced in (1926) 20 AJIL Spec. Supp. 17, 184:
When we speak of an international act committed by the State, we mean an act
done by organs through which the State performs its functions and which enable
it to fulfil its international duties . . . Every one of these organs, whether it be
legislative, administrative [i.e. executive] or judicial can commit an illegal act,
contrary to the rights of another State, imputable to the State to which the organs
belong, and consequently involving that State’s responsibility . . .
On the subject of specifically judicial acts (and denial of justice) see ibid., 190–3.
136
Ibid., 184–5:
In composite States, the infraction of an international rule by one of the
component States of the federation involves the responsibility of the central
power, which represents the State in its international relations. The central power
30 the framework of responsibility

actions of private individuals (e.g. in the course of a riot or insurrection)

could not be directly attributed to the state,137 states remained obliged to
take reasonable steps to prevent injury to foreign persons and their
property.138 The subcommittee further considered the responsibility of
the state for the illegal acts of officials, arguing that liability in such a
case was dependent on whether or not the official was acting within the
scope of their authority139 – a position contrary to the modern rule.140
At the close of the second session, a number of governments com-
mented on the subcommittee’s report. Their views were considered by
the committee as a whole at its third session. With respect to state
responsibility, some twenty-five replied affirmatively and without reser-
vation to the report, including to the question whether codification
should be attempted.141 Four – France, Japan, the Netherlands and
Venezuela – registered their opposition, with France arguing that the
subject ‘too closely affects the internal and external policy of States, their
social life and the stability of their institutions’ to be a candidate for
codification.142 It was ultimately decided by the committee of experts
that ‘generally speaking, [all] the above questions, within the limits
indicated by the respective questionnaires, are now, in the words of the
terms of reference “sufficiently ripe”’.143
In September 1927, the Assembly of the League voted to submit the
topics of nationality, territorial waters and state responsibility to the
‘first’ codification conference. It also asked the Council to prepare The
Hague to be the venue of the conference, and to secure the appointment
of a Preparatory Committee of five experts to prepare an advanced report
‘comprising sufficiently detailed bases of discussion on each ques-
tion’.144 The Preparatory Committee met in early 1928 to begin the
process, and in May 1929 completed bases of discussion on the three

may not advance the argument that the component State is autonomous; it
cannot, more than a centralised State, plead the independence and autonomy of
authorities of a member State in order to avoid responsibility . . .
137 138 139
See also ibid., 189–90, 193–7. Ibid., 185. Ibid., 187–8.
140
Three years later, the decision of the French–Mexican Claims Commission in Estate of
Jean-Baptiste Caire v. Mexico (France/Mexico), (1929) 5 RIAA 516, was handed down, later
described as a ‘precise, detailed and virtually definitive formulation of the principles
applicable’ on this point: Draft Articles Commentary, Art. 10, §14. Further: Chapter 4.
141
Including the British Empire, Spain and the United States: (1928) 22 AJIL Spec. Supp. 1,
15.
142 143
Ibid., 21. Ibid., 5.
144
Resolution of 27 September 1927, reproduced in (1928) 22 AJIL Spec. Supp. 231. The
Preparatory Committee ultimately comprised Jules Basdevant (France), Carlos Castro-
Ruiz (Chile), M. J. P. A. François (Netherlands), Sir Cecil Hurst (UK) and Massimo Pilotti
 historical development 31

issues145 which were in equal parts restatement and progressive devel-

opment of the law. The bases of discussion on responsibility included a
number of now familiar principles. It was unanimously accepted that a
state could not plead a provision of its municipal law to escape inter-
national responsibility.146 Legislative, judicial and executive acts were all
capable of giving rise to responsibility.147 State responsibility was held to
result from federal subdivisions, such as communes or provinces,148 but
not from the acts of private persons, save in circumstances where the
state in question was remiss in its duty to protect the property and
person of aliens.149 The Preparatory Committee also made early forays
into justifications and excuses for internationally wrongful acts – con-
sidering ‘immediate necessity of self defence’150 and ‘the exercise of
reprisals against the State to which the foreigner belongs’ (i.e. counter-
measures)151 – and remedies.152
Following the work of the Preparatory Committee, representatives of
forty-eight states met at the Conference proper and debated the bases of
discussion through three committees with a view to adopting codifying
conventions. State responsibility was allocated to the Third Committee,
which held sixteen meetings between 17 March and 11 April 1930.153 It
elected J. Basdevant (France) as Chairman, A. Diaz de Villar (Cuba) as
Vice-Chairman, and de Visscher (Belgium) as Rapporteur. A drafting
committee composed of Edwin Borchard (United States), G. de Vianna
Kelsch (Brazil) and Arrigo Cavaglieri (Italy) was also appointed.154 It
proved to be a comprehensive failure.155 Despite the encouraging signs
in the state responses to the work of the Preparatory Committee, no final
agreement could be reached on issues of state responsibility. While some
ten of the thirty-three original bases of discussion were adopted, the
committee foundered on the issue of whether foreigners were entitled
to preferential treatment over nationals of the receiving state. Moreover,
the period allocated for the Conference – which was expected to prepare

(Italy). On its establishment, see Rosenne (ed.), 1 League of Nations Conference for the
Codification of International Law (1930) (1975), xiii–xvi.
145
For the material on state responsibility, see LN Doc. C.75.M.69.1929, reproduced in 2
Rosenne (1975), 423.
146
Ibid., 439–41 (on which basis it was decided to omit the principle from any proposed
convention).
147 148 149
Ibid., 447–511. Ibid., 512–14, 543–6. Ibid., 515–25.
150 151 152
Ibid., 550–2. Ibid., 552–4. Ibid., 568–74.
153
LN Doc. 351(c).M.145(c).1930.V, reproduced in 4 Rosenne (1975), 1425–661.
154
1 Rosenne (1975), xxxiv.
155
Crawford and Grant, in Grant and Barker (2007) 77, 88.
32 the framework of responsibility

three conventions in a single month – was inadequate.156 The Final Act

of the committee indicates that it was simply unable to complete its
study of the question, or make any report to the Conference as a
whole.157

1.3.5 The Harvard Draft Research158

The Harvard Draft Research on state responsibility can only be under-
stood in relation to the efforts of the 1930 Hague Conference.159
Following the identification in 1927 of nationality, territorial waters
and state responsibility as the three topics to be considered, the Harvard
Law School took it upon itself to assist the Conference through the
preparation of draft conventions anticipating the Conference’s work.160
The Faculty appointed Manley O. Hudson as Director of Research, and
empanelled an Advisory Committee of fifteen experts to guide the pro-
ject, which was to be ‘undertaken along the general lines followed by the
Institut de Droit International and the American Law Institute, with a
director of research, with a reporter for each of the subjects to be
considered . . . and with advisers to assist each of the reporters’.161 With
respect to state responsibility, the Advisory Committee appointed Edwin
Borchard as reporter. Ten advisers were then appointed for each topic,
and between late 1928 and early 1929 three draft conventions were
produced with an accompanying commentary:162 these were specifically
stated to be ‘recommended’ by the Advisory Committee and ‘authorized’
by the Faculty of the Harvard Law School.163

1.3.5.1 The 1929 Draft

The 1929 Harvard Research Draft for the Responsibility of States
for Damage done in their Territory to the Persons or Property of
Foreigners164 was one of the first proposed codifications of the law

156 157
1 Rosenne (1975), xlii. 4 Rosenne (1975), 1600–1.
158
See Crawford and Grant, in Grant and Barker (2007).
159
Grant and Barker, in Grant and Barker (2007) 1, 7–11.
160
See the editorial comment by M. O. Hudson, ‘Editorial Comment: Research in
International Law’, (1928) 22 AJIL 151, 151.
161
Ibid., 152.
162
With respect to state responsibility, these were Phillip Marshall Brown, Charles
K. Burdick, William C. Dennis, Clyde Eagleton, Charles E. Hughes, Charles Cheney
Hyde, Ellery C. Stowell, George W. Wickersham and Quincy Wright: Hudson, (1929) 23
AJIL Spec. Supp. 1, 8.
163 164
Ibid., 9. (1929) 23 AJIL Spec. Supp. 131.
 historical development 33

of state responsibility. In Borchard’s introductory comment to the

Draft, it was stated that
This draft has been framed with a desire to depart as little as possible from the
existing rules of international law. In some cases it has been recognized that
existing practice, while to some extent uniform, has not been accepted as law by
all states. In such cases modifications of the prevailing rules have been proposed
in order to reconcile, if possible, differences between opposing points of view . . .
The underlying idea of the draft, therefore, is to combine a restatement of the
existing law with proposals for moderate changes which seem necessary to
secure the acceptance of the convention by all countries.165

The Draft was limited in terms of substance, making ‘[n]o attempt . . .

to deal with the responsibility of a state for injuries to other states’ that
arose out of an armed conflict.166 It was modest in scope, consisting of
some eighteen Articles with no organizational headings: ‘[i]t contained
enough to suggest an outline of the topic but not enough to indicate
precisely how a fuller codification might proceed’.167 Notably, it did not
extricate the ‘primary’ rules of investor protection from the now-
familiar ‘secondary’ questions of the attribution of acts of state – a
choice reflected in the work of the Preparatory Committee of the Hague
Conference and in the work of the Third Committee itself.
But now familiar features were again present. Draft Article 2 provided
that ‘[t]he responsibility of a state is determined by international law or
treaty, anything in its national law, in the decisions of its national courts,
or in its agreements with aliens, to the contrary notwithstanding’. Draft
Article 3 stated that ‘[a] state is not relieved of responsibility because an
injury to an alien is attributable to one of its political subdivisions.’ Draft
Article 11 provided that ‘[a] state is responsible if an injury to an alien
results from an act of an individual or from mob violence, if the state has
failed to exercise due diligence to prevent such injury’; Draft Article 12
made similar provision with respect to the acts of insurgents. Draft
Article 13(a) stated that ‘[i]n the event of an unsuccessful revolution, a
state is not responsible when an injury to an alien results from an act of
the revolutionists committed after their recognition as belligerents’,168
but that it would be responsible if the insurrection were successful.

165 166 167

Ibid., 140. Ibid. Ibid.
168
States remain free of formal responsibility for the actions of revolutionaries, though the
concept of recognition of belligerency is now thoroughly obsolete – a textbook
phenomenon sustained against an erratic practice by the notoriety of the American
Civil War: Walker, (1937) 23 GST 177; Crawford, in Lauterpacht, Recognition in
34 the framework of responsibility

1.3.5.2 The 1961 Draft

State responsibility was one of the fourteen original topics originally
selected by the International Law Commission (ILC) for ‘codification
and progressive development’.169 That selection was based on a survey
of the field undertaken by Hersch Lauterpacht:170 it identified the 1929
Harvard Research Draft and the 1930 Hague Codification Conference as
making a ‘notable’ contribution to the development of the law, although
the results were still self-evidently ‘inconclusive’.171 A further effort was
required.
In the course of preparing his second report, the first Special Rappor-
teur, F. V. García-Amador (Cuba), conferred with the directors of the
Harvard Draft Research Project, which by that stage had expanded well
beyond its original mandate of assisting the Hague Codification Confer-
ence, and become an influential codification project in its own right.172
By that stage, work had already started in Harvard on the preparation of
a revision of the 1929 Draft,173 which eventually became, in the words of
Ago, ‘an entirely new draft’.174 The project was under the general direc-
tion of Milton Katz, Louis B. Sohn and Richard Baxter, with Herbert
Briggs, Quincy Wright and Philip Jessup providing further advice.175
The new Draft was, again, intended to be a work of codification in the
classic sense,176 and sought to develop state responsibility through the
specific substantive medium of investor protection. As stated in the
introductory note,
It is the purpose of the law of State responsibility to extend the protection of
international law to those who travel or live abroad and to facilitate social and
economic ties between States. No State, regardless of its political or economic
philosophy, can remain indifferent to the mistreatment of its nationals abroad.

International Law (1947, repr. 2013), xxi, xxix. Also Moir, The Law of Internal Armed Conflict
(2002), 11ff.
169
ILC Ybk 1949/I, 281.
170
A/CN.4/1/Rev.1, 10 February 1949, reproduced in Lauterpacht, 1 International Law, Being
the Collected Papers of Hersch Lauterpacht (ed. Lauterpacht, 1970–2004) 445.
171 172
Ibid., 512–13. Grant and Barker (2007), 10–16.
173
As a result of a 1954 suggestion by Yuel-li Liang, Secretary to the ILC and Director of the
Codification Division: Crawford and Grant, in Grant and Barker (2007), 90–1.
174
ILC Ybk 1961/I, 196.
175
The final work was very much a reflection of Sohn and Baxter’s vision for the field:
Crawford and Grant, in Crawford and Grant (2007), 91. For the full Advisory Committee
of the Harvard Draft Research Project as it existed at that time, see Sohn and Baxter,
(1961) 55 AJIL 545, 546.
176
Sohn and Baxter (1961), 547: ‘[The purpose of the Draft was] to obviate, as far as
possible, the necessity of looking to customary international law.’
 historical development 35

In an interdependent world the well-being of many countries rests upon an

influx of foreign and managerial skills, the owners of which must be given
effective protection against unjust persecution or discrimination.177

Compared with the 1929 Draft, the 1961 Draft Convention on the
International Responsibility of States for Injuries to Aliens178 represents
a far more ambitious undertaking.179 Section A (general principles and
scope) contained two provisions on the basic principles of state res-
ponsibility (Draft Article 1) and the primacy of international law (Draft
Article 2). Beyond this, the Draft reflected the concern with investor
protection. Section B (Draft Articles 3–13) was a catalogue of investor
rights, concerning areas such as arrest and detention, due process,
expropriation, preservation of means of livelihood and the concept of
denial of justice. This was further reflected in the provisions dealing with
compensation, which were stated not as general principles, but in terms
of exactly which investor protection had been breached – thus, Draft
Article 5 on arrest and detention corresponded to Draft Article 28 on
damages for personal injury and the deprivation of liberty.180
The 1961 (and to a lesser extent, the 1929) Draft had a certain influ-
ence on the work of the ILC.181 In particular, their continued conceptual-
ization of state responsibility as a facet of investor protection defined
García-Amador’s approach to the subject. But this proved unacceptable,
a road not taken:182 under Roberto Ago (Italy) (1963–80), the focus
shifted to developing a comprehensive set of secondary rules that would
underpin international law as a whole, leaving questions of investor
protection to be developed in other ways.183

1.4 The work of the International Law Commission

1.4.1 The first reading: 1949–1996
Following the establishment of the ILC in 1947, state responsibility was
identified as deserving of early attention. But the issues associated with

177 178
Ibid., 545. Ibid., 548.
179 180
Crawford and Grant, in Grant and Barker (2007), 93. Further: ibid., 92–3.
181
Ibid., 94–100.
182
See, most evocatively, the criticism of El-Kouri (United Arab Republic), who saw the
approach as ‘reminiscent of the capitulations system applied in the territories of the
Ottoman Empire in the nineteenth century, where aliens were almost a privileged class
when compared to nationals’: ILC Ybk 1959/I, 141. Further: ibid., 149 (Tunkin); ibid.
(Erim); ibid., 150 (Bartoš).
183
Crawford and Grant, in Grant and Barker (2007), 102–8.
36 the framework of responsibility

responsibility – indeed, the very definition of the field – were to prove

intractable.
Work began in 1956 under García-Amador as Special Rapporteur.184 At
this time, the ILC (influenced heavily by the work of the Harvard
Research) was particularly focused on state responsibility for injury to
aliens and their property, that is to say the content of the substantive
rules of law in that sub-field. Six reports were submitted between 1956
and 1961, but the ILC barely considered them, ostensibly due to the
demands of other topics including diplomatic immunities, the law of
the sea and the law of treaties. It was felt that the disagreement and
division that this conception of the field of responsibility attracted would
stunt progress, and the topic was set aside. Indeed, García-Amador’s
reports prompted substantial criticism on matters of both substance
and overall approach.185
This false start was reversed in 1962, when an intercessional subcom-
mittee of the ILC, chaired by Ago, recommended a focus not on injuries
to aliens in particular, but rather on ‘the definition of the general rules
governing the international responsibility of the state’. In so doing,
there would be no question of neglecting the experience and material gathered in
certain special sectors, specially that of responsibility for injuries to the person or
property of aliens; and, secondly, that careful attention should be paid to the
possible repercussions which new developments in international law may have
had on responsibility.186

Ago was appointed Special Rapporteur in 1963, and produced eight

reports between 1969 and 1980, including a further substantial adden-
dum to his final report on the subject after his election to the Inter-
national Court. During his tenure, the ILC provisionally adopted thirty-
five articles, together comprising Part One (Origin of state responsibility)
of the Draft Articles on State Responsibility.187
In 1979, William Riphagen (Netherlands) was appointed Special Rap-
porteur, presenting seven reports between 1980 and 1986. Ago’s achieve-
ments were reinforced, with Riphagen presenting a complete set of Draft

184
On the work of García-Amador, see further Müller, in Crawford, Pellet and Olleson
(eds.), The Law of International Responsibility (2010) 69. For his proposals see Appendix 4.
185
Notably, García-Amador’s championing of the individual as a subject of international
law was the cause of substantial criticism: First Report, ILC Ybk 1956/II, 197ff. Further:
Crawford and Grant, in Grant and Barker (2007), 89–90; Müller (2010), 72–4.
186
ILC Ybk 1963/II, 228.
187
Ago’s contribution to the law of state responsibility was prodigious: see Pellet, in
Crawford, Pellet and Olleson (2010) 75, 76–83.
 historical development 37

Articles on Parts Two (Content, forms and degrees of international

responsibility) and Three (Settlement of disputes). However, again owing
to the priority given to other topics, only five articles from Part Two were
adopted by the ILC during this period.
On Riphagen’s retirement from the ILC in 1987, Gaetano Arangio-Ruiz
(Italy) was appointed Special Rapporteur, presenting eight reports from
1988 to 1996. During this time, the Drafting Committee was able to deal
with the remainder of Parts Two and Three. In 1996 Arangio-Ruiz
resigned as Special Rapporteur under curious circumstances,188 but this
did not prevent the ILC from adopting a full set of Draft Articles on first
reading (hereafter ‘the Draft Articles’).189
The Draft Articles were a significant statement, already much cited
by the courts and discussed in the literature. A number of the features
of the text could be considered as established, forming basic assumptions
for the second reading. The first concerned the general coverage of the
text. Part One of the Draft Articles concerned questions of responsibility
arising from the breach of any international obligation. No attempt was
made to limit the scope of the Draft Articles to obligations owed by states
to other states. The Draft Articles did not distinguish between treaty and
non-treaty obligations, excluding the notion that international law
draws any distinction between responsibility ex delicto and ex contractu.190
Nor did they distinguish between obligations of a bilateral or multilat-
eral character. This general approach was affirmed in Draft Article 19(1),
which provided that ‘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.’ Later paragraphs of Draft
Article 19 drew a highly controversial distinction between international
‘crimes’ of states and other delicts, but this carried no consequences –
beyond the stigma of a state being labelled as ‘criminal’ – within the text
of Part One itself.
Another basal presumption laid down in 1996 concerned the principle
of ‘objective responsibility’, in the sense that the law as codified in the
Draft Articles contained no requirement of mens rea on the part of a

188
ILC Ybk 1996/I, 30–1, 46–7. See Arangio-Ruiz, (1998) 81 RDI 110.
189
ILC Ybk 1996/II(2), 58ff. For the text see Appendix 5.
190
See e.g. Draft Articles, Arts. 16, 17, the latter proclaiming the irrelevance of ‘the origin,
whether customary, convention or other’ of the obligation breached. Cf. Draft Articles,
Art. 40(2)(f), which drew a barely defensible (and wholly inconsistent) distinction
between treaties and other rules of international law established for the protection of
collective interests. Further: Rainbow Warrior (New Zealand/France), (1990) 82 ILR 500, 550.
38 the framework of responsibility

delinquent state: an act incurring state responsibility could occur even

where a state did not undertake the act intentionally or through a failure
of due diligence.191 This superficially formal move in fact addressed a
number of problems which, left unresolved, could have caused great
doctrinal controversy. It was again consistent with the universal
approach to the field, freeing state responsibility from particular cat-
egories of rules such as those concerning diplomatic protection and
injury to aliens. But too much should not be read into this position.192
As a set of secondary rules, the silence of the Draft Articles did not
indicate an outright prohibition of the attachment of subjective fault
to breaches of state responsibility: the position taken was neutral, and
while no mens rea was ordinarily required on the part of the state, the
primary rule could introduce such a requirement in a given context.
This raises the third presumption of the 1996 acquis, the distinction
between primary and secondary rules.193 The rules of state responsibility
are considered to be secondary rules, governing the application of the
primary rules, being those international legal obligations incumbent on
states by way of custom or treaty. The necessity of such a distinction was
evident from García-Amador’s final proposals.194 Without it, the project
was in constant danger of trying to do too much, in effect telling states
what obligations they could and could not have.
The Draft Articles, however, contained a number of unresolved diffi-
culties, chief among which was the criminalization of international law
contained in Draft Article 19. Reservations as to the terminology of
‘crimes’ and the implications of Draft Article 19 more generally led to
vocal opposition from various states, with the United Kingdom’s position
being illustrative:
There is no basis in customary international law for the concept of international
crimes. Nor is there a clear need for it. Indeed it is entirely possible that the concept
would impede, rather than facilitate, the condemnation of egregious breaches of
the law. The proposed draft articles are likely to make it more difficult for the
international community to frame the terms of the condemnation so as to match
precisely the particular circumstances of each case of wrongdoing. By establishing

191 192
See e.g. Draft Articles, Arts. 1, 3, 40. Gattini, (1999) 10 EJIL 397.
193
See further David, in Crawford, Pellet and Olleson (2010) 27.
194
See e.g. ILC Ybk 1961/II, 46. García-Amador’s proposals tended towards the hubristic,
and included, inter alia, a truncated code of human rights, a parallel statement of the
rights of aliens and their property and of the relationship between international
responsibility and contractual liability, and a rule about the relations of foreign parent
companies and local subsidiaries.
 historical development 39

the category of international crimes, the danger of polarizing moral and political
judgments into a crude choice between crimes and delicts is increased. There is a
real possibility of dissipating international concern with the causes and conse-
quences of wrongful acts by focusing debates on the question whether or not those
acts should be classified as international crimes, rather than on the substance of
the wrong. There is also a serious risk that the category will become devalued, as
cases of greater and lesser wrongs are put together in the same category, or as
some wrongs are criminalized while others of equal gravity are not.195

Other states continued to support the broad notion behind Draft

Article 19, but without being wedded to the terminology.196 Indeed,
the ILC footnoted that it was not wedded to it itself.197
Further problems which arose out of the Draft Articles included a
certain excess of prescription and refinement in Part One, Chapter III,
which sought to establish a typology of obligations in international law.
In addition, structural problems existed within the provisions of Part
Two, including in particular
(a) the identification of states entitled to invoke responsibility,
either as an ‘injured State’ or as a state with a more general
legal interest in the breach of the obligations;
(b) the implementation of responsibility by injured states and states
with a legal interest in the breach (e.g. such issues as the invoca-
tion of responsibility and cases involving a plurality of states); and
(c) the legal consequences flowing from the commission of an
‘international crime’ as defined in Draft Article 19.
Thus, at the close of its forty-eighth session in 1996, the ILC had been
presented with a complete set of draft provisions on the law of state
responsibility for the first time since the project was slated for codifica-
tion in 1947. However, the articles so presented exposed a number of
controversial issues such that their adoption was, as they stood, impos-
sible. Substantial effort and compromise by the Commission would be
required during the second reading.

1.4.2 The second reading: 1998–2001

In 1997 the ILC appointed the author as Special Rapporteur and commit-
ted to completing the second reading of the Draft Articles by 2001.198
195
ILC Ybk 1998/II(1), 120.
196
See e.g. ibid., 113 (Austria), 114 (Czech Republic), 115 (Denmark, on behalf of the Nordic
countries), 115–16 (France), 116–18 (Ireland).
197 198
ILC Ybk 1996/II(2), 63. On the process see further Pellet (2010), 83–7.
40 the framework of responsibility

Three major issues were identified as requiring reconsideration: inter-

national crimes of states, the regime of countermeasures and settlement
of disputes.199
Unsurprisingly, a great deal of discussion took place within the Com-
mission on the vexed question of Draft Article 19 and the concept of
international crimes of states. Initially put to one side to enable consen-
sus to be reached on other issues, the provision was ultimately deleted
outright. However, the idea of a hierarchy of international legal norms
did not disappear entirely from the project. Within the framework of
Part Two of the Draft Articles, provision was made for special conse-
quences applicable to ‘serious breaches of obligations owed to the inter-
national community as a whole’: these included the possibility of
aggravated damages as well as certain obligations on the part of third
states not to recognize a breach of such norms or a state of affairs arising
therefrom as lawful. All states were also under an obligation to
co-operate in order to suppress such situations.200 But this formulation
proved too broad and had to be narrowed further still to secure adoption:
the concept of aggravated damages was abandoned outright and the
duties of non-recognition and of co-operative suppression were limited
to circumstances in which the breach complained of was of a peremptory
or ius cogens norm.201 Finally, it was recognized that every state had the
capacity to invoke state responsibility for breaches of obligations
owed to the international community as a whole, irrespective of their
seriousness.
Another suite of issues addressed by the ILC during the second reading
concerned Part Three, Chapter I, and the invocation of responsibility.
The first such problem was Draft Article 40, which considered the
invocation of responsibility by ‘non-injured’ states where an erga omnes
norm was breached. Concerned that the provision of standing to all
states in such cases would lead to a tsunami of international litigation,
the ILC created two entirely new provisions. The first, which when
finally adopted became Article 42, defined in narrower and more precise
terms the concept of the injured state, drawing on the analogy of Article
60(2) of the Vienna Convention on the Law of Treaties.202 The second,
finally adopted as Article 48, dealt with the invocation of responsibility
in the collective interest – particularly in relation to obligations erga

199
ILC Ybk 1997/II(2), 11, 58.
200
See Draft Arts. 41, 42 provisionally adopted in 2000: Crawford, Third Report, 106–9.
201 202
Crawford, Fourth Report, 12–4. 22 May 1969, 1155 UNTS 331.
 historical development 41

omnes – thus giving effect to the dictum of the International Court in

the Barcelona Traction case.203 Of additional concern was whether rep-
aration was available to injured and non-injured states alike in the
case of a breach of multilateral or communitarian norms. The ILC
decided that the position of the broader class of states interested in
the breach of a collective or community obligation was subsidiary to
that of a state which had suffered actual damage: thus, although ‘non-
injured’ states possessed standing with respect to the breach of a
communitarian norm, their remedies were limited under the terms
of what would become Article 49 to the right to call for cessation of
the act in question and to seek assurances of non-repetition. The
right of such states to reparation was limited to doing so only in the
name of the injured state – that is, the state most interested in
the outcome of the dispute.
The second reading also saw substantial amendments to the Draft
Articles’ consideration of countermeasures, with the relevant provisions
moved from Part Two, Chapter III, to a new Part Three dealing with the
implementation of responsibility. There, they were refined and
developed further to stress the instrumental function of countermeas-
ures in ensuring compliance204 to prohibit certain categories of counter-
measures205 and to clarify the procedural conditions for their
exercise.206 These amendments would prove to be the most controversial
aspect of the provisional text adopted by the ILC in 2000.
On 31 May 2001, the ILC adopted the Articles on the Responsibility
of States for Internationally Wrongful Acts (ARSIWA), a set of fifty-
nine provisions and associated commentary.207 On 12 December 2001,
the United Nations General Assembly (UNGA) took note of the Articles,
annexed the text to GA Resolution 56/83 and recommended it to all
governments without prejudice to their future adoption or other
appropriate action.208 This was in line with the ILC’s recommendation
that the ARSIWA be annexed to a resolution of the General Assembly
pursuant to Article 23(b) of the ILC Statute,209 and that the Assembly

203
Barcelona Traction, Light & Power Company, Limited (Spain v. Belgium), Second Phase, ICJ Rep.
1970 p. 3, at 32.
204
A position endorsed by the International Court in Gabčı́kovo-Nagymaros Project (Hungary/
Slovakia), ICJ Rep. 1997 p. 7, at 56–7.
205
Ultimately adopted as ARSIWA, Art. 50 (Obligations not affected by countermeasures).
206
Ultimately adopted as ARSIWA, Art. 52 (Conditions relating to resort to
countermeasures).
207 208
ILC Ybk 2001/II(2), 26ff. GA Res. 56/83, 12 December 2001, §§3–4.
209
GA Res. 174(II), 21 November 1947.
42 the framework of responsibility

then consider ‘at a later stage, and in 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’.210 The ILC’s recommendation
was a compromise between those members of the Commission who
believed that the ARSIWA would serve the international legal order
best as simply evidence of international law,211 and those who
thought that the potential of the Articles could only be realized via
their adoption as an international convention – that is, a source of law
in its own right.212

1.4.3 Responses to the 2001 Articles

The General Assembly in 2004 adjourned its decision as to the final form
of the Articles,213 deferring again in 2007214 and in 2010.215 On each
occasion, the General Assembly requested that the Secretary-General
solicit comments from members as to how the matter was to proceed.
Those few states that were minded to comment (usually Western) were
generally opposed to the idea of subjecting the ARSIWA to a full diplo-
matic convention, which would have the potential to introduce disagree-
ment and compromise additional to that which had already delayed by
some forty years the codification of state responsibility.216 The opinion
of the United Kingdom is illustrative:
It is difficult to see what would be gained by the adoption of a convention . . . 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 . . . [T]here is a real risk that
in moving towards the adoption of a convention based on the draft articles old

210
ILC Ybk 2001/II(2), 25.
211
That is: not a source of law proper within the meaning of the Statute of the International
Court of Justice, 26 June 1945, 2187 UNTS 3, Art. 38(1)(a)–(c), but a ‘subsidiary means for
the determination of rules of law’ within the meaning of Art. 38(1)(d).
212 213
See further Pellet (2010), 86–7. GA Res. 59/35, 16 December 2004.
214
GA Res. 62/61, 6 December 2007.
215
GA Res. 65/19, 6 December 2010. The subject is due for reconsideration at the 68th
session of the GA (2013).
216
See e.g. UN Doc. A/62/63; UN Doc. A/62/63 Add.1.
 historical development 43

issues may be reopened. This would result in a series of fruitless debates that may
unravel the text of the draft articles and weaken the current consensus. It may
well be that the international community is left with nothing . . . Even were a text
to be agreed, it is unlikely that the text would enjoy the wide support currently
accorded to 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.217

Accompanying the various state views in 2007 on the Articles was a

document containing no less than 129 cases before international or
domestic courts and tribunals where the ARSIWA or the Draft Articles
on first reading were referred to with approval.218 The Articles are an
active and useful part of the process of international law. They are
considered by courts and commentators to be in whole or in large part
an accurate codification of the customary international law of state
responsibility,219 as demonstrated, for example by the International
Court in the Bosnian Genocide case:

The rules for attributing alleged internationally wrongful conduct to a State do

not vary with the nature of the wrongful act in question in the absence of a
clearly expressed lex specialis. Genocide will be considered as attributable to a
State if and to the extent that the physical acts constitutive of genocide that have
been committed by organs or persons other than the State’s own agents were
carried out, wholly or in part, on the instructions or directions of the State, or
under its effective control. This is the state of customary international law, as
reflected in the ILC Articles on State Responsibility.220

217
UN Doc. A/62/63, 6. See also the comments of the Nordic countries per Norway (ibid., 4)
and the US (UN Doc. A/62/63 Add.1, 2).
218
These were collected by the Secretary-General in applying the terms of GA Res. 59/35, 2
December 2004: UN Doc. A/62/62; UN Doc. A/62/62 Add.1.
219
See e.g. Hober, in Muchlinski, Ortino and Schreuer (eds.), The Oxford Handbook of
International Investment Law (2008) 549, 553 (‘there is a general consensus the [ARSIWA]
accurately reflect customary international law on state responsibility’).
220
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 209. Application
of the ARSIWA as reflective of custom has been particularly prevalent in the field of
investor-state arbitration: see e.g. Noble Ventures Inc. v. Romania, ICSID Case No. ARB/
01/11, 12 October 2005, §69 (‘While [the ARSIWA] are not binding, they are widely
regarded as a codification of customary international law.’); EDF (Services) Ltd v.
Romania, ICSID Case No. ARB/05/13, 8 October 2009, §187 n. 7 (‘The [ARSIWA] have
44 the framework of responsibility

Until such time as the General Assembly reaches a definite position as

to the final form of the ARSIWA, they will continue to contribute to
international law, and be further consolidated and refined through their
application by courts and tribunals.

been frequently applied by courts and arbitral tribunals as declaratory of customary

international law’). On the question of a Convention on State Responsibility see
further Chapter 2.
2 Key concepts

2.1 The modern synthesis1

2.1.1 The International Law Commission’s codification
The ILC Articles represent the modern framework of state responsibility.
The fifty-nine Articles are divided into four parts and ten chapters. Part
One, Chapter I sets out certain general principles of state responsibility
which are well established – even axiomatic. For example, Article 3
provides that a state may not rely on its internal law to justify failure
to comply with its international obligations. That principle emerged first
in the Alabama arbitration in 1872,2 and thus was present at the begin-
ning of the modern era of international dispute settlement. Part One,
Chapter II deals with the important topic of attribution of conduct to a
state – in effect defining the public sector for the purposes of responsi-
bility. Article 4 states the basic rule that conduct of any state organ is
attributable to that state as a matter of international law. Article 5 deals
with persons or entities empowered to exercise elements of governmen-
tal authority. Article 6 addresses the special situation in which the
organs of one state are placed at the disposal of another state. Article 7
deals with ultra vires acts of organs or entities: conduct by a state organ,
person or entity exercising governmental authority is to be considered
an act of state under international law even if it exceeds its authority or
disobeys instructions. Articles 8–11 deal with additional cases in which
conduct is attributable by analogy with the concept of agency (though
the term ‘agent’ is not used).

1
See also Crawford, ‘State responsibility’, (2006) MPEPIL; Brownlie’s Principles, Chs. 25–27.
2
Alabama Arbitration (Great Britain v. US) (1872), in Moore, 1 Int. Arb. 495. Further: Bingham,
(2005) 54 ICLQ 1.

45
46 the framework of responsibility

Part One, Chapter III is concerned with certain general aspects of the
breach of international obligations. Article 12 defines in an abstract way
what may be considered the breach of an obligation by a state – that is,
when an act is not in conformity with an obligation incumbent on that
state under international law. Article 13 sets out the principle that a
state is only responsible for a breach if the obligation in question was in
force for the state at the time at which the act was committed. Article 14
introduces the concept of continuing breach of obligations. Article 15
deals with breaches consisting of composite acts, a significant topic
when considering systemic conduct such as certain war crimes,3 crimes
against humanity4 and genocide.5
Part One, Chapter IV is concerned with additional elements of state
responsibility in connection with the acts of other states – what under
systems of municipal law would be described variously as aiding and
abetting, complicity and so on. Article 16 deals with the provision of aid
or assistance by one state with a view to assisting in the commission of a
wrongful act by another state. Article 17 is concerned with the situation
where a state exercises direction or control over another state in the
commission of a wrongful act, Article 18 dealing with the more extreme
case of outright coercion between states. Article 19 affirms that the
attribution of responsibility to an assisting, directing or coercing state
is without prejudice to the responsibility of the state that actually com-
mitted the internationally wrongful act.
Part One, Chapter V establishes six ‘defences’ – circumstances preclud-
ing the wrongfulness of conduct which would otherwise be in breach of a
state’s international obligations. These are to be distinguished from the
grounds for suspension or termination of the obligation itself, for
example suspension or termination of a treaty obligation under the
law of treaties.6 These exculpatory grounds are: consent (Article 20),
self-defence in conformity with the UN Charter (Article 21), counter-
measures in accordance with Part Three, Chapter II (Article 22), force
majeure (Article 23), distress (Article 24) and necessity (Article 25).
Part Two of the ARSIWA, entitled ‘Content of the international respon-
sibility of a State’, is concerned with the consequences which flow by
operation of law from the commission of an internationally wrongful

3
Further: Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3,
Art. 8.
4 5
Ibid., Art. 7. Ibid., Art. 6.
6
Further: Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331, Pt V,
§§3–5.
 key concepts 47

act. Chapter I expresses certain – largely uncontroversial – basic prin-

ciples: the responsible state is under a duty to continue to perform an
obligation breached (Article 29) and to cease the wrongful act (Article 30).
That state must make full reparation for any injury suffered, whether
material or moral, that flows from its wrongful conduct (Article 31).
Consistent with Article 3, it may not plead the provisions of its internal
law as a defence (Article 32). It is affirmed that the obligations set out in
Part Two may be owed by the responsible state to another state, to
several or many states, or to the international community as a whole
(Article 33).
Chapter II of Part Two is concerned with the various aspects of repar-
ation for injury suffered, addressing the forms of reparation (Article 34),
restitution (Article 35), compensation (Article 36), satisfaction (Article
37), interest (Article 38) and the contribution of the injured state to the
eventual injury (Article 39).
Chapter III concerns the controversial subject of serious breaches of
peremptory norms of international law, the compromise reached by the
ILC following the conclusion that the concept of ‘international crimes’
contained in Draft Article 19 (1996) was functionally unworkable. Article
40 sets out the scope of the chapter, and is followed by provisions
regarding consequences of breach under the chapter (Article 41), which
include obligations on all states: (1) to bring any continuing situation
caused by the breach of a peremptory norm to an end through lawful co-
operation; and (2) to withhold recognition of any such continuing situ-
ation as lawful.
Part Three concerns the implementation of the international responsi-
bility of a state. Chapter I is concerned with the invocation of responsi-
bility itself – an issue which might be analogized to municipal law
concepts of standing or the possession of an actionable claim or cause
of action. Article 42 proved a point of controversy during the second
reading. It provides that a state is entitled to invoke the responsibility of
another state where the norm allegedly breached is owed: (a) to that state
individually; or (b) to a group of states including that state (a multilateral
norm) or to the international community as a whole (a communitarian
norm or obligation erga omnes) and the breach of the obligation
(i) specifically affects that state, or (ii) is of such a character as radically
to change the position of all other states to which the obligation is owed
with respect to the future performance of the obligation. It is paired
conceptually with Article 48, which reiterates the capacity to claim for
breach of multilateral or communitarian norms, but limits the remedies
48 the framework of responsibility

available to non-injured states to cessation of the unlawful act combined

with assurances of non-repetition; a non-injured state may only claim
reparations in the interest of an injured state or any beneficiary of the
obligation breached. The balance of the chapter deals with consequential
and procedural issues – including notice of claim (Article 43), admissibil-
ity (Article 44), waiver and acquiescence (Article 45), joint claims (Article
46) and joint responsibility (Article 47).
Part Three, Chapter II deals with countermeasures. The subject proved
a vexed one, with some states questioning the wisdom of including them
in the ILC’s work at all. Countermeasures are measures, otherwise
unlawful, taken against another state in response to an unlawful act by
that state and with a view to obtaining cessation and/or reparation. This
definition was not included in the final text, but Article 49 sets out the
object and limits of countermeasures, restricting them in paragraph
(2) to ‘the non-performance for the time being of international obligations
of the State taking the measures towards the responsible State’
(emphasis added), language that emphasizes the temporary and remedial
character of countermeasures. Article 50 reserves several categories of
international obligations – that is, human rights, humanitarian and
peremptory norms – from suspension by way of countermeasures and
affirms that countermeasures do not relieve the suspending state from
any obligation of dispute settlement with the target state. Article 51
stipulates that countermeasures must be proportionate, and Article 52
places further conditions on the taking of countermeasures. Article 53
deals with the termination of countermeasures. The right of ‘non-
injured’ states to take countermeasures under Article 48(1) is expressly
reserved in Article 54.
Part Four contains certain general provisions. Article 55 provides that
the ARSIWA do not prevail over any lex specialis, that is to say any more
specific provision, dealing with an issue otherwise covered by the Art-
icles but in terms or in a manner which indicates that the special
provision is to prevail. Article 56 is a saving clause, providing that the
international law rules of state responsibility continue to govern ques-
tions of state responsibility to the extent not regulated by the ARSIWA.
Articles 57 and 58 note that the content of the ARSIWA is without
prejudice to the question of responsibility for international organizations7

7
The ILC concluded its work on the responsibility of international organizations for
internationally unlawful acts in 2011, adopting a set of draft articles with commentary:
DARIO and Commentary.
 key concepts 49

and individuals under international law.8 Article 59 reserves issues arising

under the United Nations Charter.

2.1.2 The modern concept of state responsibility

The essential premise of the ARSIWA – the concept of state responsibility
itself – is introduced in Article 1:
Every internationally wrongful act of a State entails the international responsi-
bility of that State.

On an initial reading, Article 1 seems to state the obvious. But there

are several things it does not say, and its importance lies in these
silences. First, it does not spell out any general preconditions for respon-
sibility in international law, such as ‘fault’ on the part of the wrongdoing
state, or ‘damage’ suffered by any injured state.9 Second, it does not
identify the state or states, or the other international legal persons, to
which international responsibility is owed.10 It thus does not follow the
tradition of treating international responsibility as a secondary legal
relationship of an essentially bilateral character (a relationship of the
wrongdoing state with the injured state or, if there happens to be more
than one injured state, with each of those states separately). Rather, it
appears to present the situation of responsibility as an ‘objective correla-
tive’ of the commission of an internationally wrongful act.
Before turning to these two aspects, certain less controversial points
may be noted about Article 1. First, the term ‘internationally wrongful
act’ is intended to cover all wrongful conduct of a state, whether it arises
from positive action or from an omission or a failure to act.11 This is
8
The position of the individual in international law has not as yet been taken up by the
ILC as a whole, though it has considered and concluded draft articles on certain related
sub-topics, notably on questions of nationality, including statelessness: ILC Ybk 1954/II,
147. For a review of the question as whole, see Parlett, The Individual in the International
Legal System (2011).
9
These silences pertain to ARSIWA, Art. 2, as much as, or even more than, Art. 1, since
they relate to the question whether there has been a breach of an international
obligation. For the sake of convenience, the issues are discussed here.
10
Although phrased in terms of statehood, this basal notion is applicable to all
international legal persons; thus, in its work on the responsibility of international
organizations, the ILC has used precisely the same formulation as ARSIWA, Art. 1. Those
entities which are not as such subjects of international law – i.e. individuals,
corporations and non-governmental organizations – are not yet covered by the general
regime.
11
Draft Articles Commentary, Art. 1, §14. The Draft Articles were adopted sporadically
during the tenures of Special Rapporteurs Ago, Riphagen and Arangio-Ruiz, and while
the commentary to Part I is collected in Rosenne (ed.), The International Law Commission’s
50 the framework of responsibility

more clearly conveyed by the French and the Spanish than by the English
text, but the point is made clear also in Article 2, which refers to
‘conduct consisting of an action or omission’.
Second, conduct which is ‘internationally wrongful’ entails inter-
national responsibility. ARSIWA Articles 20–25 deal with circumstances
which exclude wrongfulness and, thus, international responsibility in
the full sense. Article 27(b) reserves the possibility that compensation
may be payable for harm resulting from acts otherwise unlawful, the
wrongfulness of which is precluded under certain of these articles. The
commentary to Draft Article 1 went further, suggesting that it leaves
open the possibility of ‘“international responsibility” – if that is the right
term – for the harmful consequences of certain activities which are not
prohibited by international law’.12 Since 1976 the ILC had grappled with
the question of ‘liability’ for harmful consequences of acts not pro-
hibited by international law. Its relative lack of success in that endeavour
was due, in part at least, to the failure to develop a terminology in
languages other than English which is capable of distinguishing ‘liabil-
ity’ for lawful conduct causing harm, on the one hand, and responsibility
for wrongful conduct, on the other. That experience tends to suggest
that the term ‘state responsibility’ in international law is limited to
responsibility for wrongful conduct, even though Article 1 was intended
to leave that question open. Obligations to compensate for damage not
arising from wrongful conduct are best seen either as conditions on the
lawfulness of the conduct concerned, or as discrete primary obligations
to compensate for harm actually caused. In any event, except in the
specific and limited context of Article 27(b), such obligations fall outside
the scope of the ARSIWA.13
Third, in stating that every wrongful act of a state entails the inter-
national responsibility of that state, ARSIWA Article 1 affirms the basic

Draft Articles on State Responsibility: Part 1, Articles 1–35 (1991), the commentary to Parts II
and III is scattered throughout the yearbooks from 1983 to 1996, as listed in the table of
abbreviations.
12
Draft Articles Commentary, Art. 1, §13.
13
Between 1974 and 1997, the ILC considered the topic of international liability for
injurious consequences arising out of acts not prohibited by international law. The topic
was eventually subdivided into two further topics: the prevention of transboundary
damage from hazardous activities (draft articles and commentary adopted in 2001: ILC
Ybk 2001/II(2), 144), and international liability in case of loss from transboundary harm
arising out of hazardous activities (draft articles and commentary adopted in 2006: ILC
Report 2006, UN Doc. A/61/10, 101). For commentary see Boyle, in Crawford, Pellet and
Olleson (2010) 95.
 key concepts 51

principle that each state is responsible for its own wrongful conduct. The
commentary notes that this is without prejudice to the possibility that
another state may also be responsible for the same wrongful conduct, for
example if it has occurred under the control of the latter state or on its
authority.14 Some aspects of the question of the involvement or implica-
tion of a state in the wrongful conduct of another are dealt with in
Articles 16 to 18. There is also the possibility of concurrent responsibility
between a state and an international organization.15

2.2 The language of state responsibility16

2.2.1 Typology of state responsibility
Municipal legal systems will often distinguish types or degrees of liability
according to the source of the obligation breached – for example crime,
contract, tort or delict.17 No such general distinction appears in inter-
national law. As was said in Rainbow Warrior,
[T]he general principles of International Law concerning State responsibility are
equally applicable in the case of breach of treaty obligation, since in the inter-
national 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 . . .18

14
Draft Articles Commentary, Art. 1, §§7, 11.
15
E.g. the decisions of the Hague Court of Appeal in Nuhanović v. Netherlands, LJN: BR5388, 5
July 2011; Mustafic´ v. Netherlands, LJN: BR5386, 5 July 2011; DARIO, Arts. 14–18, 48,
58–62.
16
The Draft Articles were expressed in terms of ‘the State which has committed an
internationally wrongful act’. Aside from being cumbersome, this terminology was
deficient in that its tense impliedly captured only those acts which had already occurred,
while excluding situations created by illegal actions which had commenced but had not
been abated, e.g. the occupation of territory unlawfully acquired. The Court in Gabčı́kovo-
Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7, 52, 56, preferred the term
‘wrongdoing State’; the ILC settling on ‘responsible State’, which has the further
advantage that it does not seem to prejudice the question of wrongdoing. See Crawford,
First Report, 24–6.
17
Cf. the division of obligations in Roman law between contract, delict and quasi-contract/
unjust enrichment: ‘Iuris praecepta sunt haec: honeste vivere, alterum non laedere,
suum cuique tribuere’ (‘The precepts of the law are these: to live honestly, to injure no
one, and to give every man his due’): Institutes of Justinian (533), Bk 1, Title 1, §3 (trans.
Moyle, 5th edn, 1913).
18
Rainbow Warrior (New Zealand/France), (1990) 82 ILR 500, 551. For the arguments of the
parties: ibid., 547–50. See also Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 38–9: ‘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 ARSIWA, Art. 12: ‘There is a breach of an international obligation by a State
52 the framework of responsibility

To this extent the rules of state responsibility form a single system,

without any precise comparator in national legal systems. The fact is
that international law has to address a wide range of needs on the basis
of a few basic tools and techniques. For example, treaties may perform a
variety of functions – legislative or quasi-constitutional (e.g. by establish-
ing international institutions or organizations in the global public inter-
est) or contractual (e.g. via a bilateral trade or loan agreement). The
obligation arises from the same species of legal instrument; unlike
national law, there is no categorical distinction between the legislative
and the contractual.
The tribunal in the Rainbow Warrior arbitration19 and the International
Court in Gabčı́kovo-Nagymaros20 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 Vienna Convention on the Law of Treaties (VCLT). However, the
two perform different functions. The rules of treaty law determine when
a treaty obligation is in force for a state and what it means – that is, how
it is to be interpreted. Conversely, the laws of state responsibility deter-
mine the legal consequences of the breach in terms of such matters as
reparation. A state faced with a material breach of a treaty obligation
may choose to suspend or terminate the treaty in accordance with the
applicable rules of treaty law, thereby freeing itself from the burden of
reciprocity,21 but such an act does not prevent it from making a claim for
reparation flowing from the breach.22
National legal systems commonly distinguish ‘civil’ from ‘criminal’
responsibility, although the relations between the two differ markedly
between various systems and may well overlap – particularly in fields
such as competition law and other ‘regulatory’ spheres. By contrast,
there is little or no state practice to support ‘punitive’ or ‘penal’
consequences for breaches of international law. Although the ILC’s
Draft Articles as adopted on first reading in 1996 sought to introduce a
notion of ‘international crimes’ of states in Draft Article 19, the
concept was not supported by state practice, and caused substantial
disagreement within the Commission and in the UNGA Sixth (Legal)

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).
19 20
(1990) 82 ILR 500, 551. ICJ Rep. 1997 p. 7, 8–9.
21
VCLT, Art. 60.
22
Thus a state may terminate a treaty for breach while claiming damages for breaches
which have already occurred: VCLT, Arts. 70(1)(b), 72(1)(b), 73.
 key concepts 53

Committee.23 The concept was set aside in 1998 and dropped defini-
tively in 2001, clearing the way for the ARSIWA to be adopted without
opposition. This episode again suggests that state responsibility
eschews any division between ‘criminal’ and ‘civil’ illegality. That
approach was explicitly endorsed by the International Court in the
Genocide case in the following passage:
The different procedures followed by, and powers available to, this Court and to
the courts and tribunals trying persons for criminal offences, do not themselves
indicate that there is a legal bar to the Court itself finding that genocide . . . [has]
been committed. Under its Statute the Court has the capacity to undertake that
task, while applying the standard of proof appropriate to charges of exceptional
gravity . . . Turning to the terms of the Convention itself, the Court has already
held that it has jurisdiction . . . to find a State responsible if genocide . . . [is]
committed by its organs, or persons or groups whose acts are attributable to it . . .
Any other interpretation could entail that there would be no legal recourse
available under the Convention in some readily conceivable circumstances: geno-
cide has allegedly been committed within a State by its leaders but they have not
been brought to trial because, for instance, they are still very much in control of
the powers of the State including the police, prosecution services and the courts
and there is no international penal tribunal able to exercise jurisdiction over the
alleged crimes; or the responsible State may have acknowledged the breach. The
Court accordingly concludes that State responsibility can arise under the Con-
vention for genocide and complicity, without an individual being convicted of the
crime or an associated one.24

But this does not prevent international law from responding appropri-
ately to different kinds of breach and their different impacts on other
states, on people and on the international legal order. First, individual
state officials have no impunity if they commit crimes against inter-
national law, even if they may not have been acting for their own
individual ends but in the interests or perceived interests of the state.
Second, the ARSIWA make special provision for the consequences of
certain serious breaches of peremptory norms of international law: see
Articles 40, 41. A breach is serious where it involves a ‘gross or systemic
23
No state has ever been accused of criminal conduct before an international court, even
where the conduct in question was redolent of genocide, aggression or any other form of
acknowledged international crime: de Hoogh, Obligations Erga Omnes and International
Crimes (1996); Abi-Saab, (1999) 10 EJIL 339; Jørgensen, The Responsibility of States for
International Crimes (2000); Pellet, (2001) 32 NYIL 55; J. Crawford, ‘International crimes of
states’, in Crawford, Pellet and Olleson (2010) 405.
24
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 119–20. See also Prosecutor v.
Blaškic´, Objection to the Issue of Subpoenae Duces Tecum, (1997) 110 ILR 607.
54 the framework of responsibility

failure by the responsible State to fulfil’ such an obligation.25 The main

consequence of such a breach is the obligation of all other states to
refrain from recognizing as lawful the situation thereby created, or from
rendering aid or assistance in maintaining it.26 In addition, states should
co-operate to bring the serious breach to an end ‘through any lawful
means’.27 The principal avenues for such co-operation are the inter-
national organizations, most notably the UN Security Council, whose
powers to take non-forcible and even forcible measures to restore inter-
national peace and security substantially overlap with these provisions.28
But the possibility remains of individual state action seeking remedies
against states responsible for such serious breaches as genocide, war
crimes, or the denial of fundamental human rights.29

2.2.2 Prerequisites for the invocation of responsibility

2.2.2.1 The debate over ‘damage’ and ‘injury’
A key question in the drafting of the ARSIWA was that of the prerequis-
ites to the invocation of responsibility – that is, the extent of the harm,
damage or injury required for a state to invoke the responsibility of
another state for an internationally wrongful act. Although the responsi-
bility 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 obliga-
tions of cessation and reparation incumbent on the responsible state.
Following the adoption of Part I of the Draft Articles during Ago’s
tenure as Special Rapporteur, it became clear that the two terms ‘damage’
and ‘injury’ were problematic. Both terms were ultimately preserved in
the ARSIWA, which use ‘injury’ and ‘injured State’ throughout; with
‘injury’ defined (perhaps not very felicitously) in Article 31(2) to include
‘any damage, whether moral or material, caused by the internationally
wrongful act of a State’. As to the basic distinction between ‘injury’ and
25 26
ARSIWA, Art. 40(2). ARSIWA, Art. 41(2).
27
See further Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, ICJ Rep. 2004 p. 136, 200.
28
Further Koskenniemi, (2001) 72 BYIL 337.
29
E.g. 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
obligations. See e.g. the catalogue of state practice discussed in the commentary to
ARSIWA, Art. 54(3) and (4), which may be evidence of such a customary rule. The
question was ultimately left open by the ILC for future development in Art. 54. See
Chapter 11.
 key concepts 55

‘damage’, it is clear that ‘injury’ involves the concept of iniuria – that is,
infringement of rights or legally protected interests – whereas the term
‘damage’ refers to material or other loss suffered by the injured state.
Thus the term ‘damage’ is used to refer to actual harm suffered;30 a
further distinction, drawn between ‘economically assessable damage’
and ‘moral damage’ in Draft Articles 44 and 45, was eventually dis-
carded.31 Equally clearly, 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.
Following the adoption of Part I, a number of governments questioned
whether a specific requirement of actual ‘damage’ should not be
included in the basic definition of state responsibility in Draft Articles
1 and/or 332 – put another way, whether the mere breach of an inter-
national obligation should be considered as not actionable per se. In the
view of Argentina,
in the case of a wrongful act caused by one State to another . . . the exercise of a
claim makes sense only if it can be shown that there has been real financial or
moral injury to the State concerned. Otherwise, the State would hardly be justified
in initiating the claim. In a similar vein, it has been stated that even in the human
rights protection treaties . . . the damage requirement cannot be denied. What is
involved is actually a moral damage suffered by the other States parties . . . [T]he
damage requirement is, in reality, an expression of the basic moral principle which
stipulates that no one undertakes an action without an interest of a legal nature.33

Similarly, France argued that responsibility could only exist vis-à-vis

another injured state, which must have suffered moral or material
injury. In relation to the Draft Articles, it stated:
[T]he existence of damage is an indispensable element of the very definition of
State responsibility . . . International responsibility presupposes that, in addition
to an internationally wrongful act having been perpetrated by a State, the act in
question has injured another State. Accordingly, if the wrongful act of State A has
not injured State B, no international responsibility of State A with respect to State
B will be entailed. Without damage, there is no international responsibility.34

France thus proposed the addition to Draft Article 1 of the words ‘vis-à-
vis injured States’, and a comprehensive redrafting of Draft Article 40 to
incorporate the requirement of ‘material or moral damage’ in all cases
except breaches of fundamental human rights.35

30 31
See ARSIWA, Arts. 31, 36(1) and (2), 47. Crawford, Third Report, 54.
32 33 34
Later ARSIWA, Art. 2. ILC Ybk 1998/II(1), 103. Ibid., 101.
35
Ibid., 101–2, 138–9.
56 the framework of responsibility

A number of other governments, by contrast, approved the principles

underlying what would become Articles 1 and 2. They included Austria,
Germany, Italy, Mongolia, the Nordic countries and the United Kingdom.
Germany, for example, regarded Draft Article 1 as expressing a ‘well-
accepted general principle’.36 Similarly, the position taken in Draft Art-
icles 1 and 3 was generally approved of in the literature on these articles
following their initial adoption by the ILC in 1973.37 The case law prior to
the adoption of the Draft Articles as a whole was similarly supportive,
the most directly relevant decision prior to 1996 being the Rainbow
Warrior, which concerned the failure by France to keep two of its agents
in confinement on the island of Hao, as had been previously agreed
between France and New Zealand. It was argued by France that its failure
to return the agents to the island did not entitle New Zealand to any relief.
Since there was no indication that ‘the slightest damage has been suffered,
even moral damage’, the argument ran, there was no basis for international
responsibility. New Zealand referred, inter alia, to Draft Articles 1 and 3, and
denied that there was any separate requirement of ‘damage’ for the breach
of a treaty obligation. In oral argument France accepted that in addition to
material or economic damage there could be ‘moral and even legal
damage’. The France–New Zealand Arbitration Tribunal held that the
failure to return the two agents to the island ‘caused a new, additional
non-material damage . . . of a moral, political and legal nature’.38
Although the Rainbow Warrior tribunal was thus able to avoid pro-
nouncing directly on Draft Articles 1 and 3, the breadth of its formula-
tion (‘damage . . . of a moral, political and legal nature’) suggested that
there was no logical stopping place between, on the one hand, the
traditional and relatively narrow concept of ‘moral damage’ and, on
the other hand, the broader conception of legal damage arising from
the breach of a state’s right to the performance of an obligation. The
reasoning behind this conclusion is clear enough. It had at that stage
long been accepted that states may assume international obligations on
virtually any subject and having, in principle, any content.39 Within
those broad limits, how can it be said that a state may not bind itself,

36
Ibid., 101 (Austria, Denmark on behalf of the Nordic countries), 102 (Germany, United
Kingdom), 104 (Mongolia).
37
See e.g. Reuter, in 2 Estudios de derecho internacional: Homenaje al profesor Miaja de la Muela
(1979) 837; Tanzi, in Spinedi and Simma (1987) 1.
38
Rainbow Warrior (New Zealand/France), (1990) 82 ILR 500, 569.
39
See e.g. SS Wimbledon, (1923) PCIJ Ser. A No. 1, 25: ‘the right of entering into international
engagements is an attribute of State sovereignty’.
 key concepts 57

categorically, not to do something? On what basis is that obligation to

be reinterpreted as an obligation not to do that thing only if one or
more other states would thereby be damaged? The other states that are
parties to the agreement, or bound by the obligation, may be seeking
guarantees, not merely indemnities. But as soon as that possibility is
conceded, the question whether damage is a prerequisite for a
breach becomes a matter to be determined by the relevant primary rule.
It may be that many primary rules do contain a requirement of damage,
however defined. Some certainly do.40 But there is no warrant for the
suggestion that this is necessarily the case, that it is an a priori
requirement.
Similar reasoning was set out, albeit rather briefly, in the commentary
to Article 31.41 This pointed out that all sorts of international obligations
and commitments are entered into covering many fields in which
damage to other individual states cannot be expected, would be difficult
to prove or is not of the essence of the obligation. This is not only true of
international human rights (an exception allowed by France), or of other
obligations undertaken by the state to its own citizens. It is true in a host
of areas, including the protection of the environment, disarmament and
other ‘preventive’ obligations in the field of peace and security, and the
development of uniform standards or rules in such fields as private
international law. For example, if a state agrees to take only a specified
volume of water from an international river or to adopt a particular
uniform law, it breaches that obligation if it takes more than the agreed
volume of water or if it fails to adopt the uniform law, and it does so
irrespective of whether other states or their nationals can be shown to
have suffered specific damage thereby. In practice, no individual release
of chlorofluorocarbons (CFCs) or other ozone-depleting substances
causes identifiable damage: it is the phenomenon of diffuse, widespread
releases that is the problem, and the purpose of the relevant treaties is to
address that problem.42 In short, the point of such obligations is that
they constitute, in themselves, standards of conduct for the parties. They
are not only concerned to allocate risks in the event of subsequent harm
occurring.

40
E.g. Lac Lanoux (Spain v. France), (1957) 12 RIAA 281.
41
ARSIWA Commentary, Art. 31, §12.
42
Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 UNTS
324; Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987,
1522 UNTS 28. Further: Held, Fane-Hervey and Theros (eds.), The Governance of Climate
Change (2011).
58 the framework of responsibility

There is, however, a corollary, not pointed out in the commentary to

ARSIWA Article 2. If damage were to be made a distinct prerequisite for
state responsibility, the onus would be on the injured state to prove that
damage, yet in respect of many obligations this may be difficult to do.
A state could proceed to act inconsistently with its commitment, in the
hope or expectation that damage might not arise or might not be able to
be proved. This would tend to undermine and render insecure inter-
national obligations establishing minimum standards of conduct. There
is also the question by what standard ‘damage’ is to be measured. Is any
damage at all sufficient, or is ‘appreciable’ or ‘significant’ damage
required? This debate already occurs in specific contexts;43 to make
damage a general requirement would inject it into the whole field of
state responsibility.
It may be argued that failure to comply with international obligations
creates a ‘moral injury’ for other states in whose favour the obligation
was assumed, so that the requirement of damage is readily satisfied.44
But the traditional understanding of ‘moral damage’ was much
narrower than this. The reason why a breach of fundamental human
rights is of international concern (to take only one example) is not
because such breaches are conceived as assaulting the dignity of
other states; it is because they assault human dignity in ways
which are specifically prohibited by international treaties or general
international law.
For these reasons the decision not to articulate in either ARSIWA
Article 1 or 2 a separate requirement of ‘damage’ in order for there to
be an internationally wrongful act was clearly right in principle. But too
much should not be read into that conclusion for the following reasons:

43
E.g. the United Nations Convention on the Law of the Non-navigational Uses of
International Watercourses, GA Res. 51/229, 21 May 1997, Annex, Art. 5.
44
Cf. the French response in Rainbow Warrior, (1990) 82 ILR 500, 545–7. In its comments on
the Draft Articles, the French government noted that it:
is not hostile to the idea that a State can suffer legal injury solely as a result of a
breach of a commitment made to it. However, the injury must be of a special
nature, which is automatically so in the case of a commitment under a bilateral
or restricted multilateral treaty. By contrast, in the case of a commitment under a
multilateral treaty, the supposedly injured State must establish that it has
suffered special material or moral damage other than that resulting from a
simple violation of a legal rule. A State cannot have it established that there has
been a violation and receive reparation in that connection if the breach does not
directly affect it. (ILC Ybk 1998/II(1), 138–9)
This amounts to saying that a state cannot guarantee its performance of a multilateral
treaty – a doctrinal a priori if ever there was one.
 key concepts 59

(a) First, particular rules of international law may require actual

damage to have been caused before any issue of responsibility is
raised. To take a famous example, Principle 21 of the Stockholm
Declaration of 1972 is formulated in terms of preventing
‘damage to the environment of other States or of areas beyond
national jurisdiction’.45 This is consistent with Lac Lanoux:
whether there should be responsibility for environmental risk
if no damage occurs is a separate, vexed, question.46
(b) Second, Articles 1 and 2 do not take a position as to whether
and when obligations are owed to ‘not-directly injured States’,
or to states generally, or to ‘the international community as a
whole’. That question is dealt with in Article 48. The require-
ment of damage as a prerequisite to a breach could arise equally
in a strictly bilateral context, as it did in the Rainbow Warrior
arbitration.
(c) Third, Articles 1 and 2 do not, of course, deny the relevance of
damage, moral and material, for various purposes of responsi-
bility. They simply deny that there is a categorical requirement
of moral or material damage before a breach of an international
norm can attract responsibility.
The ILC’s decision not to make mention of ‘damage’ in ARSIWA Articles
1 and 2 did not mean that it was not aware of the wider considerations of
the concept. This may be seen from ARSIWA Article 42, which dealt with
and thereby defined the concept of ‘injured state’. Three cases were
identified in Article 42. In the first case, in order for an injured state to

45
Declaration of the UN Conference on the Human Environment, 16 June 1972, UN Doc.
A/CONF.48/14/Rev. 1. Similar language is used in Principle 2 of the Rio Declaration on
Environment and Development, 12 August 1992, UN Doc. A/CONF.151/26, Vol. I. Cf. the
International Court’s formulation of the principle in Legality of the Threat or Use of Nuclear
Weapons, ICJ Rep. 1996 p. 226, 241–2.
46
As the ARSIWA Commentary notes, ‘[i]n some cases what matters is the failure to take
necessary precautions to prevent harm even if in the event no harm occurs’: ARSIWA
Commentary, Art. 31, §6. It will depend on the formulation of the primary obligations,
but if a state is under an obligation not to cause risk of harm, and it causes risk, then it is in
breach of its international obligations regardless of whether damage ultimately ensues.
The ILC separated responsibility for risk from the main study of state responsibility
because ‘[o]wing to the entirely different basis of the so-called responsibility for risk, the
different nature of the rules governing it, its content and the forms it may assume, a
simultaneous examination of the two subjects could only make both of them more
difficult to grasp’ (ILC Ybk 1970/II, 178). The principle of preventing and minimizing risk
is of particular importance in the area of international environmental law; see e.g. Sands
and Peel, Principles of International Environmental Law (3rd edn, 2012), 200–3, 217–28.
60 the framework of responsibility

invoke the responsibility of another, that state must have an individual

right to the performance of an obligation, in the way that a state party to a
bilateral treaty has vis-à-vis the other state party (Article 42(a)). Second, a
state may be specially affected – although not injured per se – 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 (Article 42(b)(i)) – for example
the pollution of the high seas in violation of the United Nations Conven-
tion on the Law of the Sea (UNCLOS)47 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’.48 Those states so
affected would then be considered injured by the breach, independently
of any general or collective interest of the states parties to UNCLOS. Third,
it may be that the performance of the particular obligation by the respon-
sible state is a necessary condition of its performance by all the other
states (Article 42(b)(ii)): these are so-called ‘integral’ or ‘interdependent’
obligations.49 In terms of multilateral treaties such obligations will usu-
ally arise under treaties establishing particular regimes, where the for-
bearance of each is based on the forbearance of all; for example, were one
state party to the Antarctic Treaty50 to claim sovereignty over the
remaining unclaimed area of Antarctica contrary to Article 4, all other
states parties would be considered injured thereby and equally entitled to
seek cessation, reparation (in the form of the annulment of the claim) and
assurances of non-repetition. Other commonly cited examples include
treaties on disarmament or arms control, which are based on the assump-
tion of similar obligations by the other contracting states.51

2.2.2.2 The principle of ‘objective responsibility’

Throughout the period in which the Draft Articles were before the ILC,
no government argued in favour of the specification of a general require-
ment of fault as a prerequisite to state responsibility.52 The point was
made, for example, by Denmark on behalf of the Nordic countries:
47 48
10 December 1982, 1833 UNTS 3. ARSIWA Commentary, Art. 42, §12.
49
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, e.g. human rights or environmental
law obligations, which are not owed on an ‘all or nothing’ basis: Fitzmaurice, ILC Ybk
1957/II, 16, 54. The terminology has accordingly given rise to confusion on occasion, and
the term ‘interdependent obligation’ is more appropriate.
50
1 December 1959, 402 UNTS 71.
51
For further on the concept of ‘injured State’ see Chapters 11, 15, 17 and 21.
52
Crawford, First Report, 28.
 key concepts 61

To accept fault as a general condition in establishing responsibility would con-

siderably restrict the possibility of a State being held responsible for the breach of
an international obligation. Moreover, proof of wrongful intent or negligence is
always very difficult. In particular, when this subjective element has to be
attributed to the individual or group of individuals who acted or failed to act
on behalf of a State, its research becomes uncertain and elusive. If the element of
fault is relevant in establishing responsibility, it already follows from the par-
ticular rule of international law governing that situation, and not from being a
constituent element of international responsibility.53

Nonetheless, the question of ‘fault’ figured prominently in the litera-

ture,54 and was seen in 1998 as a question of the same order as the
question whether ‘damage’ was a prerequisite for responsibility. Ultim-
ately, the two questions were decided the same way, and no general
requirement of fault was to be articulated.
A key factor behind this conclusion was that, following the abandon-
ment of Draft Article 19, the Articles should not deal with the concept of
international crimes of states. Were they to have done so, there would
have been good reasons for spelling out a requirement of fault: a state
could not possibly be considered responsible for a crime without fault on
its part. Equally, there would be compelling reasons not to add any
distinct requirement of damage or harm to other states. State conduct
would not be considered criminal by reason of the damage caused to
particular states but by reason of the character of the conduct itself.
Once more, it should be stressed, state responsibility is predicated on a
principle of ‘objective’ liability,55 in the sense that once the breach of an
obligation owed under a primary rule of international law is established,
this is prima facie sufficient to engage the secondary consequences of
responsibility. Unless otherwise provided, no delinquency, culpa or mens
rea need be proved, although certain manifestations of the ‘intention’ or
‘design’ behind state action may be relevant to the justifications and
excuses contained within ARSIWA Articles 20–25, for example in cases
of duress or coercion. And this conclusion is desirable as a matter of

53
ILC Ybk 1998/II(1), 101.
54
See Brownlie, System of the Law of Nations: State Responsibility, Part I (1983), 38–48, and
authorities there cited.
55
The term itself is regrettable, and appears nowhere in the ARSIWA: it is – owing to the
lack of a viable opposite number in the sense of a ‘subjective’ responsibility – generally
to be avoided. The correct view is that there is no such thing as ‘objective’ responsibility
or ‘subjective’ responsibility – there is only responsibility properly so called. See further
Chapter 3. On the theory of responsibility see Crawford and Watkins, in Besson and
Tasioulas (eds.), The Philosophy of International Law (2010) 283.
62 the framework of responsibility

policy, since the ‘intention’ underlying state conduct is a notoriously

difficult idea, quite apart from questions of proof.

2.2.3 ‘Delictual capacity’

On their adoption in 1996, the Draft Articles contained Draft Article 2,
which provided that ‘[e]very State is subject to the possibility of being held
to have committed an international wrongful act entailing its inter-
national responsibility.’ This curious formulation, concerning the possi-
bility of responsibility rather than responsibility itself, was a truism: by
definition no state can be immune from the principle of international
responsibility. Any proposition to the contrary would be a denial of
international law and a rejection of the principle of state equality.
The commentary to Draft Article 256 discussed a range of questions:
the problem of ‘delictual capacity’ in international law (cf. the position of
minors in national law); the responsibility of the component units of a
federated state; and the responsibility of a state on whose territory other
legal actors are operating. It concluded – obviously enough – that none of
these situations constituted an exception to the general principle of state
responsibility.
As to the first of these, the ILC decided in 1973 not to formulate Draft
Article 2 in terms of ‘delictual capacity’; it was paradoxical to assert that
international law could confer the ‘capacity’ to breach its own rules.57
A further difficulty with the notion was the undue focus on the question
of breach. In the case of non-state entities, a bundle of questions about their
legal personality, to what extent international law applies to them and their
international accountability for possible breaches do indeed arise. But
insofar as states are concerned, the position is clear: all states are respon-
sible for their own breaches of international law, subject to generally
available defences enumerated in ARSIWA Part One, Chapter V. As the
ARSIWA deal only with states, it was unnecessary to discuss the wider
questions raised by Draft Article 2: the provision was accordingly deleted.58

2.2.4 ‘Responsibility’ and ‘liability’

Lawyers in the civilian tradition sometimes consider the common law to
contain two separate concepts, responsibility and liability.59 The first
56 57
Draft Articles Commentary, Art. 2. Ibid., Art. 3, §9.
58
See Crawford, First Report, 31; ILC Ybk 1998/I, 199–200.
59
For example, UNCLOS, Art. 263 is entitled ‘Responsibility and liability’, and the English
text makes reference to the two terms – apparently interchangeably – throughout. The
other language texts, however, make reference only to one term apiece, thus in French
 key concepts 63

term is thought to mean legal responsibility in the ordinary sense;

the second to mean responsibility for which no culpa or fault need
be identified: what in the common law would be referred to as
‘strict’ or ‘absolute’ liability. In fact, the presence of the term ‘liability’
on its own means no more or less than the term ‘responsibility’ would,
and it is only the inclusion of an adjective that makes a difference.
Thus contractual, tortious or criminal liability under the common law
means exactly that: responsibility incurred under the law of contract,
tort or crime.
The ARSIWA make no reference to ‘liability’, although the term
does appear occasionally in the commentaries. Extensive reference
was, however, made to ‘liability’ in the ILC’s work on the prevention
of transboundary harm from hazardous activities and the allocation of
loss in the case of transboundary harm arising out of hazardous
activities, both of which formed part of the primordial topic ‘Inter-
national liability for injurious consequences arising out of acts not
prohibited by international law’.60 As a purely linguistic matter,
‘responsibility’ as used in the ARSIWA and ‘liability’ as it appears in
the ILC’s work on transboundary harm bear the same meaning. As
was noted in its commentary to the Draft Articles on the Prevention of
Transboundary Harm from Hazardous Activities,61 the topics were
separated not due to any categorical distinction between ‘responsibil-
ity’ and ‘liability’, but to make it clear that state responsibility is
concerned with acts which are unlawful under international law,
whereas the ILC’s work on transboundary harm was concerned with
activities which prima facie are not, but which might give rise to harm
in operations for which (absent due diligence) responsibility/liability
might arise.62

and Spanish, respectively, ‘Responsabilité’ and ‘Responsabilidad’. See further Boyle,

(2008) 39 ICLQ 1, 8–10; Boyle (2010).
60
For the history of the liability topic see Special Rapporteur Pemmaraju Sreenivasa, First
Report, UN Doc. A/CN.4/531, 5–20; Boyle (2010), 95–7.
61
ILC Ybk 2001/II(2), 150. See also ILC Ybk 1977/II(2), 6.
62
For criticism of the terminological confusion underlying the ‘liability’ topic see e.g.
Boyle (2010). One possibility – probably linguistically foreclosed – would be to confine
the term ‘liability’ to those special cases where actual loss is compensable for the
exercise of a legal right (sometimes referred to as qualified privilege): e.g. at common
law, certain rights of entry on to land, or, in international law, the obligation to
indemnify for losses incurred in searching an innocent vessel on the high seas (UNCLOS,
Art. 110(3)).
64 the framework of responsibility

2.2.5 Rights and obligations

2.2.5.1 ‘Primary’ and ‘secondary’ obligations63
When it reconsidered the issue in 1962–3, the ILC saw state responsi-
bility as concerning ‘the definition of the general rules governing the
international responsibility of the State’, by which was meant responsi-
bility for wrongful acts. The emphasis was on the word ‘general’. The
draft articles were to concern themselves with the framework for state
responsibility, irrespective of the content of the substantive rule
breached in any given case. The distinction between ‘primary’ and ‘sec-
ondary’ rules was formulated by Roberto Ago as follows:
The Commission agreed on the need to concentrate its study on the determin-
ation of the principles which govern the responsibility of States for internation-
ally wrongful acts, maintaining a strict distinction between this task and the task
of defining the rules that place obligations on States, the violation of which may
generate responsibility. Consideration of the various kinds of obligations placed
on States in international law and, in particular, a grading of such obligations
according to their importance to the international community, may have to be
treated as a necessary element in assessing the gravity of an internationally
wrongful act and as a criterion for determining the consequences it should have.
But this must not obscure the essential fact that it is one thing to define a rule
and the content of the obligation it imposes, and another to determine whether
that obligation has been violated and what should be the consequence of the
violation. Only the second aspect of the matter comes within the sphere of
responsibility proper . . .64

The source of the distinction between primary and secondary rules

within the terminology of state responsibility is unclear. Potential
sources include an adaptation of H. L. A. Hart’s famous distinction
between primary and secondary rules,65 continental jurisprudence,66 or
simply organic development within the ILC itself.
The distinction has had its critics. It has been said, for example, that
the ‘secondary’ rules are mere abstractions, of no practical use; that the
assumption of generally applicable secondary rules overlooks the possi-
bility that particular substantive rules, or substantive rules within a
particular field of international law, may generate their own specific

63 64
See David (2010). ILC Ybk 1970/II(2), 306.
65
Hart, The Concept of Law (2nd edn, 1994), 79–99; cf. Kelsen, General Theory of Law and State
(1945), 61 (‘law is the primary norm, which stipulates the sanction’).
66
See Ross, On Law and Justice (1958), 209–10; and generally Goldie, (1978) 12 IL 63.
 key concepts 65

secondary rules, and that the Articles themselves fail to apply the dis-
tinction consistently, thereby demonstrating its artificiality.67
On the other hand, it is far from clear what alternative principle of
organization could have been adopted, since the substantive rules of
international law, breach of which may give rise to state responsibility,
are innumerable and include substantive rules contained in treaties as
well as under general international law. Given rapid and continuous
developments in both custom and treaty, the corpus of primary rules
is, practically speaking, beyond the reach of codification, even if that
were desirable in principle.
The distinction between primary and secondary rules has a number of
advantages. It allows some general rules of responsibility to be restated
and developed without having to resolve a myriad of issues about the
content or application of particular rules the breach of which may give
rise to responsibility. Take, for example, the debate about whether state
responsibility can exist in the absence of damage or injury to another
state or states. If by damage or injury is meant economically assessable
damages, the answer is clearly that this is not always necessary. On the
other hand, in some situations there is no legal injury to another state
unless it has suffered material harm.68 The position varies, depending on
the substantive or primary rule in question. It is only necessary for the
ARSIWA to be drafted in such a way as to allow for the various possibil-
ities. A similar analysis would apply to the question whether some mens
rea or fault element is required to engage the responsibility of a state, or
whether state responsibility is ‘strict’ or even ‘absolute’, or depends
upon ‘due diligence’.
There remains a question whether the ARSIWA are sufficiently
responsive to the impact that particular primary rules may have. The
regime of state responsibility is, after all, not only general but also
residual. The issue arises particularly in relation to ARSIWA Article 55
concerning lex specialis.69
Finally, there is a question whether some of the articles do not go
beyond the statement of secondary rules to lay down particular primary

67
Special Rapporteur Riphagen remarked that the distinction, while methodologically
useful, ‘should not be carried so far as to dissimulate the essential unity of the structure
of international law as a whole’ (ILC Ybk 1981/II(1), 82 (§31); see further Bodansky and
Crook, (2002) 96 AJIL 773, 779–81; Caron, (2002) 96 AJIL 857, 870–2; David (2010).
68
See e.g. Lac Lanoux, (1957) 12 RIAA 281.
69
See ARSIWA Commentary, Art. 55; Bodansky and Crook (2002), 774–5; Caron (2002),
872–3; Simma and Pulkowski, in Crawford, Pellet and Olleson (2010) 139.
66 the framework of responsibility

rules. This was certainly true of the definition of ‘international crimes’

in the abandoned Draft Article 19. Another article which, it has been
suggested, infringes the distinction between primary and secondary
rules is ARSIWA Article 27(b), dealing with compensation in cases where
the responsibility of a particular state is precluded by one of the circum-
stances dealt with in Articles 20–25.70 On the other hand Article 27 is a
without prejudice clause, and does not specify the circumstances in
which such compensation may be payable. It can be argued that it
thereby usefully qualifies the ‘circumstances precluding wrongfulness’
in Articles 20–25 – although whether it is equally applicable to each of
those circumstances is an open question.

2.2.5.2 ‘Obligations erga omnes’ and related concepts

ARSIWA Article 48 makes 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, responsi-
bility may be invoked by states which are not themselves injured in the
sense of Article 42. The existence of these ‘communitarian norms’ – also
known as obligations erga omnes – was confirmed by the International
Court in the Barcelona Traction case, when it noted that with respect to
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.71
Comments of governments on obligations erga omnes varied consider-
ably during the second reading. France, for example, was generally
critical of the notion, while not denying that in special circumstances a
state could suffer legal injury merely by reason of the breach of a
commitment. However, it asserted that ‘in the case of a commitment
under a multilateral treaty, the supposedly injured State must establish
that it has suffered special material or moral damage other than that
resulting from a simple violation of a legal rule’.72 This apparently
denied the possibility of obligations erga omnes, whose very effect, pre-
sumably, is to establish a legal interest of all states in compliance with
certain norms. Germany, by contrast, saw in the clarification and elab-
oration of the concepts of obligations erga omnes and peremptory norms,

70
Formerly Draft Articles, Art. 35: see ILC Ybk 1998/II(1), 135 (comments by France).
71
Barcelona Traction, Light & Power Company, Limited (Spain v. Belgium), Second Phase, ICJ Rep.
1970 p. 3, 32. See further Chapter 11.
72
ILC Ybk 1998/II(1), 138–9.
 key concepts 67

in the field of state responsibility, a solution to the vexed problems

presented by Draft Article 19.73
The United States took an intermediate position, supporting the clari-
fication and in some respects the narrowing of the categories of ‘injured
State’ in Draft Article 40, especially in relation to breaches of multilat-
eral treaties, while accepting the notion of a general or community
interest in relation to defined categories of treaty (e.g. human rights
treaties). But it denied that injured states acting in the context of obliga-
tions erga omnes (or of an actio popularis) should have the right to claim
reparation as distinct from cessation.74 The United Kingdom likewise
raised issues of the definition of ‘injured state’ in the context of multi-
lateral treaty obligations. In particular it questioned the consistency of
Draft Article 40(2) with VCLT Article 60(2)(c), which allows the parties to
multilateral treaties to suspend the operation of the treaty in relation to
a defaulting state only if the treaty is of such a character that 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’.75
These views proved influential in developing a consensus model that is
reflected in the terms of ARSIWA Article 48. Under the terms of para-
graph (1), a non-injured state is permitted to invoke responsibility where
the breach complained of concerns (a) an obligation owed to a group of
states that includes the non-injured state, which is established for the
protection of a collective interest of the group; or (b) an obligation owed
to the international community as a whole (a communitarian norm or
obligation erga omnes). Under paragraph (2), however, the remedies avail-
able in such a situation are limited. The non-injured state may only claim
from the responsible state cessation of the internationally wrongful act
and assurances of non-repetition. It may not claim reparation, save in the
interest of an injured state or the beneficiaries of the obligation
breached.

2.3 Invocation and admissibility

2.3.1 Invocation of state responsibility: formal requirements
Although state responsibility in principle arises independently of any
claim by another state, if an interested party wishes to claim one of
the remedies available to it under Part Two, Chapters II and III of the
73 74 75
Ibid., 165. Ibid., 120–1. Ibid., 141–2.
68 the framework of responsibility

ARSIWA, it should register its interest. Responses may take a variety of

forms, from an unofficial and confidential reminder to fulfil the obliga-
tion in question to formal protests, consultations and so forth. An inter-
ested state with notice of the breach that does not so act may incur legal
consequences, including the eventual loss of the right to invoke state
responsibility by reason of waiver or extinctive prescription.76 But care
must be taken not to overly formalize the procedure for complaint, or to
imply that the normal consequence of the non-performance of the
obligation is the lodging of a statement of claim before a relevant court
or tribunal. In many cases, quiet diplomacy is the most effective method
of ensuring the performance of international obligations and even repar-
ation for breaches thereof.77 Nonetheless, an injured or otherwise inter-
ested state is entitled to respond to the breach, and the first step in this
respect should be to call the attention of the responsible state to the
situation and request that it take the appropriate steps to cease the
breach and provide appropriate redress.
In practice, claims for responsibility are raised at many different levels
of government, depending on their seriousness and on the general rela-
tions between the states concerned. Moreover, the International Court
has on occasion proved itself satisfied with rather more informal
methods of invocation.78 No doubt the precise form the claim takes will
depend on the circumstances, but ARSIWA Article 43 sets the basic
requirement that a state invoking responsibility must give notice thereof
to the responsible state. In so doing, it would be normal to specify what
conduct on its part is required by way of cessation of any continuing
wrongful act, and what form any reparation sought should take. In
addition, since the normal mode of interstate communication is writing,
it is appropriate that any notification of claim should also be in
writing,79 though this is not expressly required by Article 43.

2.3.2 Certain questions as to the admissibility of claims

If a state having protested at a breach is left unsatisfied by the response
(or lack of it) on the part of the responsible state, it is entitled to seek

76
See ARSIWA, Art. 45. See, for analogy, VCLT, Art. 65.
77
See further Waibel, in Crawford, Pellet and Olleson (2010) 1085.
78
See e.g. Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, ICJ
Rep. 1992 p. 240, 253–5, discussed in Chapter 17.
79
There are precedents for this: see e.g. VCLT, Arts. 23 (reservations, express acceptances of
reservations and objections to reservations ‘must be formulated in writing’), 67
(notification of invalidity, termination or withdrawal from a treaty must be in writing).
 key concepts 69

those measures of remedy – that is, cessation, assurance, reparation and

so on – provided in Part Two of the ARSIWA. Article 44, however, refers
to and preserves the effect of certain procedural barriers that may
preclude the claim from being brought. This flows from the need to
interact with the wider body of international law, and to display sensi-
tivity to individual circumstances attending each claim. It is important
to remember that these are not the only objections to admissibility that
might be raised, depending on the precise terms of the claim and the
court or tribunal before which the claim is brought. Article 44 states
that:

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 rem-
edies applies and any available and effective local remedy has
not been exhausted.
Thus two bases of inadmissibility are specifically contemplated:
nationality of claims and exhaustion

2.3.2.1 Nationality of claims

Nationality of claims owes much to the law on diplomatic protection.
A statement as to the modern position was that of the Permanent Court
in Mavrommatis:
It is an elementary principle of international law that a State is entitled to protect
its subjects, when injured by acts contrary to international law committed by
another State, from which they have been unable to obtain satisfaction through
the ordinary channels.80

Article 44(a) does not attempt a detailed elaboration of the nationality

of claims rule. It is content with only identifying the principle as applic-
able, leaving the detailed rules to the ILC Articles on Diplomatic Protec-
tion (considered in more detail in Chapter 18).

2.3.2.2 Exhaustion of local remedies

A similar position obtains in relation to the exhaustion of local remedies
rule contained in Article 44(b). The rule was described as ‘an important

80
Mavrommatis Palestine Concessions, (1924) PCIJ Ser. A No. 2, 12.
70 the framework of responsibility

principle of customary international law’ in the ELSI case.81 The Cham-

ber provided a succinct definition of the rule in the following terms:
[F]or an international claim to be admissible, it is sufficient if the essence of the
claim has been brought before the competent tribunals and pursued as far as
permitted by local law and procedures, and without success.82

Article 44(b) as formulated does not provide that state responsibility is

not incurred unless local remedies have been exhausted – that would be an
unacceptable conflation of primary and secondary rules;83 what it does
provide, however, is that no claim is admissible unless local remedies have
been so exhausted. Again, the content of the exhaustion of local remedies
rule is not elaborated within the terms of Article 44, and questions such as
whether the rule applies to injuries inflicted outside the territory of the
respondent state or to injuries inflicted in commercial or economic fields
(as a consequence of an acta iure gestionis), and indeed what amounts to
exhaustion, are left to the law of diplomatic protection (see Chapter 18).

2.3.2.3 Waiver84
ARSIWA Article 45(a) provides that the responsibility of a state may not be
invoked if the injured state has validly waived the claim. A waiver, simply
put, is the manifestation by a state of its intention to renounce a right or
claim. It is thus an expression of the basal principle of consent that runs
throughout international law.85 It is by no means confined to the field of
state responsibility, but extends to all types of rights or claims recognized
by international law, for example the right to invalidate, terminate or
suspend treaties under VCLT Article 45, the right of territorial sovereignty
(derelictio),86 and rights in the field of diplomatic and consular immunity.87

81
ELSI, ICJ Rep. 1989 p. 15, 42. See also Interhandel (Switzerland v. United States), Preliminary
Objections, ICJ Rep. 1959 p. 6, 27. On the rule generally, see Fawcett, (1954) 31 BYIL 452;
Mummery, (1964) 58 AJIL 389; Cançado Trindade, The Application of the Rule of Exhaustion
of Local Remedies in International Law (1983); Amerasinghe, Local Remedies in International
Law (2nd edn, 2004); Paulsson, Denial of Justice in International Law (2005); Crawford and
Grant, ‘Local remedies, exhaustion of’, (2007) MPEPIL.
82
ELSI, ICJ Rep. 1989 p. 15, 46.
83
E.g. the exhaustion of local remedies to the extent possible in the circumstances is a
substantive element of a denial of justice claim in international law and thus an aspect of
a primary rule: see further Paulsson (2005), ch. 5.
84
Generally: Feichtner, ‘Waiver’, (2006) MPEPIL; Tams, in Crawford, Pellet and Olleson
(2010) 1035, 1036–42.
85 86
ARSIWA Commentary, Art. 45, §2. Tams (2010), 1036–7.
87
Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95, Art. 32; Vienna
Convention on Consular Relations, 24 April 1963, 586 UNTS 262, Art. 45.
 key concepts 71

Although the early authorities were clear in stipulating that a waiver

to be effective must be express,88 the concept has evolved such that it is
now possible for a waiver to be identified via implication.89 For such an
implication to be drawn the actions of the injured state must, however,
be unequivocal.90 A rare example of an implied waiver occurred in the
Russian Indemnity case. There, the Russian embassy repeatedly demanded
from Turkey a certain sum (corresponding to the capital amount of a
loan) without any reference to interest or damages for delay. Turkey
having paid the amount requested, the tribunal held that Russian con-
duct amounted to the abandonment of any other claim arising from the
loan,91 thereby also demonstrating that a right may be waived in part.
International law has no requirements of form with respect to waiver:
the actors are ‘free to choose whatever form they please provided their
intention clearly results from it’.92 The doctrine is not, however, entirely
without restraint. In the first place (and self-evidently) a state is not
entitled to waive a right which it does not hold: nemo plus dare potest
quam ipse habet.93 By extension, even if an injured state elects to waive its
right to invoke state responsibility with respect to a breach of an obliga-
tion erga omnes, it cannot thereby prevent other states from bringing
claims under ARSIWA Article 48.94 Second, a waiver will only bind a
state if the conduct constituting the waiver is performed by a person who
or institution which is entitled to represent it. VCLT Article 7(2) provides
some guidance in this respect, listing as it does those persons who
possess ‘full powers’ and are thus capable of entering into a treaty on
behalf of a state.95 A state may also ratify the acts of a person or entity
after their commission, thereby ‘adopting’ the acts in question as the
state’s own.96

88
Certain Norwegian Loans (France v. Norway), Preliminary Objections, ICJ Rep. 1957 p. 9, 26
(‘abandonment . . . must be declared expressly’).
89
Phosphate Lands in Nauru, Preliminary Objections, ICJ Rep. 1992 p. 240, 248–59.
90
Armed Activities in the Territory of the Congo (DRC v. Uganda), ICJ Rep. 2005 p. 168, 266
(‘waivers or renunciations of claims or rights must either be express or unequivocally
implied from the conduct of the State alleged to have waived or renounced its right’).
91
Russian Indemnity (Russia v. Turkey), (1912) 11 RIAA 421, 446.
92
Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, ICJ Rep. 1961
p. 17, 31.
93 94
Tams (2010), 1039–41. ARSIWA Commentary, Art. 45, §4.
95
E.g. heads of state, heads of government, ministers of foreign affairs, heads of diplomatic
missions and other appropriately accredited representatives: Tams (2010), 1038–9.
96
VCLT, Art. 8; United States Diplomatic and Consular Staff in Iran (US v. Iran), ICJ Rep. 1980
p. 3, 74.
72 the framework of responsibility

Waiver is very often considered to be a unilateral act of state, and is

treated as such in the literature.97 This view is, however, inadequate,
particularly when considering the phenomenon of implied waiver.98
Very often a waiver can only be understood in terms of the interaction
between two parties within a factual matrix. In this, implied waiver
bears a close relationship to doctrines such as acquiescence and estoppel,
where the conduct of one party is received, processed and reinforced by
another until the intention of one party to waive a particular right –
affirmed incrementally through continued interaction – becomes
undeniable.

2.3.2.4 Acquiescence99
ARSIWA Article 45(b) provides that the responsibility of a state may not
be invoked where ‘the injured State is to be considered as having, by
reason of its conduct, validly acquiesced in the lapse of the claim’. Acqui-
escence or delay, like waiver, is a principle of international law likewise
based on the principle of consent. In essence, it reflects the notion that
inaction on the part of a state where some response is called for may lead
to the loss of a right or claim. In such a case silence is seen as reflecting an
implied consent: qui tactet consentire videtur si loqui debuisset ac potuisset.100
Again, the concept is not limited to the law of state responsibility:
the term originally emerged in the context of maritime delimitation,101
and has been adopted by the International Court in the context of terri-
torial disputes as well. In Pedra Branca Pulau Batu Puteh, it was said that:
Under certain circumstances, sovereignty over territory might pass as a result of
the failure of a State which has sovereignty to respond to conduct à titre de
souverain of the other State . . . Such manifestations of the display of sovereignty
may call for a response if they are not to be opposable to the State in question.
The absence of a reaction may well amount to acquiescence . . . That is to say,
silence may also speak, but only if the conduct of the other State calls for a
response.102

As mentioned, silence is generally considered to be characteristic of

acquiescence. But a failure to assert claims may also be inferred from
97 98
Tams (2010), 1037. Crawford, Third Report, 70–1.
99
Marques Antunes, ‘Acquiescence’, (2006) MPEPIL; Tams (2010), 1042–5.
100
Tams (2010), 1042–3.
101
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/US), ICJ Rep. 1984
p. 246, 305.
102
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/
Singapore), ICJ Rep. 2008 p. 12, 50–1.
 key concepts 73

certain active conduct which may be seen as reflective of passivity in the

context in which it occurs.103
When considering a situation of possible acquiescence, two further
considerations must be borne in mind. The first is that the passivity
giving rise to acquiescence must have continued for a certain period of
time. International law contains no hard and fast rule for the length of
time that must pass before acquiescence is deemed to have occurred: any
such conclusion must be driven by context.104 Thus in Banks of Grisba-
darna105 the time period in question was relatively short, while in
LaGrand Germany was held entitled to bring its claim despite the fact
that it had known of the United States’ illegal actions for a number of
years and failed to act until the last moment.106
The second consideration is that, in order to amount to acquiescence,
the inaction on the part of the injured state must have come about in
circumstances that called for some response. Again, such circumstances
are determined on a case-by-case basis, but if Temple is any criterion, it
would appear that the presentation of materials through intergovern-
mental channels which are clearly inconsistent with a right that the
receiving state wishes to assert will call for a response.107
Acquiescence bears a close resemblance to implied waiver: indeed, the
ARSIWA Commentary does not differentiate between them, and both are
reliant on an interactive paradigm of action and reaction. Likewise, VCLT
Article 45, on which ARSIWA Article 45 is itself based, draws no such
distinction, treating implied waiver as an aspect of the general concept of

103
Tams (2010), 1043. And see Temple, ICJ Rep. 1962 p. 6, 25, 30–1.
104
Phosphate Lands in Nauru, Preliminary Objections, ICJ Rep. 1992 p. 240, 253–4 (‘It is . . . for
the Court to determine in light of the circumstances of each case whether the passage of
time renders the application inadmissible’).
105
Banks of Grisbadarna (Norway v. Sweden), (1909) 11 RIAA 147, 161–2.
106
LaGrand (Germany v. US), ICJ Rep. 2001 p. 466, 486–7. The Court, however, implied that
any right of reparation had been affected by delay: ibid., 508.
107
In the Temple case, the position of the boundary between Thailand (Siam) and Cambodia
in the area around Preah Vihear on maps prepared by the French government did not
correspond to the watershed boundary established in the 1904 treaty. Thailand failed to
challenge this on receipt of the maps, and on several later occasions when it could have
been expected to raise an objection. The Court treated its subsequent passive conduct
and continued use of the maps without protest as acceptance of Cambodia’s sovereignty
over the Temple, which was shown clearly on the Cambodian side of the frontier: to
that extent at least, Thailand was precluded from relying on the earlier watershed line.
See ICJ Rep. 1962 p. 6. For the subsequent dispute over the extent of the Court’s finding
see Request for interpretation of the Judgment of 15 June 1962 in the Case Concerning the
Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), ICJ, pending,
2011.
74 the framework of responsibility

acquiescence, leading some commentators to remark that the ARSIWA’s

division is ‘unconvincing’.108
Acquiescence also bears some resemblance to the concept of estoppel
in international law.109 Estoppel, which is not mentioned in the
ARSIWA, is a mechanism borrowed from the common law. A party
who through an actual or implied representation has led another in good
faith to rely on that representation to its detriment will not be permitted
to depart from its initial representation.110 Whereas with acquiescence
the state concerned is taken to have relinquished a claim or right
through inaction, estoppel makes no such presumption: rather, the state
is precluded from alleging the contrary to what was represented.111 In
practical terms, the same facts may ground both a claim of estoppel and
acquiescence,112 but they are analytically distinct.

2.4 Diplomatic protection and its analogues

2.4.1 Public and private rights in international law
The ARSIWA are primarily concerned with the protection of public
rights and the observance of public obligations, that is, those conferred
or imposed on states by virtue of the rules of international law. But states
may also contract with natural or juridical persons, and thereby enter
into the world of private rights and obligations. To what extent, if any,
may these be protected under the rules of state responsibility?
Acts which affect private rights are as capable of commission by states
as those which affect public rights: the rules of attribution contained in
ARSIWA Part One, Chapter II do not function differently depending on
the character of the rights in question. Differences, however, arise in
relation to the applicable law as well as consequential questions of
enforceability. Private rights are not the ordinary subject matter of
disputes on the international plane, and cannot be elevated to that level
108
E.g. Tams (2010), 1044.
109
E.g. Gulf of Maine, ICJ Rep. 1984 p. 246, 304 (Canada, in argument, referring to estoppel
as ‘the alter ego of acquiescence’). Also Arbitral Award made by the King of Spain on 23
December 1906 (Honduras v. Nicaragua), ICJ Rep. 1960 p. 192, 206; cf. ibid., 219 (Judge
Spender), 221 (Judge ad hoc Urutia Holguin). Generally: Sinclair, in Lowe and
Fitzmaurice (eds.), Fifty Years of the International Court of Justice (1996) 104; Brownlie’s
Principles, Ch. 18.
110
Generally: Cottier and Müller, ‘Estoppel’, (2007) MPEPIL.
111
See Temple, ICJ Rep. 1962 p. 6, 62–3 (Judge Fitzmaurice); Gulf of Maine, ICJ Rep. 1984
p. 246, 305.
112
Thirlway, (1989) 60 BYIL 1, 29, 30.
 key concepts 75

absent some special mechanism that either converts a private right to a

public right capable of enforcement (as in the case of diplomatic protec-
tion) or directs the jurisdiction of some international court or tribunal to
the private right in question, usually by way of an applicable law clause
(as in the case of investor-state arbitration). In either case, the consent of
the state against which enforcement of the private right is sought is to
some extent required.

2.4.2 The institution of diplomatic protection113

As an institution, diplomatic protection has a long and not always happy
history. During the late nineteenth and early twentieth centuries, it
came to be associated with the imperialist project, being employed by
colonial states to protect their nationals engaged in trade or commerce in
the developing world. To take two examples, the Boer War (1899–1902)
was justified by Britain on the basis that gold mines owned by its
nationals in the Witwatersrand required protection;114 more widely,
the history of the Caribbean and Latin America is replete with instances
of US intervention in order to protect the interests of corporations such
as the United Fruit Company.115 On other occasions, however, demands
by states for compensation for injuries suffered by nationals were settled
via conciliation or arbitration. In time, it became accepted that diplo-
matic protection could only be enforced by peaceful means such as
negotiation or arbitration, and not by the use of force.116
Diplomatic protection is part of the law of state responsibility, but was
dealt with by the ILC as a separate project.117 Following the work of two
Special Rapporteurs, Mohamed Bennouna (Morocco) and John Dugard
(South Africa), the ILC adopted the Articles on Diplomatic Protection

113
See Chapter 18. See further Crawford, (2006) 31 S. Af. YIL 1; Amerasinghe, Diplomatic
Protection (2008); Dugard, ‘Diplomatic protection’, (2009) MPEPIL; Dugard, in Crawford,
Pellet and Olleson (2010) 1051.
114
See further Packenham, The Boer War (1979).
115
See further Langley, The Banana Wars (2nd edn, 2002). On the wider relevance of the
imperialist project to international law, see Anghie, Imperialism, Sovereignty and the
Making of International Law (2005).
116
ADP Commentary, Art. 1, §8: ‘the use of force . . . is not a permissible method for the
enforcement of the right of diplomatic protection’. This is consistent with the peaceful
settlement approach that has prevailed under international law since the conclusion of
the First Hague Convention for the Pacific Settlement of International Disputes, 1
Bevans 230, at the First Hague Conference on 29 July 1899; the pacific settlement
principle is now embodied in the UN Charter.
117
ARSIWA Commentary, Art. 44, §§2, 5.
76 the framework of responsibility

(ADP) in 2006.118 As with the ARSIWA, it was decided when diplomatic

protection was laid down as a topic in 1997 that the ILC would again
focus on the secondary or framework rules of the international law of
diplomatic protection and not on the substantive standards.119
ADP Article 1 provides:
[D]iplomatic 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.
Thus, under international law, a state is responsible for an injury to a
foreign national caused by that state’s wrongful act or omission. Diplo-
matic protection may provide a remedy to the aggrieved alien in such a
case, and represents a procedure by which the state of the nationality of
the alien may seek to redress the wrong inflicted by another state on its
citizen. Such protection extends to both natural and juridical persons.120
The right is not unrestricted, however, and is commonly attended by two
preconditions: the aggrieved individual must be a national of the state
bringing the claim121 and must already have exhausted to the extent
possible the local remedies available for redress of the wrong in the
responsible state.122 Both are included in ARSIWA Article 44, but the
ADP provide further elaboration of both.
A protecting state may claim by way of reparation the remedies of
restitution, compensation or satisfaction. A state may have recourse to
non-forcible countermeasures in order to enforce the terms of any
remedy. The ILC has affirmed that forcible countermeasures cannot be
employed by way of enforcement.123
A central question surrounding diplomatic protection is exactly whose
rights are being upheld in the making of a claim. The traditional view
derives from Vattel:
Whoever uses a citizen ill, indirectly offends the state, which is bound to protect
this citizen; and the sovereign of the latter should avenge his wrongs, punish the
aggressor, and, if possible, oblige him to make full reparation; since otherwise the
citizen would not attain the grand end of the civil association, which is safety.124

118 119
ILC Report 2006, UN Doc. A/61/10, §34ff. ILC Ybk 1997/I, 273.
120
See e.g. Nottebohm (Liechtenstein v. Guatemala), Second Phase, ICJ Rep. 1955 p. 4; Barcelona
Traction, Second Phase, ICJ Rep. 1970 p. 3; Elettronica Sicula SpA (ELSI) (US v. Italy), ICJ Rep.
1989 p. 15; Ahmadou Sadio Diallo (Guinea v. DRC), ICJ, Judgment of 30 November 2010.
121 122 123
Further Dugard (2010), 1053–61. Ibid., 1061–7. ILC Ybk 2000/II(2), 74–6.
124
Vattel (1758), Bk II, Ch. VI, §71 (298).
 key concepts 77

This position – that the state in making a claim for diplomatic protec-
tion is acting on its own behalf – was confirmed by the Permanent Court
in Mavrommatis:
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.125
In practice, when states bring proceedings on behalf of their nationals,
they seldom claim that they assert their own right but refer to the
injured individual as ‘the claimant’. In effect, by bringing a claim for
diplomatic protection, a state is enforcing the rights of the individual at
one remove. As noted by Dugard, logical inconsistencies in the trad-
itional doctrine, such as the requirement of continuous nationality, the
exhaustion of local remedies rule and the practice of fixing the quantum
of damage to loss suffered by the aggrieved national, lend support to this
view.126 However, although it may bring a claim in support of one of its
nationals, a state is under no obligation to do so, a point affirmed by the
International Court in the Barcelona Traction case.127 The ILC rejected the
proposal de lege ferenda that such a duty to act be included in the ADP as
going beyond the permissible limits of progressive development,
although it did include a recommendation in ADP Article 19 that a state
entitled to diplomatic protection should ‘give due consideration to the
possibility of exercising diplomatic protection, especially when a signifi-
cant injury has occurred’.128

2.4.3 Functional and other protection (by international organizations

or third states)129
2.4.3.1 International organizations
An analogue of diplomatic protection is functional protection, whereby
an international organization protects its agent in a manner resembling

125 126 127

(1924) PCIJ Ser. A No. 2, 12. Dugard (2010), 1052. ICJ Rep. 1970 p. 3, 44.
128
Even if the state is unwilling to act on behalf of its national in an ad hoc instance, an
investor may still seek compensation for injury via investor-state arbitration if the
necessary investment treaty superstructure is in place. On the relationship between
diplomatic protection and investment arbitration, see Amerasinghe (2008), ch. 17;
Douglas, The International Law of Investment Claims (2009); Douglas, in Crawford, Pellet
and Olleson (2010) 815.
129
Benlolo Carabot and Ubéda-Saillard, in Crawford, Pellet and Olleson (2010) 1073, 1083,
and see further Chapter 18.
78 the framework of responsibility

diplomatic protection.130 The basis for this in international law was

recognized by the International Court in Reparation for Injuries Suffered
in the Service of the United Nations,131 an opinion requested by the General
Assembly in the wake of the assassination of a UN envoy, Count Folke
Bernadotte, by Zionist extremists. The Court found that the United
Nations possessed international personality as an international organiza-
tion, and that agents should be able to count on the protection of the
organization in order to perform their duties properly.132 If an agent
were to suffer injury in the performance of his or her duties as a result of
an internationally wrongful act, the organization had standing to claim
against the responsible state.133
The doctrine as identified in Reparation for Injuries separates functional
protection from diplomatic protection. Functional protection is derived
intuitu personae: by virtue of its functions, an international organization
must be enabled to carry out its mission as set down in its constitutive
instrument.134 This may include the capacity to make claims on behalf
of their agents.135

2.4.3.2 Nationals of third states

During discussion of the ADP by the ILC, the point was made by Giorgio
Gaja (Italy) that states could also be concerned with functional protec-
tion, and employ non-nationals in a variety of fields, for example the
armed forces.136 Similar considerations apply to the crew of merchant
ships flying the flag of the claimant state.137 Although various mechan-
isms exist in international law whereby a state may protect a non-
national against the internationally wrongful act of another state,138 the

130
This was not excluded by the ADP, which provide in Art. 16 that:
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.
131
ICJ Rep. 1949 p. 174. See also Applicability of Article VI, Section 22, of the Convention of the
Privileges and Immunities of the United Nations, ICJ Rep. 1989 p. 177; Difference Related to
Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights, ICJ
Rep. 1999 p. 62.
132 133
Reparation for Injuries, ICJ Rep. 1949 p. 174, 183. Ibid., 187.
134
See generally Brownlie’s Principles, ch. 7.
135
E.g. Pescatore, (1961) 103 Hague Recueil 1, 219–21 (European Communities).
136
ILC Ybk 2002/I, 226. Non-nationals may also be found in the diplomatic corps of various
states.
137 138
ADP Commentary, Art. 18. Ibid., §2.
 key concepts 79

general position is that where those mechanisms or exceptions do not

apply, a state does not have the right to bring a claim under the rules of
diplomatic protection with respect to a non-national.139

2.5 Responsibility of non-state actors

2.5.1 Individual criminal responsibility
In principle, international law operates horizontally, that is, between
those entities recognized as possessing personality on the international
plane, such as states and international organizations. But certain
offences (e.g. genocide, war crimes, crimes against humanity, torture)
when committed by an individual will be considered as in direct viola-
tion of international law, and there are now international tribunals
capable of trying those who breach these norms.140
The starting point of this development was the trial at Nuremberg of
senior figures of the Nazi regime for heinous acts committed or directed
to be committed during the Second World War.141 Immediately after
judgment was handed down by the Nuremberg Tribunal, the UN General
Assembly passed a resolution142 affirming ‘the general principles of
international law recognized by . . . the judgment of the Tribunal’. The
ILC was subsequently asked to formulate these principles, completing
the task in 1950.143 Principle I stated that ‘[a]ny person who commits an
act which constitutes a crime under international law is responsible
therefor and liable to punishment’. The ILC was to return to this
principle in 1996 when commenting on its Draft Code of Crimes against
the Peace and Security of Mankind, stating:
The principle of individual responsibility and punishment of crimes under inter-
national law recognized at Nürnberg is the cornerstone of international criminal
law. This principle is the enduring legacy of the Charter and Judgment of the
Nürnberg Tribunal which gives meaning to the prohibition of crimes under

139
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, ICJ Rep.
1966 p. 6, 47.
140
Most notably the International Criminal Tribunal for the former Yugoslavia, the
International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the
International Criminal Court. For a survey see Brownlie’s Principles, ch. 30.
141
A second, lesser known trial was also undertaken for more junior members of the
regime: Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law
(2011).
142
GA Res. 95(I), 11 December 1946.
143
See the Principles of International Law recognized in the Charter of the Nürnberg
Tribunal and the Judgment of the Tribunal, with commentaries, ILC Ybk 1950/II, 374ff.
80 the framework of responsibility

international law by ensuring that the individuals who commit such crimes
incur responsibility and are liable to punishment.144

The principle of individual criminal responsibility under international

law was implemented in various treaties following the Nuremberg and
Tokyo war crimes tribunals. A key example of this is the Convention on
the Prevention and Punishment of the Crime of Genocide.145 Article IV
provides:
Persons committing genocide or any of the other acts enumerated in Article III
shall be punished, whether they are constitutionally responsible rulers, public
officials or private individuals.

Similarly, with respect to war crimes, the Geneva Conventions 1949146

provide for effective penal sanctions ‘for persons committing or ordering
to be committed, any of the grave breaches of the present Convention’
defined by the relative provisions.147 Additional Protocol II – which
applies to situations of internal armed conflict – similarly contemplates
individual criminal responsibility.148 With respect to torture, reference
may be made to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,149 which defines tor-
ture in Article 1 as ‘inflicted by or at the instigation of or with the
acquiescence of a public official acting in an official capacity’.

2.5.2 Corporate criminal responsibility

The development of a law of individual criminal responsibility in inter-
national law has not – or not yet – been paralleled by a regime of
corporate criminal responsibility.150 As indicated above, the various
international criminal law treaties deal exclusively with the criminal
responsibility of the individual. They make no attempt to solve the range
144 145
ILC Ybk 1996/II(2), 19. 9 December 1948, 78 UNTS 277.
146
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
287.
147
E.g. Geneva Convention I, Art. 49.
148
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS
609, esp. Art. 6(2)(b): ‘no one shall be convicted of an offence except on the basis of
individual penal responsibility’.
149 150
10 December 1084, 1465 UNTS 85. Cf. Clapham, (2008) 6 JICJ 899.
 key concepts 81

of legal issues that arise regarding attributing specific intent to corpor-

ations in the case of international crimes, let alone questions of the
applicable sanctions for corporations.151
In terms of state practice, no corporation has yet been prosecuted by
any municipal or international court or tribunal for any international
crime. In addition, none of the five major international criminal tribu-
nals established to date – the Tokyo and Nuremberg tribunals, the
International Criminal Tribunal for the former Yugoslavia (ICTY) and
the International Criminal Tribunal for Rwanda (ICTR), and the Inter-
national Criminal Court (ICC) – contemplate corporations as defendants.
The Charter of the Nuremberg Tribunal provided for the trial of persons
who ‘whether as individuals or as members of organizations’ committed
specific crimes.152 The Statutes of the ICTY153 and the ICTR154 similarly
provide only for jurisdiction over natural persons. As for the Inter-
national Criminal Court, the issue of corporate responsibility was con-
sidered by the drafters of the Rome Statute but ultimately abandoned
due to a divergence in state practice, as well as for want of time. As the
central international criminal instrument of the modern era, this omis-
sion is significant, demonstrating the absence so far of any accepted
rules or standards for corporate criminal responsibility under inter-
national law.155

2.5.3 International law claims against individuals and groups

A more recent addition to the discourse on international responsibility is
the possibility of civil claims against non-state actors. No manifestation
of this concept yet exists on the international plane. Rather, states
incorporate international law norms into their own legal systems,
thereby enabling the making of civil claims as an exercise of domestic
jurisdiction.

151
See e.g. Weigend, (2008) 6 JICJ 927, arguing that to impose corporate criminal liability
in the international sphere too hastily would be to change the specific character of
criminal law.
152
Agreement for the Prosecution and Punishment of Major War Criminals of the
European Axis, and Establishing the Charter of the International Military Tribunal,
8 August 1945, 82 UNTS 279, Art. 6.
153 154
SC Res. 827 (1993), Annex, Arts. 2–6. SC Res. 955 (1984), Annex, Arts. 2–5.
155
Saland, in Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues,
Negotiations, Results (1999) 189, 199; Ambos, (1999) 10 CLF 1, 7; Clapham, in Kamminga
and Zia-Ziarifi (eds.), Liability of Multinational Corporations under International Law (2001)
139, 195; Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda
and Sierra Leone (2006), 139–40. Cf. Kyriakakis, (2009) 56 NILR 333.
82 the framework of responsibility

An apparent exception is the Alien Tort Claims Act – also known as the
Alien Tort Statute (ATS) – of the United States.156 The ATS gives US federal
courts jurisdiction over cases where the applicable law is customary
international law where (a) the plaintiff is an alien, (b) the defendant is
responsible for a tort, and (c) the tort in question violates international
law, including customary international law.157 Since its ‘rediscovery’ in
the 1980s, the ATS has been extensively litigated, with some sizeable
settlements. To date, the claims pursued have related largely to human
rights abuses; courts have found that such norms include the prohibitions
of genocide and war crimes,158 torture159 and cruel, inhuman or degrad-
ing treatment,160 summary execution,161 disappearances,162 non-
consensual medical experimentation on children,163 and forced
labour.164 The Supreme Court in Sosa v. Alvarez-Machain,165 however,
narrowed the scope of those customary international law rules the breach
of which could found an action under the ATS to ‘norm[s] of an inter-
national character accepted by the civilized world’ that are ‘defined with a
specificity comparable to the features of the eighteenth-century para-
digms we have recognized’,166 being those norms with a definite content
and similar international acceptance to the rules extant at the time the
Act was passed (e.g. offences against ambassadors, violations of safe
conduct and piracy). In Sosa, the applicant failed in a claim based on ‘the
clear and universally recognized norm prohibiting arbitrary arrest and
detention’.167 The principles enunciated in Sosa were applied in Sarei v. Rio
Tinto, with the majority holding that the plaintiffs’ claims of genocide and
war crimes fell within the ATS, whereas claims alleging crimes against
humanity arising from a blockade and racial discrimination did not.168
156
28 USC §1350. Further: Seibert-Fohr, ‘Alien Tort Statute’, (2008) MPEPIL.
157
E.g. Sosa v. Alvarez-Machain, 542 US 692, 720 (2004) (‘[the ATS] furnished jurisdiction for
a relatively modest set of actions alleging violations of the law of nations’).
158
Kadić v. Karadžic´, 70 F.3d 232, 240 (2nd Cir., 1995).
159
Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir., 1996).
160
Xuncax v. Gramajo, 886 F.Supp. 162, 179 (D Mass., 1995).
161
In Re Estate of Ferdinand Marcos, 25 F.3d 1467, 1472 (9th Cir., 1994); Xuncax v. Gramajo,
886 F.Supp. 162, 179 (D Mass., 1995).
162
Forti v. Suarez-Mason, 694 F.Supp. 707, 720 (ND Cal., 1988).
163
Abdullahi v. Pfizer Inc., 562 F.3d 163, 176–77 (2nd Cir., 2009).
164
Doe v. Unocal, 395 F.3d 932, 957 (9th Cir., 2002).
165 166
542 US 692 (2004). Ibid., 725.
167
Alvarez had previously succeeded in making out this cause of action before the 9th
Circuit sitting en banc: 331 F.3d 604, 620 (9th Cir., 2003). For the Supreme Court
reasoning dismissing the identified norm as a cause of action: 542 US 692, 731–8 (2004).
168
(9th Cir., Docket No. 02-56256/02-56390/09-56381, 25 October 2011) slip op. 19332–3,
19358–80.
 key concepts 83

Although only foreign nationals may be ATS claimants, there is no

nationality requirement imposed on the defendant, and US nationals and
non-nationals alike may be sued under its provisions. High-profile cases
have been brought against high-ranking serving or former government
officials such as Ferdinand Marcos,169 Radovan Karadžic´170 and Robert
Mugabe.171
A more vexed question is its applicability to corporations. US com-
panies are named as defendants in most ATS cases, converting the
statute into a corporate social responsibility tool.172 But a determination
by the Supreme Court as to whether corporations can be held liable
under the ATS has not yet been made,173 and the question remains
unsettled and contentious.174

2.6 Responsibility and accountability

The definition of responsibility for the purpose of the ARSIWA is the
‘legal relations which arise under international law by reason of an
internationally wrongful act’.175 By contrast, the notion of accountabil-
ity is less clear. Indeed, there is no exact equivalent in other European
languages.176 Italian, Spanish and French ‘all need to borrow the English
word if they wish to indicate “la responsabilité des gouvernants devant le
peuple, au double sens de lui rendre compte et de tenir compte de lui”’.177 This
169
In Re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir., 1994).
170
Kadic v. Karadžic´, 70 F.3d 232 (2nd Cir., 1995).
171
Tachiona et al. v. Mugabe and ZANU-PF, 234 F.Supp. 2d 401 (SDNY, 2002).
172
E.g. Doe v. Unocal, 395 F.3d 932 (9th Cir., 2002)
173
Cf. Presbyterian Church of Sudan v. Talisman Energy Inc., 582 F.3d 244 (2nd Cir., 2009); Kiobel
v. Royal Dutch Petroleum, 621 F.3d 111 (2nd Cir., 2010) (cert granted); Sarei v. Rio Tinto (9th
Cir., Docket No. 02-56256/02-56390/09-56381, 25 October 2011) slip op.; cf. CPUSIL,
(2010) 104 AJIL 119. On 5 March 2012 the parties in the Kiobel proceedings were directed
to file supplemental briefs addressing the question whether and under what
circumstances the ATS allows courts to recognize a cause of action for violations of the
law of nations occurring within the territory of a sovereign other than the United
States; see 132 S Ct 1738 (2012); CPUSIL, (2012) 106 AJIL 382.
174
Kiobel v. Royal Dutch Petroleum, 621 F.3d 111, 148–9 (2nd Cir., 2010); cf. Paust, (2010–11)
51 Va JIL 977.
175
See ARSIWA Commentary, Art. 1.
176
Mulgan, (2000) 78 Public Administration 555, 555, citing Dubnick, in Sampford and
Preston (eds.), Public Sector Ethics (1998) 69.
177
Harlow, Accountability in the European Union (2002), 14, citing Avril, in Wahl and
Quermonne (eds.), La France presidentielle (1995) 65. Harlow makes the point that this
may explain the apparent lack of interest in the concept in institutional studies of the
EU (ibid., 14ff.); she concludes that the term ‘accountability’ ‘is not in use everywhere
and, when it is found, [it] is often an English import’ (ibid., 15).
84 the framework of responsibility

has not prevented the increasing use of the term in political and legal
discourse.178 It is increasingly used in international law, for example to
call for the accountability of international organizations or non-state
actors.179
In this wider sense it was addressed by an International Law Associ-
ation (ILA) Committee on Accountability of International Organizations:
the committee’s terms of reference included consideration of ‘what
measures (legal, administrative or otherwise) should be adopted to
ensure the accountability of public international organizations to their
members and to third parties, and of members and third parties to such
organizations’.180 In its Final Report, the committee noted that that, as a
matter of principle, accountability is linked to power and authority – it is
the duty to account for the exercise of power.181 It stated that account-
ability is a ‘multifaceted phenomenon’, and the form under which it
eventually arises will be determined by the circumstances surrounding
the relevant act or omission. The committee concluded that the account-
ability of international organizations consists of three interrelated and
mutually supportive levels:
[First level] the extent to which international Organizations, in the fulfilment of
their functions as established in their constituent instruments, are and should
be subject to, or should exercise, forms of internal and external scrutiny
and monitoring, irrespective of potential and subsequent liability and/or
responsibility;
[Second level] tortious liability for injurious consequences arising out of acts
or omissions not involving a breach of any rule of international and/or insti-
tutional law (e.g. environmental damage as a result of lawful nuclear or space
activities);
[Third level] responsibility arising out of acts or omissions which do constitute
a breach of a rule of international and/or institutional law (e.g. violations of
human rights or humanitarian law, breach of contract, gross negligence, or as
far as institutional law is concerned acts of organs which are ultra vires or violate
the law of employment relations).182

The notion of accountability is distinguishable from the notion of

responsibility in three ways. First, it is not limited to responsibility

178 179
Mulgan (2000), 555; Harlow (2002), 1. See Hafner, (2003) 97 ASIL Proc. 236, 236.
180
ILA, Committee on Accountability of International Organizations, First Report, Taipei
Conference (1998) 586.
181
ILA, Committee on Accountability of International Organizations, Final Report, Berlin
Conference (2004) 5.
182
Ibid.
 key concepts 85

towards other states under international law, but includes responsibility

towards an international organization’s staff as well as individual per-
sons, irrespective of the applicable law. Second, it embraces a more
extensive political understanding, that it is the duty to account, by
whatever means, for the exercise of power. Third, it includes primary
norms that can be termed norms of good governance, and incorporates
the concept of transparency in both the decision-making process and the
implementation of decisions.183
Although there has been a tendency to use the terms ‘accountability’
and ‘responsibility’ interchangeably, it is clear that responsibility is a
narrower concept, properly confined to the legal relations arising by
reason of an internationally wrongful act. Accountability, on the other
hand, includes wider forms of answerability (financial, political and
administrative).

2.7 The modern synthesis and its future

2.7.1 Governmental criticisms
Although the ARSIWA have been generally welcomed and widely
invoked, they have not escaped criticism. In the first place, certain
governments remain broadly opposed to the concept of multilateral
responsibility and as a consequence take issue with, inter alia, ARSIWA
Articles 40, 41, 48 and 53. This opposition previously manifested itself
with respect to the language of ‘international crimes of states’; some
governments consider the language of peremptory and communitarian
norms that emerged in 2001 to be little better: notably, Japan referred to
Article 41 as being ‘haunted by the ghost of “international crime”’ and
that the concept of ‘serious breaches of essential obligations to the
international community’ inserted in its place was ‘the equivalent of
“international crime” barely disguised’.184 A number of governments
called for the deletion of Articles 40 and 41 outright.185 Other states
were more accepting of the ILC’s change in direction, but expressed

183
There have been some steps towards greater accountability of international
organizations. For example, the World Bank Inspection Panel was set up to provide a
body competent to review, and if appropriate investigate, complaints against the Bank:
see IBRD Resolution No. 93-10 and IDA Resolution No. 93-6, The World Bank Inspection
Panel, 22 September 1993, 34 ILM 520; Further: Gowlland-Gualtieri, (2001) 72 BYIL 213.
184
ILC Ybk 2001/II(1), 67–8.
185
Namely France, Japan and the United States: ibid., 64–72.
86 the framework of responsibility

concern over the ambiguity of the new terminology.186 China’s com-

plaint is illustrative:
The revised text reflects major changes to the former article 19. The new text
replaces ‘State crimes’ with ‘serious breaches of essential obligations to the
international community’, thus circumventing the controversial concept of
State crimes. It also differentiates between varying degrees of gravity of an
internationally wrongful act. China appreciates this effort. However, some
fundamental questions still remain in the current text. For example, what is
‘an obligation owed to the international community as a whole and essential for
the protection of its fundamental interests’? To talk about the consequences
without a clear definition of the concept would very easily lead to controversy
in practice.187

However, the system had its share of supporters as well, notably

among the Nordic countries, which noted that, although the concept of
a state crime might be considered inappropriate, some division should be
recognized between an ‘ordinary’ breach of international law, and the
breach of those norms the violation of which is considered an affront
to the international community as a whole, that is, aggression and
genocide.188
In a related complaint, some states were alarmed by the content of
what would become ARSIWA Article 48. China raised the concern that it
would allow any State other than the injured State to invoke the responsibility
of another State, while [draft] article 54 would further allow such States to take
countermeasures at the request and on behalf of the injured State. These
provisions would obviously introduce elements akin to ‘collective sanctions’
or ‘collective intervention’ into the regime of State responsibility, broadening
the category of States entitled to take countermeasures, and establishing so-
called ‘collective countermeasures’. This would run counter to the basic
principle that countermeasures should and can only be taken by States injured
by an internationally wrongful act. More seriously, ‘collective countermeas-
ures’ could become only one more pretext for power politics in international
relations, for only powerful States or blocs of States are in a position to take
countermeasures against weaker States. Furthermore, ‘collective countermeas-
ures’ are inconsistent with the principle of proportionality enunciated in
article 52. The same countermeasures would become tougher when non-
injured States join in, leading to undesirable consequences greatly exceeding
the injury.189

186
Namely Austria, China, Mexico, the Netherlands, Slovakia, South Korea and the United
Kingdom: ibid.
187 188 189
Ibid., 67. Ibid., 64. Ibid., 79.
 key concepts 87

Similarly, France remarked:

On several occasions, France has defended the idea that what should distinguish
the injured State from the State having a legal interest is the fulfilment of the
obligation of reparation. The State which has only a legal interest can only
demand the cessation of the breach committed by another State. It cannot seek
reparation for the damage caused by the internationally wrongful act which has
not directly affected it, nor is there any reason for it to substitute itself for the
injured State in demanding the reparations owed to that State. Unlike the injured
State which can, by invoking the responsibility of the State which has committed
the wrongful act, seek reparation for the damage it has suffered, a State which
has a legal interest, can only demand the cessation of the internationally wrong-
ful act when invoking the responsibility of the State which has violated the
obligation.190

2.7.2 Scholarly criticisms

In an early but perceptive response, Caron191 criticized the ILC’s decision
to present its conclusions in the form of a treaty-like text – or more
particularly, a treatise written as though it were a treaty.192 Such an
approach (characteristic of most ILC work) ‘finesses the question of
whether – at any given moment – the ILC is codifying the law or
progressively developing it’.193 It provides the finished product with a
false sense of solidarity, while at the same time masking division and
debate within the Commission, which in the case of the ARSIWA played
out over four decades. Such an approach can create the mistaken impres-
sion that the work of the ILC is a source of law within the meaning of
Article 38(1) of the Statute of the International Court.194
Within the hierarchy of Article 38(1) of the Statute, the ARSIWA
represent a ‘subsidiary means for the determination of rules of law’. It
is evidence of the law and not a source. Thus the bare article must be read
in the light of the accompanying commentary, and preferably alongside
the preparatory work of the ILC such that the history of each provision
may be traced with precision: ‘indeed, what is required is to analyze,
perhaps even rewrite, the work of the ILC as though it were a narrative
study’.195 Caron concluded that the codification of the law of state
responsibility as a set of articles carried with it unavoidable risks; in its

190 191 192

Ibid., 80 n. 1. Caron (2002). Ibid., 868.
193
Ibid., 862. Also Ramcharan, The International Law Commission (1977), 104–5; Goswami,
Politics in Law Making (1986), 162.
194 195
Caron (2002), 867. Ibid.
88 the framework of responsibility

place he suggested an authoritative scholarly statement of the law that

could better reflect the topography of the field.196
Further scholarly complaints arose from those who supported the
earlier inclusion of ‘state crimes’ in the Draft Articles and therefore
opposed the amendment of Draft Article 19. Cassese levelled two objec-
tions at the regime which emerged in 2001,197 arguing that, notwith-
standing the language of ARSIWA Article 41, the Articles failed to
provide for a truly collective response to serious breaches of communi-
tarian norms, on which the individual response by each state was
made contingent. Second, he complained that the interplay of Articles
41 and 48
boils down to granting to all other States, in the case of very serious breaches of
obligations flowing from jus cogens, the normal rights accruing to any injured
State toward the responsible state . . . plus the [obligations contained in Article 41]
but minus the right to resort to countermeasures proper. The crucial point of
what measures other States could lawfully take to react to the gross breaches and
induce compliance with international law has been substantially left in
abeyance.198

More recently, criticism of the ARSIWA as such has tended to abate,

and attention has turned to the formulation of particular articles and
whether they reflect general international law.199 A significant episode
in that regard was the decision of the Appellate Body of the World Trade
Organization (WTO) in US – Antidumping and Countervailing Duties in 2011.
One question there was the interpretation of the phrase ‘public body’ as
it appeared in Article 1.1(a)(i) of the Subsidies and Countervailing Meas-
ures Agreement.200 At first instance, the Panel, in line with certain
submissions made by the United States, cast doubt on the reliability of
the ARSIWA. It said:
China significantly overstates the status that has been accorded to the Draft
Articles where they have been referred to by panels and the Appellate Body.
Indeed, in not a single instance of such citations identified by China has a panel
or the Appellate Body identified the Draft Articles as ‘relevant rules of

196
Caron (2002), 873:
To apply them correctly, decision makers must . . . consult the commentaries and
reports for each article, which illuminate the practice underlying the rule, the
discussions of the ILC, and the comments of various governments. Together these
sources bring life to the articles and reveal the degree of consensus.
197 198
Cassese, International Law (2nd edn, 2005), 269–71. Ibid., 271.
199
E.g. ARSIWA, Art. 16 (as to which see Chapter 12); Art. 25 (as to which see Chapter 9).
200
Agreement on Subsidies and Countervailing Measures, 14 April 1994, 1869 UNTS 14.
 key concepts 89

international law applicable in the relations between the parties’ in the sense of
Article 31(3)(c) of the Vienna Convention, such that they should be ‘taken into
account together with the context’ when interpreting the treaty. Rather, in our
view, the various citations to the Draft Articles have been as conceptual guidance
only to supplement or confirm, but not to replace, the analyses based on the
ordinary meaning, context and object and purpose of the relevant covered
Agreements.201

In this, as in certain other respects, the Appellate Body disagreed with

the Panel. It said:
We are puzzled by the Panel’s statement that the ILC Articles have been cited
by panels and the Appellate Body ‘as conceptual guidance only to supplement
or confirm, but not to replace, the analyses based on the ordinary meaning,
context and object and purpose of the relevant covered Agreements’. The Panel
elaborated that, while in some WTO disputes the ILC Articles ‘have been cited
as containing similar provisions to those in certain areas of the WTO Agree-
ment, in others they have been cited by way of contrast with the provisions of
the WTO Agreement, as a way to better understand the possible meaning of the
provisions of the WTO Agreement’. The Panel considered this to indicate that
panels and the Appellate Body have not considered the ILC Articles to consti-
tute rules of international law in the sense of Article 31(3)(c). To us, this
demonstrates the opposite. If, as the Panel states, certain ILC Articles have
been ‘cited as containing similar provisions to those in certain areas of the
WTO Agreement’ or ‘cited by way of contrast with the provisions of the
WTO Agreement’, this evinces that these ILC Articles have been ‘taken into
account’ in the sense of Article 31(3)(c) by panels and the Appellate Body in
these cases.202

The Appellate Body declined, however, to settle definitively ‘the ques-

tion of to what extent . . . the ILC Articles [reflect] customary inter-
national law’.203 But such questioning of the customary and/or
principled content of the ARSIWA is perfectly normal, and not at all to
be construed as an attack on their theoretical underpinnings. Although
the customary character of the ARSIWA is perhaps a priori heightened by
their origins in the work of the ILC, when all is said and done it is state
practice and opinio iuris that will confirm their continued relevance – and
to a large extent the ILC’s control over the future of the ARSIWA ended
with their adoption. The testing process undertaken by the Panel and
Appellate Body in US – Antidumping and Countervailing Duties is to be

201
US – Antidumping and Countervailing Duties, WT/DS379/R, 22 October 2010, §§8.87ff.
202
US – Antidumping and Countervailing Duties, WT/DS379/AB/R, 11 March 2011, §313.
203
Ibid., §311.
90 the framework of responsibility

welcomed – and, it should be said, to date this process has produced far
more victories than defeats for the customary character of the ARSIWA.

2.7.3 A convention on state responsibility?

The ILC’s practice in respect of other topics has been to make some
recommendation to the General Assembly on questions of form,
although these recommendations are not always accepted. In the case
of the ARSIWA, two alternative options were considered: a convention
on state responsibility and some form of endorsement or taking note of
the Articles by the General Assembly.
The advantage of a convention is that states would have full input into
the eventual text. The adoption of the Articles in the form of a multilat-
eral treaty would give them durability and authority. The ILC’s work on
the law of treaties, adopted as the Vienna Convention of 1969, has had a
stabilizing effect and exerts a strong continuing influence on customary
international law, irrespective of whether particular states are parties to
the Convention. Many members of the ILC, and a number of govern-
ments, considered that the lengthy and careful work of the ILC on state
responsibility merited reflection in a law-making treaty.
On the other hand, adoption of the Articles by the General Assembly
offers greater flexibility and would allow for a continued process of legal
development. States might well not see it as in their interests to ratify an
eventual treaty rather than relying on particular aspects of it as the
occasion arose. An unsuccessful convention might even have a ‘decodify-
ing’ effect. A more realistic and potentially more effective option would
be to rely on international courts and tribunals, on state practice and
doctrine to adopt and apply the rules in the text. Even before their
adoption in 2001, the International Court had already referred to the
Draft Articles on a number of occasions; so had other tribunals. Since
2001, the ARSIWA have been referred to more than 150 times by inter-
national and national courts and tribunals. This experience suggests that
the Articles will have long-term influence even if they do not take the
form of a convention.204
A more important issue than that of form, in the view of many
governments, was whether and how the substance of the text would be
reviewed and considered. A preparatory commission, as adopted for
204
This general view was expressed, for example, by Austria, China, Japan, the
Netherlands, the United Kingdom, the United States: UN Doc. A/CN.4/515. The
Netherlands affirmed that the result should not be expressed in any weaker form than a
General Assembly declaration: ibid.
 key concepts 91

example for the Draft Statute for an International Criminal Court, can be
extremely time-consuming. It is also less appropriate for a statement of
secondary rules of international law, abstracted from any specific field of
primary legal obligations but with wide-ranging and diffuse implica-
tions. A diplomatic conference, and the preparatory commission which
would necessarily precede it, might result in the repetition or renewal of
the discussion of complex issues and could endanger the balance of the
text found by the ILC.205 A less divisive approach would be for the
General Assembly simply to take note of the text and to commend it to
states and to international courts and tribunals, leaving its content to be
taken up in the normal processes of the application and development of
international law.206
Although this ‘modest’ approach attracted a considerable measure of
support, probably the dominant view was to prefer the process and form
of a law-making convention. Members taking this view stressed the
importance of the subject, the balance of the text, the very substantial
measure of support for it in the ILC and among governments, and the
need for dispute settlement in the field of state responsibility.207
Faced with this division of opinion, the ILC endorsed a two-stage
approach. In the first instance it recommended that the General
Assembly take note of and annex the Articles in a resolution, with
appropriate language emphasizing the importance of the subject. The
second phase could involve the further consideration of the question
at a later session of the General Assembly, after a suitable period for
reflection, with a view to the possible conversion of the Articles into a
convention, if this were thought appropriate and feasible. At this
second stage the General Assembly could consider whether and what
provisions for dispute settlement should be included in an eventual
convention.208
The matter has since been debated in the General Assembly on four
occasions, in 2001, 2004, 2007 and 2010.209 Resolutions were adopted on
all four occasions, as follows:

• GA resolution 56/83, 12 December 2001. The General

Assembly took note of the ARSIWA, the text of which it
annexed to the resolution, and ‘commend[ed] them to the

205
See the comments by the Austrian government, ibid.
206 207
Crawford, Fourth Report, 7. ILC Ybk 2001/II(2), 24–5.
208 209
ILC Ybk 2001/I, 67. Crawford and Olleson (2005) 54 ICLQ 959.
92 the framework of responsibility

attention of Governments without prejudice to the question of

their future adoption or other appropriate action’.210
• GA resolution 59/35, 2 December 2004. The General Assembly
requested governments to submit written comments on any
future action.211 It also commissioned a compilation of deci-
sions of international courts, tribunals and other bodies
referring to the ARSIWA.212
• GA resolution 62/61 of 6 December 2007. The General Assem-
bly specified that it would in 2010 ‘further examine, within
the framework of a working group of the Sixth Committee,
the question of a convention on responsibility of States for
internationally wrongful acts or other appropriate action on
the basis of the articles’.213
• GA resolution 65/19 of 6 December 2010. The General Assem-
bly acknowledged the importance of the ARSIWA,214 and
decided that it will, in 2013, ‘further examine, within the
framework of a working group of the Sixth Committee and
with a view to taking a decision, the question of a convention on
responsibility of States for internationally wrongful acts or
other appropriate action on the basis of the articles’.215
On balance, the better course of action remains either final adoption by
the General Assembly as a non-binding text,216 or the continued post-
ponement of any decision on the final form of the Articles until a later
date. At present the Articles are performing a constructive role in articu-
lating the secondary rules of responsibility. It may seem paradoxical that
this role can only be preserved by keeping the possibility of a convention
open while perpetually postponing a decision on the conclusion of such a
convention. But given the alternatives and the danger of the Sixth
Committee replicating the ILC’s forty years of work on the subject,
perhaps to lesser effect, this seems to be the only way forward. In the
meantime, the position of the Articles as part of the fabric of general
international law will continue to be consolidated and refined through
their application by international courts and tribunals.

210 211
GA Res. 56/83, 12 December 2001, §3. GA Res. 59/35, 2 December 2004, §2.
212 213
GA Res. 59/35, 2 December 2004, §3. GA Res. 62/61, 6 December 2007, §4.
214
GA Res. 65/19, 6 December 2010, §1.
215
GA Res. 65/19, 6 December 2010, §4 (emphasis added).
216
As in the case of the ILC Articles on Nationality of Natural Persons in relation to the
Succession of States of 1999: see GA Res. 66/489, 9 December 2011.
3 Corollaries of breach of an
international obligation

3.1 Introduction
ARSIWA Article 1 provides that international responsibility arises in
respect of internationally wrongful acts. Article 2 defines an internation-
ally wrongful act as occurring when conduct attributable to a state under
international law constitutes a breach of an international obligation of
the state. Article 12 provides that a breach of an international obligation
exists when an act of the state in question is not in conformity with what
is required of it by the obligation, regardless of its origin or character.
Thus the international law of obligations is central to the regime of state
responsibility – but the ARSIWA do not define ‘international obligation’
beyond the general terms of Article 12.1 Nor do the Articles attempt to
set out the content and scope of the international obligations breach of
which gives rise to responsibility: this is the function of primary rules,
whose codification would involve restating most of substantive custom-
ary and conventional international law.
The Articles thus ‘take the existence and content of the primary rules
of international law as they are at the relevant time; they provide the
framework for determining whether the consequent obligations of each
State have been breached, and with what legal consequences for other
States’.2 Moreover, they apply to the whole field of international obliga-
tions of states,3 whether the obligation is owed to one or several states, to

1
Note, however, that ARSIWA Commentary, Art. 2(b) is careful to specify that what
matters in considering a breach of an international obligation is not simply the existence
of a rule or norm of international law, but its application in the specific case to the
responsible state: ARSIWA Commentary, Art. 2, §13.
2
ARSIWA Commentary, General Commentary, §4.
3
It has long been established that international obligations could in principle be assumed
by states on any subject: see SS Wimbledon, (1923) PCIJ Ser. A No. 1, 25.

93
94 the framework of responsibility

an individual or group, or to the international community as a whole;

and regardless of whether the obligation is set out in a treaty, arises
under general international law, applies only locally or regionally, or is
the result of a unilateral commitment.

3.2 Breach of obligation and its corollaries

3.2.1 The components of a breach
ARSIWA Article 2, entitled ‘Elements of an internationally wrongful act
of a State’, provides:
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.

This is a basic, even axiomatic statement of the conditions of state

responsibility: it defines the general prerequisites for the responsibility
which Article 1 proclaims. Article 2 has the further role of structuring
the articles that follow. Chapter II deals with the requirement of attribu-
tion of conduct to the state under international law (see below, Chapters
4–6). Chapters III and V deal, so far as the secondary rules can do so, with
the breach of an international obligation, including general defences and
excuses (under the rubric of ‘circumstances precluding responsibility’)
(see below, Chapters 7–9). But responsibility can also arise for states
other than the primary actor, whether because the conduct is in some
sense collective or implicates others by way of complicity or, possibly,
state succession. Certain of these issues are dealt with in ARSIWA Part
One, Chapter IV; others, notably succession to responsibility, were not
covered by the ILC but are dealt with here for the sake of completeness
(see below, Chapters 10–13).

3.2.2 The substantive corollary: reparation

In accordance with the classical understanding of responsibility, as articu-
lated by Anzilotti and others (see above, Chapter 1), the automatic substan-
tive corollaries of responsibility are cessation (if the breach is continuing)
and reparation (see below, Chapters 14–16). Indeed, the Draft Articles on
first reading were largely confined to these issues: although there was a
substantial treatment of countermeasures, these were not considered as
part of any more general scheme of invocation and were therefore seen as
more ‘automatic’ than in truth they are, or should be.
 corollaries of breach of obligation 95

3.2.3 The procedural corollary: claim and countermeasure

For if these secondary rights and obligations arise by operation of law,
their implementation in practice is far from being automatic. In particu-
lar, implementation of responsibility requires invocation by way of a
claim made, whether by the injured state or possibly by other states – or
in the case of injury to individuals, by the victims themselves (if a forum
is available). Furthermore, in certain circumstances an injured state may
respond to a continuing or unremedied breach by taking countermeas-
ures. These general questions of implementation are dealt with in
ARSIWA Part Three (much of it introduced on second reading), and in
Chapters 17–21 below.

3.2.4 Dispute settlement in claims of responsibility

In this context something more should be said about dispute settlement
in matters of responsibility. Part Three of the Draft Articles included an
elaborate system for the settlement of disputes. This was unusual for an
ILC text, such matters normally being left to the Sixth Committee of the
General Assembly or a diplomatic conference. Part Three established a
hierarchical dispute settlement procedure referring disputing states first
to negotiation, then to conciliation, and finally to arbitration if the
parties agreed. Two annexes to the part set out the procedure for consti-
tuting a Conciliation Commission and an Arbitral Tribunal. However,
the intermediate steps of negotiation and conciliation could be bypassed
where the dispute arose between states parties, one of which had taken
countermeasures against the other. In such circumstances, the state
which was the target of the countermeasures was entitled at any time
unilaterally to submit the dispute to an arbitral tribunal. In this respect
only was arbitration compulsory.
Thus Part Three on first reading had two distinct functions. The first
was to provide for compulsory conciliation of disputes ‘regarding the
interpretation or application of the present articles’, followed by volun-
tary arbitration if the dispute was not thereby resolved. This was a ‘soft’
and supplemental form of dispute settlement, which, like interstate
conciliation generally, might be supposed in theory to work well but in
practice, in situations of deep conflict such as that generated by many
state responsibility disputes, was unlikely to work at all.4
4
Perhaps the two best examples of successful conciliation in the modern period are the
Iceland–Norway Jan Mayen Continental Shelf Delimitation case (for the Conciliation
Commission’s Report see (1981) 62 ILR 108, 27 RIAA 1, and the resulting Agreement
96 the framework of responsibility

The Draft Articles Commentary, while referring to Part Three as ‘the

general dispute settlement system’,5 failed to address the question
whether a dispute concerning the interpretation or application of the
primary obligations was covered by Part Three. Although it has
happened, for example in the LaGrand case,6 that the parties to a dispute
agree that there has been a breach of the primary obligation and disagree
only on the consequences, this is unusual. Disputes rarely concern only
remedies for a breach; they almost always include disputes about
whether there has been a breach in the first place, and what are the
elements of the breach. In that respect, for example, the Rainbow Warrior
arbitration7 or the Gabčı́kovo-Nagymaros case8 are more typical than
LaGrand: in these cases the question of remedies, that is, of secondary
obligations in the field of responsibility, was central to the dispute but
there was also a prior question, by no means trivial, whether there had
been a breach at all.
Thus, quite apart from the debatable value of compulsory conciliation
in practice, there was a key uncertainty with Part Three. Was a dispute
as to whether there had been a breach of a primary obligation not itself
focusing for example on attribution or on the existence of a circum-
stance precluding wrongfulness, one ‘regarding the interpretation or
application of the present articles’?9 If not, how could the conciliators
perform their function? For example, how could they propose the form
and amount of reparation due without determining whether there had

between Norway and Iceland on the Continental Shelf between Iceland and Jan Mayen, 22
October 1981, 2124 UNTS 247, incorporating the Commission’s recommendations),
which was in all but form a maritime boundary arbitration, and the Papal Mediation in
the Beagle Channel case (see the Proposal of the Mediator, Suggestions and Advice, (1980)
21 RIAA 243; the original award is at (1977) 21 RIAA 57), which occurred after an arbitral
award was rejected by one party. Neither concerned responsibility.
5
See Draft Articles Commentary, Art. 54, §1.
6
LaGrand (Germany v. US), Provisional Measures, ICJ Rep. 1999 p. 9; Merits, ICJ Rep. 2001
p. 466.
7
Rainbow Warrior (New Zealand/France), (1990) 20 RIAA 217.
8
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7.
9
The phrase ‘dispute concerning the interpretation or application’ of a treaty has been
given a broad interpretation. See, e.g., Mavrommatis Palestine Concessions, (1924) PCIJ Ser.
A No. 2, (1924) 16, 29; Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. US), Jurisdiction and Admissibility, ICJ Rep. 1984 p. 392, 427–8; Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Preliminary Objections, ICJ Rep. 1996 p. 595, 615–17; Oil Platforms (Iran v. US),
Preliminary Objection, ICJ Rep. p. 803, 820); Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK), Preliminary
Objections, ICJ Rep. 1998 p. 9, 18.
 corollaries of breach of obligation 97

been a breach, and in what respect? Even if the fundamental question

between the parties concerns, for example, whether a treaty has been
validly concluded or how it is to be interpreted – neither issue covered by
the ARSIWA – it would be necessary to answer those questions in order
to determine whether there had been conduct inconsistent with an
international obligation in force for the state concerned. The innocent
formula ‘dispute regarding the interpretation or application of the pres-
ent articles’ covered every dispute as to the existence of an internation-
ally wrongful act of a state or its consequences within the field of
responsibility, broadly conceived so as to cover cessation as well as
reparation. The aim of conciliation may have been modest; the scope of
the obligation to conciliate was not.
This became even more important having regard to the second func-
tion of Part Three, concerning countermeasures. Draft Article 58(2)
provided that:
In cases, however, where the dispute arises between States Parties to the present
articles, one of which has taken countermeasures against the other, the State
against which they are taken is entitled at any time unilaterally to submit the
dispute to an arbitral tribunal to be constituted in conformity with annex II to
the present articles.

The essential difficulty with this provision was that it privileged the
responsible state over the injured state. Compulsory arbitration was only
available where a ‘dispute arises between States Parties to the present
articles, one of which has taken countermeasures against the other’
(emphasis added). By definition countermeasures are measures taken
by an injured state against the state responsible for an internationally
wrongful act. Only the responsible state could trigger the arbitration,
and then only if the measures taken against it really did constitute
countermeasures. In other words, the effect was to give a unilateral right
to arbitrate not to the injured but to the responsible state. Such inequal-
ity as between the two states concerned could not be justified in
principle. It could even give an injured state an incentive to take coun-
termeasures, in order to induce the responsible state to resort to
arbitration.10
Initial consideration of the linkage between dispute settlement and
countermeasures by the ILC in 1999 led to two conclusions: first, that the
specific form of unilateral arbitration proposed in the Draft Articles

10
See Crawford, Second Report, 95.
98 the framework of responsibility

presented serious difficulties and, second, that the desirability of com-

pulsory dispute settlement had to be considered both for the injured
state and for the allegedly responsible state.11
In the end the central question was whether, assuming the Articles
would be adopted in the form of a convention, provision should be made
for compulsory dispute settlement, open to both (or all) states concerned.
Optional arbitration and non-binding forms of dispute settlement could
be discounted. It was unnecessary for the Articles to provide yet another
optional mechanism for the judicial settlement of disputes,12 and, as for
other forms of dispute settlement such as conciliation and inquiry, the
fact remains that, outside the context of maritime incidents, there has
been little recourse to these methods in resolving disputes over state
responsibility.13 Indeed, in the light of the development of compulsory
third-party dispute settlement in such major standard-setting treaties as
the United Nations Convention on the Law of the Sea and its associated
implementation agreements, the Marrakesh Agreement establishing the
World Trade Organization (WTO), and Protocol 11 to the European
Convention on Human Rights, providing only a ‘soft’ form of dispute
settlement in the Articles would have seemed a regressive step.
So far as government comments were concerned, while the import-
ance of peaceful settlement of disputes was stressed, few governments
sought to go further. Most took the view that general provisions for
compulsory dispute settlement could not realistically be included. Most
members of the ILC concurred in this view, and it was agreed that there
would be no provision in the Articles for dispute settlement machin-
ery.14 However, in its report to the General Assembly, the ILC drew
attention to the desirability of peaceful settlement in disputes concern-
ing state responsibility, leaving it to the General Assembly to consider

11
ILC Ybk 1999/II(2), 87–8. For government comments (largely hostile to compulsory
dispute settlement) see e.g. UN Doc. A/CN.4/488, 142–6; UN Doc. A/CN.4/513, §§19–21;
UN Doc. A/CN.4/515.
12
Apart from the Optional Clause and multilateral treaties providing for general recourse
to judicial settlement (e.g. American Treaty on Pacific Settlement, Bogotá, 30 April 1948,
30 UNTS 55; European Convention for the Peaceful Settlement of Disputes, 29 April
1957, 320 UNTS 243), reference may be made to the Permanent Court of Arbitration’s
Optional Rules for Arbitrating Disputes between Two States. No state lacks access to one
or more means of optional judicial settlement of disputes.
13
For commissions of inquiry into issues of responsibility for maritime incidents see the
Dogger Bank Report, 26 February 1905, (1908) 2 AJIL 931, and the Red Crusader Report,
(1962) 35 ILR 485.
14
ILC Ybk 2001/I, 67.
 corollaries of breach of obligation 99

whether dispute settlement provisions could be included in any eventual

convention on state responsibility.15

3.3 The applicable law in claims of responsibility

3.3.1 Overview
By its terms, the category ‘state responsibility’ covers the field of the
responsibility of states for internationally wrongful conduct, part of the
international law of obligations. But what is considered to be a breach of
international law by a state depends on the actual content of the obliga-
tions in question, which may vary markedly from one state to the next,
especially where treaties are concerned. Even under customary inter-
national law, obligations may vary, due to the operation of factors such
as bilateral16 or regional17 custom and (though rarely) the persistent
objector rule.18 But once the existence of an obligation is established, the
principles of state responsibility are generally applicable, absent a lex
specialis as envisaged in ARSIWA Article 55.19
State responsibility may only be engaged for breaches of international
law, that is, for conduct which is internationally wrongful because it
involves some breach of an international obligation applicable to and
binding on the state in question. Thus a dispute between two states

15
ILC Ybk 2001/II(2), 25. For the ultimate form of the ARSIWA, see Chapter 2.
16
E.g. Right of Passage over Indian Territory (Portugal v. India), ICJ Rep. 1960 p. 6, 39–43;
cf. 62–3 (Judge Wellington Koo); 82–4 (Judge Armand-Ugon, diss.); 110 (Judge Spender,
diss.). Also: Jurisdiction of the European Commission of the Danube, (1927) PCIJ Ser. B No. 14,
114 (Deputy-Judge Negulesco, diss.); Nottebohm (Liechtenstein v. Guatemala), Second Phase,
ICJ Rep. 1955 p. 4, 30 (Judge Klaestead, diss.).
17
E.g. the alleged regional custom of diplomatic asylum as practised in Latin America,
concerning the right of the embassies of other states to give asylum to political refugees:
Asylum (Columbia/Peru), ICJ Rep. 1950 p. 266, 276–8. Attempts to establish regional custom
have generally failed: e.g. Rights of Nationals of the United States of America in Morocco (France
v. US), ICJ Rep. 1952 p. 176, 199–200, citing Asylum, ICJ Rep. 1950 p. 266, 276–7;
Crawford, International Law as an Open System: Selected Essays (2002), 575.
18
The principle was recognized by both parties, and by the Court, in Fisheries (UK v. Norway),
ICJ Rep. 1951 p. 116, 131. Also: North Sea Continental Shelf (Federal Republic of Germany/
Netherlands; Federal Republic of Germany/Denmark), ICJ Rep. 1969 p. 3, 26–7, 131 (Judge
Ammoun); 235, 238 (Judge Lachs, diss.); 247 (Judge ad hoc Sørensen, diss.); Asylum, ICJ
Rep. 1950 p. 266, 277–8; and cf. the central finding of non-opposability of exclusive
fisheries zone claims in Fisheries Jurisdiction (UK v. Iceland), ICJ Rep. 1974 p. 3, 29–31.
19
E.g. those provisions of the WTO covered agreements excluding compensation for
breach and focusing on cession. Also (perhaps) Art. 41 (ex Art. 50) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950, 213 UNTS 221.
100 the framework of responsibility

arising from an alleged breach of international law – whether based in

treaty or custom – will concern state responsibility. This will be true
irrespective of whether the remedy sought is the cessation of continuing
unlawful conduct or reparation for a breach, or a mere declaration of
wrongdoing. On the other hand, not every claim made against a state
which touches on international law will invoke the rules of state responsi-
bility. For example, if litigation is commenced against a state in a muni-
cipal court on the basis of a purely commercial transaction, international
law will govern or at least be relevant to the state’s immunity (if any)
before the court and from ensuing measures of enforcement, but the
substantive claim will derive from the applicable law of the contract.20
Claims of responsibility were traditionally brought between states
through diplomatic channels or other direct communications, or before
an international court or tribunal. However, there is now the possibility
in some cases for individuals or corporations to access international
tribunals and bring state responsibility claims in their own right. The
two most prominent examples are claims for breach of regional human
rights treaties (such as the European Convention on Human Rights) and
claims for breach of an international investment agreement before an
arbitral tribunal established under that agreement.21 Subsequent
enforcement of these claims before municipal courts will depend on
the approach to international law of the domestic legal system in ques-
tion. It may, in certain circumstances, be possible to ‘domesticate’ claims
of responsibility. But complexities may arise when considering the rules
of jurisdiction and immunity, as well as the interface between inter-
national and municipal law.22

3.3.2 International law as the governing law

Some cases of responsibility are obviously international from their incep-
tion – for example cases involving the use of force between states, the
diversion of a river in alleged breach of an international watercourse treaty,
or infringements of diplomatic immunity. But many cases, especially in
fields such as human rights and investment protection, involve the concur-
rent application of international and national (i.e. internal) law. This was in
part the point of the exhaustion of local remedies rule, intended inter alia to
20
ARSIWA, Arts. 1, 3, 27. See also Elettronica Sicula SpA (ELSI) (US v. Italy), ICJ Rep. 1989 p. 15,
51; Vivendi Universal v. Argentina, First Annulment, (2002) 6 ICSID Reports 340, 365–8.
21
E.g. under the auspices of the Convention on the Settlement of Investment Disputes
between States and Nationals of Other States, 18 March 1965, 575 UNTS 159.
22
See the overview of these subjects in Brownlie’s Principles, chs. 3, 22.
 corollaries of breach of obligation 101

clarify the applicable local law and to give the courts of the state concerned
the opportunity to remedy any injury cognizable under that law.
On the other hand, once the case is raised to the international plane
(whether by the exhaustion or, as in most bilateral investment treaties,
the waiver of the local remedies rule), international law is and obviously
must be the governing law. It was established as long ago as the Alabama
arbitration that a state may not rely on its own law as an excuse for
failure to comply with its international obligations.23 This rule, codified
in Article 27 of the Vienna Convention on the Law of Treaties,24 is
rendered in ARSIWA Article 3 as follows:
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.

The characterization of conduct as lawful or not is an autonomous

function of international law. The long line of authorities supporting
this proposition is surveyed in the commentary: they include the
Wimbledon,25 the Reparations for Injuries opinion26 and the ELSI case.27
No government expressed any doubt as to the correctness of Article 3
as a matter of international law.28
But this does not mean that issues of ‘internal’ law are irrelevant to
responsibility. National law will often be relevant, whether because it is
incorporated by reference in the relevant international law rule, or
because it is part of the factual matrix of the dispute,29 or in rare cases
because a finding of a breach of national law is a prerequisite to a
determination of international responsibility.30
23
Alabama Arbitration (Great Britain, v. US) (1872), in Moore, 1 Int. Arb. 495, 656.
24
Art. 27 reads:
A party may not invoke the provisions of its internal law as justification for its
failure to perform a treaty. This rule is without prejudice to article 46.
23 May 1969, 1155 UNTS 331. Art. 46 concerns the validity of treaties concluded in
manifest breach of an internal rule of law ‘of fundamental importance’.
25
SS Wimbledon, (1923) PCIJ Ser. A No. 1, 29–30.
26
Reparation for Injuries Suffered in the Service of the United Nations, ICJ Rep. 1949 p. 174, 180.
27 28
ELSI, ICJ Rep. 1989 p. 15, 51, 74. See UN Doc. A/CN.4/488, 35.
29
E.g. ELSI, ICJ Rep. 1989 p. 15, where Italian law was highly relevant in determining
whether the requisition of a factory was ‘arbitrary’.
30
This is the case in claims alleging breach of an ‘umbrella clause’ in an investment treaty.
An umbrella clause contains a commitment by the host state to the effect that it will
comply with obligations entered into relating to covered investments, including
contractual obligations. See SGS Société Générale de Surveillance SA v. Philippines,
Jurisdiction, (2004) 8 ICSID Reports 515, 549–62; CMS Gas Transmission Company v.
102 the framework of responsibility

These points have particular relevance for investment arbitration,

given that the applicable law clauses of many investment treaties refer
to both national and international law. Notably, Article 42(1) of the
Convention on the Settlement of Investment Disputes between States
and Nationals of Other States31 provides that:

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.

Both of these systems of law must be applied by investment tribu-

nals, giving investment arbitration its so-called ‘hybrid’ character.32
This task is made possible in that each system of law plays a distinct
role. The law of the host state governs the transaction arrived at
between the investor and the host state (and, for example, determines
whether the rights that allegedly constitute the investment exist),
whereas the function of international law is to act as a review mech-
anism for the impugned transaction. The conduct of the host state
is assessed by reference to the standards set out in the investment
treaty.33
These issues were at the heart of the lengthy Vivendi dispute. The first
tribunal there incorrectly concluded that it did not have jurisdiction to
determine the legality of Argentina’s conduct under the investment
treaty, on the basis that the underlying contract had conferred exclusive
jurisdiction on Tucumán’s administrative tribunals concerning its ‘inter-
pretation and application’.34 As the annulment tribunal stated in par-
tially annulling the award,

In a case where the essential basis of a claim brought before an international

tribunal is a breach of contract, the tribunal will give effect to any valid choice of
forum clause in the contract . . . [W]here ‘the fundamental basis of the claim’ is a
treaty laying down an independent standard by which the conduct of the parties
is to be judged, the existence of an exclusive jurisdiction clause in a contract

Argentina, Annulment, (2007) 14 ICSID Reports 251, 268; Crawford, (2008) 24 Int. Arb.
351, 366–70.
31
18 March 1965, 575 UNTS 159.
32
See, generally, Douglas, (2003) 74 BYIL 151. See further Douglas (2009), ch. 2.
33
Douglas (2003), 211–3.
34
For the Tribunal’s decision see Vivendi Universal v. Argentina, First Award, (2000) 5 ICSID
Reports 299.
 corollaries of breach of obligation 103

between the claimant and the respondent state or one of its subdivisions cannot
operate as a bar to the application of the treaty standard . . . [I]t is one thing to
exercise contractual jurisdiction . . . and another to take into account the terms of
a contract in determining whether there has been a breach of a distinct standard
of international law.35

The claim was restated and a second award granting Vivendi damages
of US$105 million was ultimately upheld in a second decision on
annulment.36

3.3.3 The lex specialis principle and ‘self-contained regimes’

But if international law is the applicable law in matters of responsibility,
the question is which rules of international law – those articulated in the
ARSIWA or those expressed or to be implied in the treaty or other
instrument which is the source of the substantive obligation said to have
been breached? The ARSIWA are not, generally speaking, peremptory,
and treaties can and sometimes do provide for the conditions and conse-
quences of non-compliance in a way which overlaps with the potential
application of the ARSIWA. The question in such cases is whether the
specific provisions of the treaty were intended to be cumulative with or
exclusive of the ARSIWA.
These issues are dealt with by referring to the lex specialis principle,
articulated in ARSIWA Article 55 in the following terms:
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 inter-
national law.

35
Vivendi Universal v. Argentina, First Annulment, (2002) 6 ICSID Reports 340, 366–8. See
also Waste Management v. Mexico (No. 2), (2004) 11 ICSID Reports 362, 378–9:
NAFTA Chapter 11 does not give jurisdiction in respect of breaches of investment
contracts such as the Concession Agreement. Nor does it contain an ‘umbrella
clause’ committing the host State to comply with its contractual commitments.
This does not mean that the Tribunal lacks jurisdiction to take note of or
interpret the contract. But such jurisdiction is incidental in character, and it is
always necessary for a claimant to assert as its cause of action a claim founded in
one of the substantive provisions of NAFTA referred to in Articles 1116 and 1117.
Furthermore, while conduct (e.g. an expropriation) may at the same time involve
a breach of NAFTA standards and a breach of contract, the two categories are
distinct.
36
Vivendi Universal v. Argentina, ICSID Case ARB/97/3, Second Award, 20 August 2007;
Vivendi Universal v. Argentina, ICSID Case ARB/97/3, Second Annulment, 10 August 2010.
104 the framework of responsibility

The first reading equivalent had applied only to Part Two of the Draft
Articles,37 whereas Article 55 applies to the whole text; the phrase ‘the
conditions for the existence of an internationally wrongful act or the
content or implementation of the international responsibility of a State’
is a succinct summary of the content of the ARSIWA as a whole.
Government comments on the lex specialis principle were uniformly
supportive,38 not only in relation to Part Two of the Articles but gener-
ally.39 Switzerland raised the question of the relation between lex specialis
and Article 60 of the Vienna Convention on the Law of Treaties, dealing
with termination of a treaty for material breach: Article 60 was not lex
specialis in relation to issues of responsibility.40
As noted, treaties often make specific provision for the legal conse-
quences of breaches of particular provisions. The question whether those
consequences are exclusive – in other words, whether the consequences
which would otherwise apply under general international law are
thereby excluded – is a question of interpretation in each case, which
no generic provision such as Article 55 can prejudge. In some cases it will
be clear from the language that only the consequences specified flow. In
other cases, one aspect of the general law may be modified, leaving other
aspects still applicable. An example of the former is the WTO Dispute
Settlement Understanding as it relates to remedies.41 An example of the

37
Draft Art. 37 on first reading read:
The provisions of this part do not apply where and to the extent that the legal
consequences of an internationally wrongful act of a State have been determined
by other rules of international law relating specifically to that act.
38
See the discussion held in the Sixth Committee in which ‘the remark was made that the
draft should continue to respect lex specialis’ (UN Doc. A/CN.4/496, 20). The Sixth
Committee noted that specific treaty regimes providing their own framework for
the responsibility of states would ordinarily prevail over the provisions of the draft
articles (regardless of their eventual form) (ibid.). Likewise, at its fifty-fourth session it
was noted that the draft articles ‘would not apply to self-contained legal regimes, such as
those on the environment, human rights and international trade, which had been
developed in recent years’ (UN Doc. A/CN.4/504, 9).
39
See comments by Germany (UN Doc. A/CN.4/488, 33), the United States (ibid., 84), the United
Kingdom (ibid., 28) and Japan (UN Doc. A/CN.4/492, 12). See also the observation made in
the Sixth Committee that ‘the Commission should draft the articles on the assumption that
the rule of lex specialis should be transformed into a general principle’ (ibid., 20).
40
The discussion in the Sixth Committee also stressed the importance of respecting the
‘parallelism between the law of treaties and the law of international responsibility, while
making clear the complementarity of the draft articles with the Vienna Convention’ (UN
Doc. A/CN.4/496, 20).
41
Marrakesh Agreement establishing the World Trade Organization, 15 April 1994, 1867
UNTS 3, Annex 2: Understanding on the Rules and Procedures Governing the Settlement
of Disputes, Art. 3(7); Gomula, in Crawford, Pellet and Olleson (2010) 791, 797.
 corollaries of breach of obligation 105

latter is Article 41 (formerly 50) of the European Convention on Human

Rights.42 Both concern matters dealt with in Part Two of ARSIWA, but
the same considerations apply, in principle, to Parts One and Three. Thus
a particular treaty might impose obligations on a state but define the
‘state’ for that purpose in a way which produced different consequences
than would otherwise flow from the rules of attribution in Chapter II of
Part One.43
There are always issues on which treaty regimes remain silent. For
example, often the existence of any right to take countermeasures is not
explicitly addressed.44 Are such lacunae to be interpreted as intentional
deviations from the general regime of state responsibility or as gaps that
need to be filled by that general regime? Treaties rarely answer this
question in an unequivocal fashion. Simma and Pulkowski, citing the work
of the ILC on fragmentation,45 suggest that the answer is reached by asking
whether ‘a fallback on general international law is expedient to serve the
purposes of the special regime’.46 This seems uncontroversial. Such an
approach is dictated by the requirement that a treaty be interpreted in the
light of its object and purpose.47 It also recognizes that the issue cannot be
avoided merely by labelling a treaty regime as ‘self-contained’.48
42
European Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950, 213 UNTS 221.
43
Cf. ‘federal’ clauses in treaties, allowing certain component units of the state to be
excluded from the scope of the treaty (e.g. the Convention on the Settlement of
Investment Disputes between States and Nationals of Other States, 18 March 1965, 575
UNTS 159, Arts. 70, 72), or limiting obligations with respect to such units (e.g. UNESCO
Convention for the Protection of the World Cultural and Natural Heritage, 16 November
1972, 1037 UNTS 151, Art. 34).
44
See Simma and Pulkowski (2010), 149–62, for a discussion of the circumstances in which
a resort to countermeasures could be considered permissible under diplomatic law, the
European Community legal system, the WTO system and human rights treaties. See also
ILC Study Group on Fragmentation of International Law, ‘Fragmentation of
International Law: Difficulties Arising from the Diversification and Expansion of
International Law’, 13 April 2006, UN Doc. A/CN.4/L.682, §190. On countermeasures
generally, see Chapter 21.
45
‘[I]f 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’: ‘Fragmentation of
International Law: Difficulties Arising from the Diversification and Expansion of
International Law’, 13 April 2006, UN Doc. A/CN.4/L.682, §137.
46
Simma and Pulkowski (2010), 148.
47
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Art. 31(1).
48
‘Fragmentation of International Law: Difficulties Arising from the Diversification and
Expansion of International Law’, 13 April 2006, UN Doc. A/CN.4/L.682, §172: ‘None of the
treaty-regimes in existence today is self-contained in the sense that the application of
general international law would be generally excluded’. See also, Crawford, Third
106 the framework of responsibility

3.3.4 Claims of responsibility arising under peremptory norms

The Czech Republic raised the relationship between the lex specialis
principle and ‘crimes’ as dealt with in Draft Article 19, suggesting that
‘the provisions of part two, when they deal with the regime applicable to
“crimes”, are no longer simply residual in character’.49 In its view, if the
primary obligation breached arises under a peremptory norm, the
applicable secondary rules ‘must also be peremptory in nature, with no
possibility of derogating from them by means of an agreement inter
partes’.50
The observation raises the broader question of claims of responsibility
for breach of peremptory norms. This is dealt with in Chapter 11. To
summarize the discussion there, Article 41 of the ARSIWA specifies
three consequences which flow in the event of a ‘serious’ breach of a
peremptory norm, defined as a breach involving ‘a gross or systematic
failure by the responsible state to fulfil the obligation’.51 In such a
situation, states are obliged: to co-operate to bring the breach to an
end, not to recognize the situation created as lawful, and to render no
aid or assistance to maintain that situation.

3.3.5 State responsibility and the United Nations Charter

The UN Charter is the primary world order treaty of the modern inter-
national system. Unlike the League of Nations Covenant, its relation to
general international law is indirect.52 Whereas the preamble of the
League Covenant referred to the establishment of international peace
and security by means of ‘the firm establishment of the understandings
of international law as the actual rule of conduct among Governments’
and by ‘a scrupulous respect for all treaty obligations’, the preamble to
the Charter records a determination ‘to establish conditions under
which justice and respect for the obligations arising from treaties and
other sources of international law can be maintained’. Whereas the
Covenant emphasized in its central Articles 12, 13 and 15 the imperative
of arbitration or inquiry in the settlement of disputes and the primacy of

Report, 50: ‘there is a presumption against the creation of wholly self-contained regimes
in the field of reparation’.
49 50 51
UN Doc. A/CN.4/488, 92. Ibid. ARSIWA, Art. 40(2).
52
On the relationship between the Security Council and international law see, for example,
Frowein and Krisch, in Simma (ed.), 1 The Charter of the United Nations: A Commentary (2nd
edn, 2002) 701, 710–2; Gowlland-Debbas, in Crawford, Pellet and Olleson (2010) 115,
126–38; Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems
(1951), 293–5, 729–30, 735–6; Crawford (2002), International Law, 123–7.
 corollaries of breach of obligation 107

international law in determining the domestic jurisdiction of states

(Article 15(8)), the Charter disjoins domestic jurisdiction from inter-
national law (Article 2(7), first sentence), allows the Security Council to
take enforcement action in matters of domestic jurisdiction (Article 2(7),
second sentence), and generally treats international law merely as a
desideratum, not a ‘rule of conduct’ (Articles 24(2), 25, 36(3), 103).
This contrast notwithstanding, the Security Council has quite often made
findings of responsibility, and has sometimes taken Chapter VII action on
the basis of such findings. A notable instance of this was the finding of
Iraq’s responsibility for the invasion of Kuwait in 1991, on the basis of
which the United Nations Compensation Commission was established.53
It was accordingly seen as necessary to regulate in the Draft Articles
adopted on first reading the relations between the Charter and the
general regime of state responsibility. Draft Article 39 provided:
Relationship to the Charter of the United Nations
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
procedure of the Charter of the United Nations relating to the maintenance of
international peace and security.
This provision, adopted under Special Rapporteur Riphagen,54 was the
subject of much criticism by his successor, Arangio-Ruiz,55 as well as,
from differing points of view, within the ILC itself.56 Government com-
ments on Draft Article 39 were likewise somewhat mixed. A number of
states seemed to view as unproblematic the precedence given by the
draft article to the Charter mechanism for the maintenance of inter-
national peace and security over the provisions of Part Two.57 The United
States, for instance, agreed with ‘the objective of the draft article in
emphasizing that the Charter’s allocation of responsibility for the main-
tenance of peace and security rests with the Security Council, and that an
53 54
See SC Res. 687 (1991), and see further Chapter 19. ILC Ybk 1983/II(2), 43.
55
Arangio-Ruiz, (1998) 81 RDI 110; Arangio-Ruiz, (2000) 83 RDI 1. See also ILC Ybk 1996/I,
137–9.
56
For the debate see ILC Ybk 1996/I, 139–42.
57
See comments of the Czech Republic (discussing responses to ‘international crimes’ and
noting that ‘in the field of the maintenance of international peace and security . . . there
is in fact already a specific mechanism, which is appropriately covered by draft article
39’ (UN Doc. A/CN.4/488, 94)), Mongolia (emphasizing that the text ‘should take into full
account the current situation concerning the measures which the United Nations is
taking under Chapter VII of its Charter (ibid.)) and Japan (‘It is evident that under such
provisions as Article 103 of the Charter of the United Nations and article 39 of the draft
articles, the Charter of the United Nations has precedence over the draft articles’ (UN
Doc. A/CN.4/492, 13).
108 the framework of responsibility

act of a State, properly undertaken pursuant to a Chapter VII decision of

the Security Council cannot be characterized as an internationally
wrongful act’.58 In its view, Article 103 ‘not only establishes the pre-
eminence of the Charter, but makes it clear that subsequent agreements
may not impose contradictory obligations on States’. Thus, ‘the draft
articles would not derogate from the responsibility of the Security Coun-
cil to maintain or restore international peace and security’.59 France, on
the other hand, was concerned that Draft Article 39 ‘appears to run
counter to Article 103 of the Charter of the United Nations, which makes
no distinction between the provisions of the Charter’ and suggested that
it would ‘have the effect of restricting the prerogatives of the Security
Council’. It would be preferable to state that the provisions of the Draft
Articles do not impair the provisions and procedures of the Charter of
the United Nations, in accordance with Article 103.60 The United King-
dom, though supporting the principle of pre-eminence of the Charter
reflected in Article 103, opposed addressing the question in the Draft
Articles. In its view, this question ‘raises complex issues, which concern
not only the United Nations but also other international and regional
organizations which may be acting in conjunction with the United
Nations or in roles assigned to them under the Charter’.61
The ILC decided to retain the provision, redrafted, in ARSIWA Part
Four. It dropped the suggestive phrase ‘where appropriate’ and the
express reference to Chapter VII. Since Article 103 of the Charter is
comprehensive and categorical, it concluded that its effect, whatever it
might be, could be reserved in a simple provision.62 Accordingly ARSIWA
Article 59 provides as follows:
Charter of the United Nations
These articles are without prejudice to the Charter of the United Nations.

3.3.6 Other legal consequences of internationally wrongful acts

ARSIWA Article 56 provides:
The applicable rules of international law continue to govern questions concern-
ing the responsibility of a State for an internationally wrongful act to the extent
that they are not regulated by these articles.

58
UN Doc. A/CN.4/488, 95.
59
Ibid. The United States further noted that ‘State responsibility provisions may inform
the Security Council’s decision-making, but the draft articles would not govern its
decisions.’
60 61 62
Ibid., 94. Ibid., 95. Crawford, Third Report, 110–11; ILC Ybk 2000/II(2), 64.
 corollaries of breach of obligation 109

This implies that there may be other – unspecified – legal conse-

quences of an internationally wrongful act (apart from those provided
for in any applicable lex specialis): the question is what they might be. Of
course, one consequence of an internationally wrongful act might be the
termination of the obligation violated, for example, in case of a ‘material
breach’ of a bilateral treaty pursuant to Article 60(1) of the Vienna
Convention on the Law of Treaties. But this has nothing to do with
responsibility.
Another possibility is that the principle of law expressed in the maxim
ex iniuria ius non oritur may generate new legal consequences in a given
case of responsibility, consequences which would not be specific or
explicit enough to be covered by the lex specialis exception. A possible
candidate is the so-called principle of ‘approximate application’, formu-
lated by Judge Sir Hersch Lauterpacht in the Advisory Opinion concern-
ing Hearing of Petitioners. He said:
It is a sound principle of law that whenever a legal instrument of continuing
validity cannot be applied literally owing to the conduct of one of the parties, it
must, without allowing that party to take advantage of its own conduct, be
applied in a way approximating most closely to its primary object. To do that is
to interpret and to give effect to the instrument – not to change it.63

In the Gabčı́kovo-Nagymaros case, Slovakia relied on this dictum to

justify its diversion of the Danube (‘Variant C’). The Court held it was
not necessary
to determine whether there is a principle of international law or a general
principle of law of ‘approximate application’ because, even if such a principle
existed, it could by definition only be employed within the limits of the treaty in
question.64

That ‘cardinal condition’ was not met, in the Court’s view, in the
circumstances of that case. Moreover, its treatment of the question
suggests that this is less an autonomous principle of law than a conclu-
sion generated, within the field of the performance of treaties, by the
general principle of law that a state may not rely on the consequences of
its own unlawful conduct. As such, there was no need to include it in the
ARSIWA. But it is an illustration of the potential of general principles of

63
Admissibility of Hearings of Petitioners by the Committee on South West Africa, ICJ Rep. 1956
p. 23, 46 (Sir Hersch Lauterpacht). For discussion see Rosenne, Breach of Treaty (1985),
96–101.
64
ICJ Rep. 1997 p. 7, 53.
110 the framework of responsibility

international law to generate novel consequences in the field of the

performance of legal obligations.
Within the field of state responsibility, there seem to be no general
legal consequences of the commission of an internationally wrongful act
other than those referred to in ARSIWA Parts Two and Three – namely,
cessation, restitution, compensation, satisfaction and the possible liabil-
ity to countermeasures in the event that a state fails to comply with
these secondary obligations. Nonetheless, the ILC decided to include a
saving clause in terms of Article 56.65

65
For the Special Rapporteur’s scepticism as to the need for such a provision see Crawford,
Third Report, 24–5.
Part II
Attribution to the state
4 Organs and entities exercising
governmental authority

4.1 General principles of attribution

A state is a corporate entity and as such cannot carry out its functions
and activities without the intermediate involvement of others.1 ‘Attribu-
tion’2 is the process by which international law establishes whether the
conduct of a natural person or other such intermediary can be con-
sidered an ‘act of state’, and thus be capable of giving rise to state
responsibility.3 Attribution is thus a basal concept of the law of state
responsibility and an essential condition for its operation.

4.1.1 The process of attribution and its discontents

The process of attribution as stated in ARSIWA Article 2 reflects a concep-
tion of attribution that is essentially normative.4 As the commentary notes,
1
See e.g. Kelsen, The Pure Theory of Law (2nd edn, 1960; trans. Knight 1967), 290–312. Also
German Settlers in Poland, (1923) PCIJ Ser. B No. 6, 22: ‘States can only act by and through
their agents and representatives.’
2
Earlier writers (notably Special Rapporteur Ago, following Anzilotti) tended to prefer the term
‘imputation’ or ‘imputability’ in expressing this concept: e.g. Starke, (1938) 19 BYIL 104; ILC
Ybk 1970/II, 187–9. The International Court in some later decisions (with then-Judge Ago
forming part of the majority) also adopted the term: United States Diplomatic and Consular Staff in
Tehran (US v. Iran), ICJ Rep. 1980 p. 3, 29; Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. US), ICJ Rep. 1986 p. 14, 51. The ILC, however, preferred the term
‘attribution’ to avoid any suggestion that the legal process of connecting conduct to the
state was a ‘fiction’: ILC Ybk 1971/II(1), 214; Brownlie (1983), 36–7. Accordingly, ‘attribution’
was the preferred term in the Draft Articles on first reading, and was retained during the
second: Crawford, First Report, 33. It has since been consistently adopted by the International
Court: see e.g. Armed Activities in the Territory of the Congo (DRC v. Uganda), ICJ Rep. 2005 p. 168,
223, 226, 232, 242; Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 202–11.
3
ARSIWA Commentary, Pt I, Ch. II, §2. Also Starke (1938), 105; Brownlie (1983), 132–3;
Condorelli and Kreß, in Crawford, Pellet and Olleson (2010) 221, 220–3.
4
Condorelli and Kreß (2010), 225–8.

113
114 attribution to the state

The 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.5

This characterization was a point of contention within the ILC, with

the normative thesis being subjected to an extensive critique based on a
‘factual’ approach to attribution – the notion that attribution is a simple
empirical statement by an adjudicator based on an underlying factual
matrix.6 As the state is the principal subject of international law and
effectively precedes it, so the argument runs, the structure of the state
and the identification of its acts cannot be determined by rules forming
part of the international legal order.
This statist position, however, fails to grasp the need for legal standards
in the regulation of interstate relations.7 In addition, its proponents con-
cede that any process of ‘factual’ attribution must be conducted according
to ‘criteria, standards and principles, including, in addition to common
sense, national and international rules’,8 adopting in the end a normative
frame of analysis.9 Of course, normative processes must demonstrate
sensitivity to the facts of each case, but that is true in any event.10
One consequence of the normative approach is the possibility that the
general rules of attribution set out in ARSIWA Part One, Chapter II can
be displaced by a lex specialis within the meaning of ARSIWA Article 55.11
This may occur in one of two ways. In the first place, the lex specialis may
comprise an entirely new set of secondary rules of attribution introduced
by treaty and applicable as between the parties – a special rule of
attribution ratione personae.12 One example arises in the context of Article
139 of the United Nations Convention on the Law of the Sea,13 which
provides that a state may act as ‘sponsor’ of a private entity undertaking
seabed mining: in so doing, the state assumes responsibility for certain
acts of the private operator.14 In the second, a lex specialis with respect to

5
ARSIWA Commentary, Pt I, Ch. II, §4.
6
This was particularly evident in the writings of Special Rapporteur Arangio-Ruiz: e.g. ILC
Ybk 1989/II(1), 48–53.
7
Condorelli and Kreß (2010), 225. Also Kelsen (1960), ch. VII.
8 9
ILC Ybk 1989/II(1), 52. Condorelli and Kreß (2010), 225.
10
Crawford, (1999) 10 EJIL 435, 439; Condorelli and Kreß (2010), 227. Cf. Jinks, (2003) 4
Chicago JIL 83, 88–90, arguing that the scope of ARSIWA, Art. 8 has been relaxed in the
light of the 9/11 terrorist attacks.
11
Kees, ‘Responsibility of states for private actors’, (2011) MPEPIL, §2.
12 13
Crawford, First Report, 33–4. 10 December 1982, 1833 UNTS 3.
14
Further: Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area, (2011) 150 ILR 244; Freestone, (2011) 105 AJIL 755.
 organs and entities exercising authority 115

mechanisms of attribution may be inherent in the primary rule to which

the secondary rules of state responsibility apply – a special rule of
attribution ratione materiae.15 Such a rule was suggested by the Appeals
Chamber of the International Criminal Tribunal for the former Yugo-
slavia in the Tadic´ case for determining whether armed forces engaged in
an internal conflict are in fact fighting on behalf of a foreign state, even
where they do not meet the formal requirements to be considered an
organ of that state;16 the existence of such a special rule was denied by
the International Court in the Bosnian Genocide case.17

4.1.2 Bases of attribution in the ARSIWA

Chapter II of Part One of the ARSIWA consists of eight articles, which
may themselves be divided into three categories.18 The first – comprising
Articles 4 to 7 – forms the hard core of the doctrine of attribution,
dealing with organs and agencies of state exercising sovereign authority.
It operates largely though not exclusively by renvoi to the internal consti-
tutional and legal arrangements of the state in question.19 It is the
subject of this chapter.
The second category comprises Article 8 and is dealt with in Chapter 5.
In short, it considers those situations where a state, through the direc-
tion and control of another entity, creates a de facto organ or agent for the
purposes of attribution. Recently, this area has achieved considerable
prominence in terms of responsibility with respect to non-state actors
such as paramilitary organizations, private military and security com-
panies and terrorist groups.20 Given that such entities are not co-opted
into the legal apparatus of the state, municipal law plays a considerably
lesser role. Despite this, as Condorelli and Kreß have noted,21 the second
15
Condorelli and Kreß (2010), 227.
16
Tadić , Appeal against Conviction, (1999) 124 ILR 63, 98. Further: de Hoogh, (2001) 72
BYIL 255.
17
Bosnian Genocide, ICJ Rep. 2007 p. 43, 210–11. Further: Griebel and Plücken, (2008) 21 LJIL
601; Milanovic´, (2009) 22 LJIL 307.
18
On first reading there were no fewer than eleven, including a number of ‘negative
attribution’ articles. These were essentially circular and were deleted on second reading:
Crawford, First Report, 48–50, 53–4; ILC Ybk 1998/II(2), 84–7.
19
Crawford, First Report, 34.
20
Generally: Lehnardt, in Chesterman and Lehnardt (eds.), From Mercenaries to Market (2008)
139; Becker, Terrorism and the State (2006); Trapp, State Responsibility for International
Terrorism (2011); Tonkin, State Control over Private Military and Security Companies in Armed
Conflict (2011); Beaucillon, Fernandez and Raspail, in Francioni and Ronzitti (eds.), War by
Contract (2011) 396.
21
Condorelli and Kreß (2010), 227.
116 attribution to the state

category of attribution remains closely aligned with the first, as both

stem from the state’s capacity to determine its own organization on an
internal level. The difference lies in the realization that the first category
is established largely through the operation of internal law, while the
second is created de facto and externally through the instruction, direc-
tion or control by state organs of other entities and persons for particular
purposes.
Articles 9, 10 and 11 concern certain exceptional categories of attribu-
tion in which the actions of non-state actors may be considered attribut-
able to a state without any prior intervention, delegation or instruction
from an Article 4 organ.22 Article 9 covers the very special case where
private persons step in to fulfil state functions in the absence of the
official authorities – a form of agency of necessity. Article 10 deals with
responsibility arising from the conduct of an insurrectional movement
which succeeds in replacing the government or in creating a new state by
separation or secession. Article 11 is a residual category (added on second
reading): it addresses the situation, well known in domestic agency law,
of ratification: in international law terms, where a state by its conduct
adopts another’s actions as its own ex post facto.23 There is also the
further situation, external to the ARSIWA, of the attribution to states
of acts done under the supervision of international organizations,
notably in the context of peacekeeping and other forms of UN interven-
tion.24 These rather heterogeneous cases are dealt with in Chapter 6.

4.2 Organs of the state

4.2.1 Responsibility for the acts of state organs
The principle that a state is responsible for the actions of its organs25 is of
long standing, and was recognized as such by early ad hoc tribunals such
22
Generally: Dumberry, (2006) 17 EJIL 605.
23
ARSIWA, Art. 11 was first introduced in 1998: Crawford, First Report, 55–6.
24
See e.g. Behrami v. France; Saramati v. France, Germany and Norway, (2007) 133 ILR 1;
R (Al-Jedda) v. Secretary of State for Defence, [2008] 1 AC 332; Al-Jedda v. United Kingdom,
(2011) 147 ILR 107; Mukeshimana-Ngulinzira v. Belgium, ILDC 1604 (BE 2010); Nuhanović v.
Netherlands, LJN: BR5388, 5 July 2011; Mustafić v. Netherlands, LJN: BR5386, 5 July 2011.
25
The term ‘organ’ in this context appeared for the first time in the work of the Hague
Conference on the Codification of International Law in 1930. It was adopted by the ILC
through the work of Special Rapporteur Ago, who took the view that an organ was
nothing more than an individual acting alone or in concert on behalf of the state: ILC
Ybk 1973/I, 56. Some members of the Commission were concerned that a definition of
‘organ’ that contained references to individuals could prove confusing, however, and so
 organs and entities exercising authority 117

as the Mexican–American Claims Commission.26 In the Moses case, for

example, Umpire Liebler remarked that ‘[a]n officer or person in author-
ity represents pro tanto his government, which in an international sense
is the aggregate of all officers and men in authority.’27 Similarly, in the
Salvador Commercial Company case, it was said that ‘a State is responsible
for the acts of its rulers, whether they belong to the legislative, executive,
or judicial department of the Government, so far as the acts are done in
their official capacity’.28 The rule has been confirmed as customary in
categorical terms by the International Court in the Special Rapporteur
Advisory Opinion.29
The ARSIWA codify this basic proposition in Article 4, titled ‘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 accord-
ance with the internal law of the State.

The commentary to Article 4 makes it clear that responsibility for the

acts of state organs is unlimited, insofar as the act of the organ in
question is performed in an official capacity.30
In addition, there is no need for the organ to be, so to speak, the direct
proprietor of the unlawful act, depending on the primary obligation in
question. In the early case of the Alabama, Great Britain was held liable

Ago deleted all references to persons from Draft Art. 5 as adopted on first reading, in
order to ‘avoid entering into theoretic problems concerning the definition of the notion
of an organ itself’: Draft Articles Commentary, Art. 5, §12. Further: Momtaz, in
Crawford, Pellet and Olleson (2010) 237, 238.
26
On the contribution of the various Mexican Claims Commissions to international
responsibility as a whole, see Feller, The Mexican Claims Commissions 1923–1934 (1935,
repr. 1971), ch. 7.
27
Moore, 3 Int. Arb. 3127, 3129. Also: Claims of Italian Nationals Resident in Peru, (1901) 15
RIAA 395, 399 (Chiessa claim), 401 (Sessarego claim), 404 (Sanguinetti claim), 407 (Vercelli
claim), 408 (Queirolo claim), 409 (Roggero claim), 411 (Miglia claim); Finnish Shipowners
(UK/Finland), (1934) 3 RIAA 1479, 1501.
28
Salvador Commercial Company (El Salvador/US), (1902) 15 RIAA 455, 477.
29
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on
Human Rights, ICJ Rep. 1999 p. 62, 87: ‘According to a well-established rule of
international law, the conduct of any organ of State must be regarded as an act of that
State. This rule . . . is of a customary character.’
30
ARSIWA Commentary, Art. 4, §5. See further ARSIWA, Art. 7, as discussed below.
118 attribution to the state

for permitting the construction in Liverpool of the CSS Alabama, a Con-

federate commerce raider that caused considerable damage to Union
interests.31 In the Corfu Channel case, Albania was held responsible for
the laying of mines in its territory by an unnamed third party (most
likely Yugoslavia32) on the basis of its officials’ knowledge of the activity
and their corresponding failure to warn shipping in the area.
In the modern era, the Panels and Appellate Body of the WTO’s Dispute
Settlement Body have considered similar cases of indirect liability in cases
where state organs have failed to properly supervise the actions of private
actors such that the international obligations of the relevant state are
met. In Canada – Dairy (Art. 21.5 II), the Appellate Body noted that
irrespective of the role of private parties . . . the obligations . . . remain obligations
imposed on Canada . . . The question is not whether one or more individual milk
producers, efficient or not, are selling CEM at a price above or below their
individual costs of production. The issue is whether Canada, on a national basis,
has respected its WTO obligations.33

4.2.2 Defining an ‘organ’

Under ARSIWA Article 4(1), the actions of any state organ will be attrib-
utable to that state as a matter of international law, ‘whether the organ
exercises legislative, executive, judicial or any other functions’. This
wording reflects the idea that the separation of powers, although widely
adopted in theory, has been subject to local variation and elaboration,34
as well as uneven practical execution, rendering the caveat ‘any other
functions’ necessary. Mere ownership of an entity by a state, however,
will not automatically convert that entity into an organ of the state.35
31
The tribunal in that case also considered British liability for the activities of the CSS
Florida, also built in Liverpool: Alabama Arbitration (Great Britain v. US) (1872), in Moore,
1 Int. Arb. 495. Further: Bingham (2005); Bingham, ‘Alabama arbitration’, (2006) MPEPIL.
32
Chinkin, Third Parties in International Law (1993), 319.
33
Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products
(Article 21.5, II), WT/DS103/AB/RW2, 17 January 2003, §§95–6.
34
See e.g. the Constitution of the Republic of China (Taiwan), which makes reference to
five branches (or ‘yuan’) of government: executive, legislative, judicial, examination
(responsible for validating the qualifications of civil servants) and control (responsible
for auditing): Constitution of Taiwan (2005, as amended), Chs. V–IX. This structure arose
from the blending of Montesquieu’s ideas with Confucian notions of government: Sun,
Three Principles of the People (1927; trans. Price 1938), Pt II, lecture 6. Analogues for the
latter two branches exist in other states, but are considered constitutionally subsidiary
to other branches: e.g. the US Office of Personnel Management (part of the executive
branch) and the US Government Accountability Office (part of the legislative branch).
35
EDF (Services) Limited v. Romania, ICSID Case No. ARB/05/13, 8 October 2009, §190, holding
that two state-owned corporations ‘both possessing legal personality under Romanian
 organs and entities exercising authority 119

4.2.2.1 The executive

Despite such variations, most acts giving rise to implications of responsi-
bility will emerge from the executive government, which provides the
most direct manifestation of state power. The most obvious executive
manifestations are actions of the armed forces, which in the context of
armed conflict are in all cases attributable to and engage the inter-
national responsibility of the state in question.36 As was noted by the
International Court in the Armed Activities case,
The conduct of the UPDF as a whole is clearly attributable to Uganda, being the
conduct of a State organ. According to a well-established rule of international
law, which is of customary character, ‘the conduct of any organ of a State must
be regarded as an act of that State’. . . In the Court’s view, by virtue of the military
status and function of Ugandan soldiers in the DRC, their conduct is attributable
to Uganda. The contention that the persons concerned did not act in the capacity
of persons exercising governmental authority in the particular circumstances, is
therefore without merit. It is furthermore irrelevant for the attribution of their
conduct to Uganda whether the UPDF personnel acted contrary to the instruc-
tions given or exceeded their authority. According to a well-established rule of a
customary nature, as reflected in Article 3 of the Fourth Hague Convention
respecting the Laws and Customs of War on Land of 1907 as well as in Article
91 of Protocol 1 additional to the Geneva Conventions of 1949, a party to an
armed conflict shall be responsible for all acts by persons forming part of its
armed forces.37

It has been suggested that the automatic attribution of acts of armed

forces to the state represents a special rule of attribution ratione mater-
iae,38 on the basis that their acts remain attributable even where the
forces in question are no longer under the control of the state, as where
soldiers have become lost and decide to shoot their way out of trouble.

law separate and distinct from that of the State, may [not] be considered as a State
organ’. Cf. ILC Ybk 1998/I, 243 (Hafner). Further: Chapter 5.
36
Hague Convention IV Respecting the Laws and Customs of War on Land, 18 October
1907, 205 CTS 277, Art. 3; 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, Art. 91. Further, UK Ministry of Defence, The Manual of the Law of
Armed Conflict (2004), 4; Henckaerts and Doswald-Beck, 1 Customary International
Humanitarian Law (2005; repr. 2009), 530–50; Condorelli and Kreß (2010), 227–8.
37
Armed Activities (DRC v. Uganda), ICJ Rep. 2005 p. 168, 242.
38
Condorelli, (1984) 189 Hague Recueil 9, 145ff; Condorelli and Kreß (2010) 222, 227–8;
Tonkin (2011), 96–7. See also the remarks of Reuter and Ago during the deliberations of
the ILC: ILC Ybk 1975/I, 7 (Reuter), 16 (Ago). Further: Tadić , Appeal against Conviction,
(1999) 124 ILR 61, 101 n. 117, describing the view as ‘forcefully advocated in legal
literature’.
120 attribution to the state

But it is hard to see how this position differs from the rule of automatic
attribution already in operation under ARSIWA Article 4, especially in
the light of ARSIWA Article 7, which confirms that acts ultra vires remain
attributable to a state where committed by one of its organs. The mere
fact of a soldier losing his way does not deprive him of the status of a
state organ, and prima facie any acts of soldiery he performs while astray
remain those of the state, even if they involve pillage for private gain.39
By contrast, private acts of military personnel involved in a brawl while
on shore leave would not of themselves give rise to state responsibility.40
The dividing line between the two is perhaps best demonstrated by the
early case of Youmans, in which Mexican troops brought in by the gov-
ernment to forestall an attack on three American nationals not only
failed to disperse the attacking crowd, but participated in the riot. On
the basis that the soldiers were on duty and under the command of a
superior officer at the time, Mexico was held responsible for the deaths
of the Americans.41 Had the troops been wearing civilian clothing and
participating in the riot as effectively private citizens, Mexico would
presumably not have been held responsible.

4.2.2.2 The legislature

Similarly, the legislature, through the passage of laws, regulations and
other ordinances, is also capable of manifesting state power, a point
noted by the Permanent Court in Certain German Interests in Polish Upper
Silesia:
From 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 the State, in the same manner as do legal decisions or administrative
measures.42

Internal legal doctrines such as parliamentary sovereignty do not

diminish the force of this conclusion, although in many cases some
executive act giving effect to the legislation will be required to give rise
to responsibility.43 Some classes of treaty obligation will, however, give
39
See e.g. Eis (US/Soviet Union), (1959) 30 ILR 116, 117.
40
The Zafiro (Great Britain/US), (1925) 6 RIAA 160, 164.
41 42
Youmans (US/Mexico), (1926) 3 ILR 223, 223–4. (1926) PCIJ Ser. A No. 7, 19.
43
See e.g. Tippets, Abbet, McCarthy, Stratton v. TAMS-AFFA Consulting Engineers of Iran, (1984) 6
Iran–US CTR 219, 225–6; Phelps Dodge Corp. v. Iran, (1986) 10 Iran–US CTR 121, 130;
Tecnicas Medioambientales Tecmed SA v. Mexico, (2006) 10 ICSID Reports 130, 175; Telenor
Mobile Communications AS v. Hungary, ICSID Case No. ARB/04/15, 13 September 2006,
§§64–70. Also Dolzer and Schreuer, Principles of International Investment Law (2008), 101–4.
 organs and entities exercising authority 121

rise to responsibility in the absence of legislation, for example where an

agreement requires that it be made effective through the adoption of
certain municipal law standards.44 In addition, as stated in ARSIWA
Article 3, a state cannot plead the provisions of its internal law in order
to justify an internationally unlawful act. As the International Court
stated in the Avena Interpretation case,
[T]he Court observes that considerations of domestic law which have so far
hindered the implementation of the obligation incumbent upon the United
States, cannot relieve it of its obligation. A choice of means was allowed to the
United States in the implementation of its obligation and, failing success within a
reasonable period of time through the means chosen, it must rapidly turn to
alternative and effective means of attaining that result.45

4.2.2.3 The judiciary

Judicial acts are, of course, capable of giving rise to state responsibility,46
and at least one ‘nominate delict’, denial of justice, is specifically con-
cerned with judicial acts. In this regard, the doctrine of judicial inde-
pendence – like that of parliamentary sovereignty – has internal effect
only: that the judiciary has erred from the perspective of international
law may attract state responsibility no matter how independent of the
executive the judicial act may have been. Thus in the Special Rapporteur
Advisory Opinion, the International Court considered the acts of the
Malaysian judiciary as those of a state organ in the sense of ARSIWA
Article 4.47 More explicitly, the WTO Appellate Body in US – Shrimp
remarked that ‘[t]he United States, like all other members of the WTO
and of the general community of states, bears responsibility for acts of
all of its departments of government, including the judiciary.’48
One characteristic way in which judicial actions engage the inter-
national responsibility of the state is through denial of justice with
44
As in the case of the so-called ‘sectoral’ agreements on terrorism: e.g. International
Convention on the Suppression of the Financing of Terrorism, 9 December 1999, 2178
UNTS 197, Art. 4. Also UN Charter, Art. 103 and SC Res. 1373 (2001).
45
Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and
Other Mexican Nationals (Mexico v. US), ICJ Rep. 2009 p. 3, 18.
46
Anzilotti, Cours de droit international (1929; repr. 1999), 479: ‘[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 the executive interferes with
the administration of justice.’ Also Momtaz (2010), 239–40.
47
ICJ Rep. 1999 p. 62, 87–8.
48
US – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 6 November
1998, §173.
122 attribution to the state

respect to aliens;49 another is through the misinterpretation or misappli-

cation of treaties.50 Thus, in LaGrand51 and Avena,52 foreign citizens in
the United States had been tried and sentenced to death without regard
for their rights under the Vienna Convention on Consular Relations.53
The International Court ordered a stay of execution, noting 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’.54 Following the rejection of the injunction by the US Supreme
Court on constitutional grounds,55 the state of Arizona carried out the
executions. The International Court subsequently held that ‘the United
States, by applying rules of its domestic law . . . violated its international
obligations’.56 Similar conclusions were reached by the Court in Avena,
where it was considered that
[T]he rights guaranteed under the Vienna Convention are treaty rights which the
United States has undertaken to comply with . . . the legal consequences of [a]
breach have to be examined and taken into account in the course of review and
reconsideration . . . the process of review and reconsideration should occur
within the overall judicial proceedings relating to the individual defendant
concerned.57

Similar considerations apply to the interpretation of domestic legisla-

tion in ways contrary to international law. In most legal systems there is
at least a presumption that legislation is to be interpreted as conforming
with rather than violating international law, but the legislation may be

49
Generally: Paulsson (2005).
50
McNair, Law of Treaties (1961), 346:
[A] State has a right to delegate to its judicial department the application and
interpretation of treaties. If, however, the courts commit errors in that task, or
decline to give effect to the treaty or are unable to do so because the necessary
change in, or addition to, the national law has not been made, their judgments
involve the State in a breach of treaty.
51
LaGrand (Germany v. US), ICJ Rep. 2001 p. 466, 508.
52
Avena and Other Mexican Nationals (Mexico v. US), ICJ Rep. 2004 p. 12, 66.
53
24 April 1963, 596 UNTS 261. Also Vienna Convention on Consular Relations (Paraguay v. US),
Provisional Measures, ICJ Rep. 1998 p. 248 (removed from list prior to merits).
54
LaGrand, Provisional Measures, ICJ Rep. 1999 p. 9, 16.
55
See Federal Republic of Germany v. US, 526 US 111, 112 (1999), rejecting Germany’s attempt
to enforce the injunction on the basis that (a) the US had not waived sovereign
immunity, (b) Art. III, §2, cl. 2 of the US Constitution did not apply to prevent the
execution of a foreign national who was not an ambassador or consul, and (c) the
Eleventh Amendment of the US Constitution did not permit federal judicial power to be
exercised with respect to a foreign state’s suit against the US or any of its constituent
states.
56 57
ICJ Rep. 2001 p. 466, 472–3. ICJ Rep. 2004 p. 12, 65–6.
 organs and entities exercising authority 123

clearly violative while remaining constitutionally valid.58 For example,

in Mortensen v. Peters59 the Scottish Court of Sessions interpreted fish-
eries legislation as extending four miles out to sea, at a time when
the predominant view (certainly the British view) was that only a
three-mile territorial sea was permitted. In the event the executive
decided not to enforce the limit as against foreign vessels beyond three
miles, thereby avoiding international claims if not international
responsibility.60

4.2.2.4 Federal and other internal subdivisions

In keeping with the notion that the constitutional arrangements of the
state are of limited or no relevance when considering international
responsibility, it is no excuse for a state to deny liability by virtue of
the fact that the wrongful act was performed by an internal political
subdivision, such as a state, province or territory.61 This is provided for
expressly in ARSIWA Article 4(1). The rule is of a long-standing and
customary character, as acknowledged by the Mexican–French Claims
Commission in the Pellat arbitration with respect to the Mexican state of
Sonara:
[T]he argument [that Mexico was not responsible for the acts of Sonara] ignores
the principle of international responsibility . . . of a federal state for all State
actions which give rise to claims of foreign states. This vicarious liability cannot
be denied, not even if the Federal Constitution to the Central Government would
deny the right of control over individual states, or the right to require them to
comply [with] the requirements of international law.62

A similar principle was expressed in the 1929 Harvard Draft on the

Responsibility of States for Damage Done in Their Territory to the Person
or Property of Foreigners, Article III of which provided:

58
On the presumption of consistency with international law see Brownlie’s Principles, 66–7
(UK), 79–80 (US), 93–103 (treaties in the civil law tradition).
59
(1906) 14 SLT 227.
60
O’Connell, 1 The International Law of the Sea (1982), 364–7; Churchill and Lowe, The Law of
the Sea (3rd edn, 1999), 447–8.
61
ARSIWA Commentary, Art. 4, §§8–10; Momtaz (2010), 241–3.
62
Estate of Hyacinth Pellat (France/Mexico), (1929) 5 RIAA 534, 536. Also Youmans v. Mexico
(US/Mexico), (1926) 4 RIAA 110, 116; Mallén v. US (Mexico/US), (1927) 4 RIAA 173, 178, 181;
Heirs of the Duc de Guise, (1953) 13 RIAA 150, 156; Metalclad Corporation v. Mexico, (2000)
119 ILR 615, 634; Compañía de Aguas del Aconquija SA and Compagnie Générale des Eaux
(Vivendi) v. Argentina, (2000) 5 ICSID Reports 296, 313; Mytilineos v. Serbia and Montenegro,
(2006) 16 ICSID Reports 567, 602–3.
124 attribution to the state

A state is not relieved of responsibility because an injury to an alien is attribut-

able to one of its political subdivisions, regardless of the extent to which the
national government, according to its constitution, has control of the subdiv-
ision. For the purposes of this article, a dominion, a colony, a dependency, a
protectorate, or a community under a mandate, which does not independently
conduct its foreign relations, is to be assimilated to a political subdivision.63

The principle was confirmed in the modern era by the International

Court in LaGrand. In its decision on provisional measures, the Court
noted that under US domestic law Arizona had the capacity to comply
with the Court’s interim orders: ‘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 . . . [T]he Governor of Arizona
is under the obligation to act in conformity with the international
undertakings of the United States’.64 A similar view has been taken by
WTO panels, one of which in Australia – Salmon (Art. 21.5) held Australia
liable for the actions of Tasmania.65 Rather more controversially, the
Inter-American Court of Human Rights has construed the so-called ‘fed-
eral clause’ (Article 28) of the American Convention on Human Rights66
to imply state responsibility for the acts of federated units:67 the ordin-
ary intent of such a clause is to limit responsibility through constraint of
the primary norm.68

4.2.3 De facto organs

Although ARSIWA Article 4(2) is phrased in terms of ‘the internal law of
the State’, the use of the term ‘includes’ indicates that internal law is not
the end of the matter, a change made, after vigorous debate, on second
reading.69 As is made clear in the commentary,70 in some legal systems
the status of state organ may be bestowed not only by internal law but
also by internal practice, creating a category of de facto organ. A state
cannot evade responsibility for the conduct of a body which as a matter

63
(1929) 23 AJIL Spec. Supp. 133, 133.
64
ICJ Rep. 1999 p. 9, 16. Also Avena, Provisional Measures, ICJ Rep. 2003 p. 77, 80; Avena
Interpretation, Provisional Measures, ICJ Rep. 2009 p. 311, 329.
65
Australia – Measures Affecting the Importation of Salmon (Article 21.5), WT/DS18/RW, 20
March 2000, §7.12.
66
22 November 1969, 1144 UNTS 123.
67
Garrido and Baigorria v. Argentina, IACtHR C/39, 27 August 1998, §38.
68 69
Momtaz (2010), 243. ILC Ybk 1998/I, 241–6; ILC Ybk 1998/II(2), 82.
70
ARSIWA Commentary, Art. 4, §11. Also Milanovic´, (2006) 17 EJIL 553, 582; Momtaz
(2010), 243–4; Tonkin (2011), 86–90.
 organs and entities exercising authority 125

of practice is considered to be or acts as an organ merely by denying it

status as such under internal law.
Such an equation may only take place, however, in exceptional cir-
cumstances, since ultimately international law looks to substance rather
than form. That point was made clearly by the International Court in
Bosnian Genocide, although using the term ‘agent’ rather than ‘organ’.
There – using language used earlier in the Nicaragua case – the Court
drew a threshold at the point at which ‘the persons, groups or entities
act in “complete dependence” on the State, of which they are ultimately
merely the instrument’.71 It continued:
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.72

The exceptional status of a de facto agent was emphasized by the Court

in requiring ‘proof of a particularly great degree of State control’ over
the entity in question. Some indication as to factors which could help
establish such dependence or control were identified by the Court in
Nicaragua,73 which made particular reference to: (a) whether the non-
state entity was created by the state; (b) whether state involvement
exceeded the provision of training and financial assistance; (c) whether
complete (as opposed to a degree of or potential for) control was exer-
cised in fact; and (d) whether the state selected, installed or paid the
political leaders of the group.74 The Court noted that

71
ICJ Rep. 2007 p. 43, 205, citing Nicaragua, ICJ Rep. 1986 p. 14, 62–3. This represents an
expansion on the wording of ARSIWA, Art. 4, which does not consider explicitly the
standard of control required: Milanovic´ (2006), 582–3. For criticism, see Griebel and
Plücken, (2008) 21 LJIL 601; contra Milanovic´ (2009).
72
ICJ Rep. 2007 p. 43, 205
73
It is common to speak of Nicaragua as developing a single test for the attribution of the
conduct of private actors to the state: see e.g. Meron, (1998) 92 AJIL 236, 237 (referring to
‘the Nicaragua test’); Chase, (2004–5) 45 Va JIL 41, 107 (describing the ICJ as having
arrived at ‘the effective control standard’); Dinstein, War, Aggression and Self-Defence (5th
edn, 2011), 224. In truth it created two tests: one of ‘complete control’ in the context of
what would become ARSIWA, Art. 4, and one of ‘effective control’ for entities under the
direction and control of a state in the context of what would become ARSIWA, Art. 8:
Tadic´, ICTY Case No. IT-94-1-T, Trial Chamber, 7 May 1997, 295–6 (Judge McDonald,
diss.); cf. the later decision of the Appeals Chamber in Tadic´, Appeal against Conviction,
(1999) 124 ILR 61, 106–7. On the use of ARSIWA, Art. 8, see further Chapter 5.
74
ICJ Rep. 1986 p. 14, 62–3.
126 attribution to the state

according to Nicaragua, the contras are no more than bands of mercenaries which
have been recruited, organized, paid and commanded by the Government of the
United States. This would mean that they have no real autonomy in relation to
that Government. Consequently, any offences which they have committed would
be imputable to the Government of the United States, like those of any other
forces under the latter’s command.75

Once such a relationship is proved, however, a de facto organ func-

tions just like any other, and all acts it performs in the exercise of state
authority are attributable to the state.76 It is for this reason that the
present work will use the term only in the context of ARSIWA Article 4,
even though it was introduced by Special Rapporteur Ago with reference
to the predecessor of ARSIWA Article 8.77 Within the law of state respon-
sibility, an organ is an entity whose conduct gives rise to per se responsi-
bility on the part of the state. As will be seen in Chapter 5, the same
cannot be said of the entities contemplated under ARSIWA Article 8,
rendering the use of the word ‘organ’ there inapposite.

4.3 Entities exercising governmental authority

4.3.1 Attribution of acts of private parties
Even where an entity is not an organ of the state, the latter may still be
held responsible for its conduct in certain circumstances. It is tempting,
especially for a common lawyer, to use the municipally well-known term
‘agency’ compendiously to cover such cases, but the ARSIWA avoids the
term entirely.78 Instead, it analyses separately the case where sovereign or
governmental authority is delegated to an entity which is not an organ,

75
Ibid., 64. Also Milanovic´ (2006), 577:
The type and degree of control must qualitatively be the same as the control a
state exercises over its own organs, forces or territory, and the state would
accordingly be responsible for any acts committed by such a group, even if a
specific act was committed ultra vires or against explicit instructions.
76
Bosnian Genocide, ICJ Rep. 2007 p. 43, 207. Further: Momtaz (2010), 243.
77
ILC Ybk 1971/II(1), 264.
78
ARSIWA Commentary, Art. 5, §§1–7. The DARIO, by contrast, make frequent use of the
term: see e.g. DARIO, Arts. 6, 7, 9, 53(2)(b). The term ‘agent of an international
organization’ is defined in DARIO, Art. 2(d) as ‘an official or other person or entity, other
than an organ, who is charged by the organization with carrying out, or helping to carry
out, one of its functions, and thus through whom the organization acts’. On agency at
common law see e.g. Watts (gen. ed.), Bowstead and Reynolds on Agency (19th edn, 2012).
For a comparative overview of domestic agency laws, see Verhagen, in Smits (ed.), Elgar
Encyclopedia of Comparative Law (2006) 33.
 organs and entities exercising authority 127

and cases where, without formal delegation, such an entity acts on state
instruction, direction or control. The latter case is covered by Article 8,
discussed in Chapter 5; the former case is dealt with in Article 5.
ARSIWA Article 5 provides:
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 inter-
national law, provided the person or entity is acting in that capacity in the
particular instance.

ARSIWA Article 5 represents a concept known previously within inter-

national law and which represents a functional test of attribution, as
opposed to the structural test of ARSIWA Article 4. Within the Draft
Articles, it was contained within Draft Article 7(2), the commentary to
which explained:
The fact that an entity can be classified as public or private . . . the existence of a
greater or lesser State participation in its capital or, more generally, in the
ownership of its assets, and the fact that it is not subject to State control, or it
is subject to State control to a greater or lesser extent . . . do not emerge as
decisive criteria for the purposes of attribution or non-attribution to the State of
the conduct of its organs . . . [T]he 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 specific functions which
are akin to those normally exercised by the organs of the State . . .79

Article 5 has increased in relevance as the modern state has out-

sourced increasing numbers of what would classically have been con-
sidered ‘government’ functions, resulting in the creation of parastatal
entities.80 The commentary places in this category, inter alia, ‘public
corporations, semi-public entities, public agencies of various kinds, and
even, in special cases, private companies’,81 provided that in each case
the entity is empowered by domestic law to exercise some species of
governmental authority. In most recent times, concern has been focused
on the activities of what are presently termed ‘private military corpor-
ations’, and the use by the United States of entities such as Academi
(previously known as Blackwater and Xe Services) and DynCorp in
Afghanistan and Iraq.82 This is not the only modern example, however;

79 80
Draft Articles Commentary, Art. 7, §18. ARSIWA Commentary, Art. 7, §1.
81
Ibid., §2.
82
Generally: Wolfrum, in Ragazzi (2005) 423; Lehnardt (2008); Hoppe, (2008) 19 EJIL 989;
Beaucillon, Fernandez and Raspail (2011).
128 attribution to the state

governments employ corporate entities inter alia to control immigration

and to run prisons, things that can only be done through the exercise of
public powers of detention, arrest and so on. Further examples are central
banks and stock exchanges which in many cases are separate from
governments and their economic policies, but which may exercise
regulatory authority.83
Not all corporate entities with ties to the government are to be con-
sidered agents of the state for the purpose of ARSIWA Article 5. This
distinction is evidenced in the jurisprudence of the Iran–US Claims
Tribunal, which, due to the character and course of the Iranian Revolu-
tion of 1979, was required to determine on numerous occasions whether
the acts of prima facie private individuals could be attributed to Iran.84 In
Hyatt International Corporation v. Iran, the Tribunal held Iran liable for acts
of expropriation carried out by a non-state charity, the Foundation of the
Oppressed. It said:
In view of the circumstances of its establishment and mode of governance, and in
view of the functions it fulfils, the Tribunal concludes that the . . . Foundation for
the Oppressed, has been and continues to be instrumentally controlled by the
Government of the Islamic Republic of Iran.85

By contrast, the Tribunal in Schering Corporation v. Iran did not consider

the actions of a ‘workers’ council’ at the claimant company to be attrib-
utable to the Iranian state:
The constitution and regulatory framework of the creation of Workers’ Councils
do not indicate that the Councils were to have other duties than basically
representing the workers’ interest vis-à-vis the management of companies and
institutions and to cooperate with the management. That the formation of the
Councils was initiated by the State does not in itself imply that the Councils were
to function as part of the State machinery.86

A similar picture often emerges in the context of investor-state arbi-

tration. A useful example is EDF (Services) Limited v. Romania, where the
claimant drew on multiple provisions of the ARSIWA in an attempt to
prove that the conduct of two state-owned corporations, CN Bucarest

83
Momtaz (2010), 244. Whether a central bank is considered to be a state organ within the
meaning of ARSIWA, Art. 4 or an entity exercising governmental authority within the
meaning of Art. 5 depends on its precise relationship with the government: ILC Ybk
1998/I, 243 (Crawford).
84
Indeed, the Tribunal’s jurisprudence made a signal contribution to the development of
attribution as a whole: Caron, in Lillich and Magraw (1998) 109.
85 86
(1985) 9 Iran–US CTR 72, 94. (1984) 5 Iran–US CTR 361, 370.
 organs and entities exercising authority 129

Aeroporti Otopeni (AIBO) and Compania de Transportationuri Aeriene

Romane Tarom SA (TAROM), by virtue of certain wholly commercial
activities was attributable to Romania. With respect to attribution under
Article 5, the Tribunal held:
AIBO’s and TAROM’s contractual relations with EDF under the [two joint venture
agreements] were not exercises of delegated government authority. Rather, these
relations were entered into and performed in pursuit of the corporate objectives of
a commercial company with a view to making profits, as any other commercial
company operating in Romania . . . Accordingly, neither AIBO nor TAROM were
agents of Romania or exercised governmental functions when they performed the
specific acts and conduct alleged by Claimant to be in breach of the BIT.87

4.3.2 Defining ‘governmental authority’

By its terms, ARSIWA Article 5 requires that the entity is ‘empowered by
the law of that State to exercise elements of the governmental authority’.
There is no consensus as to precisely what constitutes ‘governmental
authority’ – the concept tends to depend ‘on the particular society in
question, its history and traditions’.88 However, certain central cases of
governmental authority which may be exercised by private entities may
be identified. As specified in the commentary, these include powers of
detention and discipline pursuant to a judicial sentence, powers in rela-
tion to immigration control and quarantine, and the identification of
property for seizure.89 It may be thought unsatisfactory in defining
governmental authority to rely simply on the functions governments
have historically performed: such an ‘intuitive’ appreciation may
become increasingly difficult to justify as more and more functions are
privatized or outsourced.90 But the consequence of such a development –
to the extent it occurs – will simply be that Article 5 will narrow in scope,
by comparison with Article 8.
The commentary does not, however, limit itself to historical precedent
in determining what is governmental authority for this purpose. It
offers a further set of criteria,91 positing that such a designation will
depend on (a) the content of the powers, (b) the manner in which they are
conferred on the entity, (c) the purposes for which the powers are to be
exercised, and (d) the extent to which the entity is publicly accountable
for their exercise.

87
ICSID Case No. ARB/05/13, 8 October 2009, §§197–8.
88
ARSIWA Commentary, Art. 5, §6. Also: ILC Ybk 1998/I, 229, 232 (Crawford).
89 90 91
Ibid., §2. Tonkin (2011), 101. ARSIWA Commentary, Art. 5, §6.
130 attribution to the state

Insofar as criterion (a) is concerned, one method by which an act may

be described as having governmental content is if the state ordinarily
reserves such conduct for itself. Put another way, if a private person can
perform the function without the government’s permission, it is not to
be considered governmental.92 According to the restrictive theory of
state immunity, this manifests as the well-known distinction between
acta iure imperii, which attract immunity, and acta iure gestionis, which do
not.93 Application of these concepts to attribution under ARSIWA Article
5 is useful, and achieves consistency between these different areas of
international law.94 Thus private persons may not lawfully engage in
combat operations without government mandate, but they can enter
into contracts for the supply of military goods and services.95 As Tonkin
points out, however, the mere fact that a private entity can perform an
act without governmental authorization does not necessarily mean that
governmental authority in the context of ARSIWA Article 5 is excluded –
the provision of convoy security for a military operation or high-ranking
civilian dignitary is not acta iure imperii but is still redolent of govern-
mental authority.96 In such cases, it may be that no abstract rule can
adequately capture the complexity of the situation, leaving the question
of attribution under Article 5 to the appreciation of the tribunal.
Criterion (b) as identified in the commentary – the manner of
conferral – is likewise relevant. In most cases, governmental authority
will be conferred by statute or by executive order,97 and no particular
problem will arise. But governments have increasingly begun to use
contractual arrangements with private entities in order to avoid scrutiny
of their operations – particularly in the case of private prisons and the
use of private military corporations in combat zones.98 The phrase in
Article 5 – ‘empowered by the law of that State’ – would seem to require
specific delegation rather than legality under the general law. But it is

92
Tonkin (2011), 101–8.
93
Generally: Sornarajah, (1982) 31 ICLQ 661; Crawford, (1983) 54 BYIL 75; Trooboff, (1986)
200 Hague Recueil 235; Schreuer, Sovereign Immunity: Some Recent Developments (1988); Fox,
The Law of State Immunity (2nd edn, 2008), 502–30.
94
ILC Ybk 1998/I, 243 (Crawford).
95
Cf. Sandline International Inc. v. Papua New Guinea, (1998) 117 ILR 552, where an arbitral
tribunal felt able to hold a mercenary contract enforceable despite its
unconstitutionality under the law of the host state.
96
Lehnardt (2008), 145; Tonkin (2011), 101.
97
This was true of the Foundation for the Oppressed: Hyatt International Corporation v. Iran,
(1985) 9 Iran–US CTR 72, 88–91.
98
Tonkin (2011), 103.
 organs and entities exercising authority 131

necessary to disaggregate the functions involved, for example in the

running of a private prison. Catering, cleaning and running educational
courses do not involve as such the exercise of governmental authority;
the exercise of powers of arrest, detention and internal discipline do.
If such functions are lawfully conferred by public contract, then
the empowering law would qualify for the purposes of an Article 5
delegation.99
Criterion (c) is the purpose for which the power is conferred.100 Put
another way, it may be asked, has the power been bestowed in order to
advance classically sovereign objectives? An example of a situation in
which purpose was highly relevant was Hyatt International Corporation v.
Iran, in which the Articles of Association of the Foundation for the
Oppressed provided in Article 2 that:
[The purposes of the Foundation include] [c]entralization in the Foundation with
the purpose of management and utilization, of all liquid funds, shares, securities,
moveable and immovable assets of the Pahlavi family and the wealth of all
natural and legal persons who through affiliation with the above family have
illegally accumulated fortunes, whether in Iran or abroad, [as to which] the
Revolutionary Court has issued or will issue orders for their restitution or
temporary management, and the acquisition thereof by the oppressed . . . [The
Foundation] can proceed with the use of [various Revolutionary tribunals] for the
discovery, seizure, removal, maintenance, inventory taking, assessment, change
for the better, operation and every other action required for the management of
the properties.101

On this basis, the Tribunal held that ‘[i]n its establishment, govern-
ance, and objectives, the Foundation thus appears to be an instrumental-
ity of the Government of Iran.’102
Criterion (d) refers to accountability, and the extent to which the
government is entitled to supervise those on whom it has bestowed
governmental authority. Hyatt Corporation International v. Iran again pro-
vides a clear-cut example: the Foundation for the Oppressed was subject
to considerable oversight by the Iranian government; its officers were
appointed, dismissed and directed by an officer appointed by the Ayatol-
lah Khomeini, its financial and business affairs were supervised by the

99
In the United Kingdom, private prisons have been established under the Private Finance
Initiative, in which the right to establish a private prison is established by contract. By
contrast, the right of the captain of a commercial aircraft to give directions to
passengers is established by statutory order: Air Navigation Order 2009 (UK), Art. 141.
100
Lehnardt (2008), 145–6; Tonkin (2011), 103–8.
101 102
(1985) 9 Iran–US CTR 72, 89. Ibid., 91.
132 attribution to the state

office of the Iranian prime minister and its accounts were subject to
government audit.103

4.3.3 ‘Empowered by the law’ of the state

ARSIWA Article 5 does not look simply at the question of ‘governmental
authority’; it also requires that the capacity to exercise authority be
derived from the law of the state. This requirement is of a formal
character and requires only that the entity in question must have been
empowered pursuant to some legal provision of the state.104 This is
clearly contemplated in the commentary, which makes reference to
‘private security firms contracted to act as prison guards’.105 It is not
necessary that the empowering law should define the roles and responsi-
bilities of the entity exhaustively.106

4.4 Organs placed at the disposal of another state

ARSIWA Article 6 deals with an extremely narrow – but in practice not
uncommon – situation where the organ of one state is placed at the
disposal of another such that it effectively acts for the latter’s benefit and
under its authority. Article 6 reads:
The conduct of an organ placed at the disposal 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.

Article 6 is concerned with the capacity of an organ of state A to exercise

the governmental authority of state B, in which case its acts will be
attributed to the latter but not the former.107 This implies that the organ
of state A is acting with the consent, under the authority and for the
purposes of state B. A simple example may be seen in the Chevreau
case,108 which concerned the British consul in Persia, who while acting
as the temporary chargé d’affaires of the French consulate in Tehran,
received and then lost documents entrusted to him. On a claim brought
by France, Arbitrator Beichmann held that ‘the British Government
103
Ibid., 89–92, and see Lehnardt (2008), 145; Tonkin (2011), 103.
104
Tonkin (2011), 111; cf. Beaucillon, Fernandez and Raspail (2011), 404–5.
105 106
ARSIWA Commentary, Art. 5, §2. Ibid., §7.
107
Ibid., Art. 6, §1. This is distinct from a situation in which a state organ is placed at the
disposal of an international organization, as discussed in Chapter 6.
108
Chevreau (France/Great Britain), (1931) 2 RIAA 1113.
 organs and entities exercising authority 133

cannot be held responsible for negligence by its Consul in his capacity as

the person in charge of the Consulate of another power’.109 The implica-
tion was that the agreed terms on which the British consul was acting
contained no provision for allocating responsibility for his act to the
United Kingdom.110

4.4.1 Defining ‘disposal’

The specialized character of ARSIWA Article 6 is evident from the defin-
ition given to the crucial phrase ‘placed at the disposal’. In the commen-
tary, it is said that the term
does not mean only that the organ must be appointed to perform functions
appertaining to the State at whose disposal it is placed. It also requires that, in
performing the functions entrusted to it by the beneficiary State, the organ shall
act in conjunction with the machinery of that State and under its exclusive
direction and control, not on instructions from the sending State.111

One example of a ‘loaned’ organ for the purposes of Article 6 – even

though it never moves from London – is the Judicial Committee of
the Privy Council, which acts as a court of final appeal for a number of
states within the Commonwealth.112 Its role is paralleled by certain
final courts of appeal acting pursuant to treaty arrangements.113
Another, sui generis, example arose in the context of the Auditor-General
of New Zealand, who for a time acted as the auditor of the Cook
Islands by virtue of an agreement between the two and pursuant to
the Constitution of the Cook Islands.114 In the Winebox case, the question
arose whether the Auditor-General could be required by a New
Zealand court to produce documents acquired in the exercise of this
function. The Court of Appeal rightly approached the case on the
basis that the Auditor-General was performing an official function
on behalf of the Cook Islands and was not responsible to any

109 110
Ibid., 1141. Crawford, First Report, 44.
111
Draft Articles Commentary, Art. 9, §5. See also ARSIWA Commentary, Art. 6, §4: ‘Thus
what is crucial for the purposes of article 6 is the establishment of a functional link
between the organ in question and the structure or authority of another State’. Also
ibid., §2.
112
Draft Articles Commentary, Art. 9, §10.
113
See e.g. Agreement between the Government of Australia and the Government of the
Republic of Nauru relating to Appeals to the High Court of Australia from the Supreme
Court of Nauru, 6 September 1976, 1216 UNTS 151.
114
Constitution of the Cook Islands, Art. 71. After 1991, the constitution was amended to
reflect the inauguration of the Cook Islands’ own audit office.
134 attribution to the state

New Zealand authority as a consequence, although it eventually

denied immunity on other grounds.115
The European Commission of Human Rights had to consider the
question in two cases relating to the exercise by Swiss police officers in
Liechtenstein of ‘delegated’ powers.116 At the time of the decision, Liech-
tenstein was not a party to the European Convention on Human Rights
(ECHR),117 so if the conduct in question was attributable only to Liech-
tenstein, no breach of the Convention could have occurred. The Commis-
sion held the case admissible on the basis that pursuant to a treaty
governing relations between Switzerland and Liechtenstein of 1923,118
Switzerland exercised its own customs and immigration jurisdiction in
Liechtenstein, albeit with the latter’s consent and in their mutual inter-
est. The officers were thus operating in accordance with Swiss law and
considered to be exercising the governmental authority of Switzerland.
Consequently, they were not considered to be at the ‘disposal’ of
Liechtenstein.119
A similar suite of issues arose in the case of Drozd and Janousek.120 The
case concerned Andorra, a microstate whose joint heads of state, the
‘co-princes’, are the president of France and the bishop of Urgel in
Spain.121 As with Liechtenstein in X and Y, Andorra was not then a party
to the ECHR. The claimants were each sentenced to lengthy sentences by

115
KPMG Peat Marwick v. Davison, (1996) 104 ILR 526, 536–7 (Cooke P), 569, 574–6
(Richardson J). Further: Hastings, Angelo and Sage, (1996) 26 VUWLR 459. An appeal to
the Privy Council on other grounds was dismissed: Brannigan v. Davison, [1996] 3 WLR
859.
116
X and Y v. Switzerland, (1977) 20 ECommHR Ybk 402, 402–6.
117
European Convention for the Protection of Human Rights and Fundamental Freedoms,
4 November 1950, 213 UNTS 221.
118
Swiss Confederation–Liechtenstein Customs Union Treaty, 29 March 1923, 21 LNTS 232.
Further: Duursma, Fragmentation and the International Relations of Micro-states (1996),
160–70.
119
Similarly, the conduct of Italy in policing illegal immigration at sea pursuant to an
agreement with Albania was not attributable to Albania: Xhavara v. Italy and Albania,
[2001] ECtHR 39473/98. But cf. Turkey – Restrictions on the Imports of Textile and Clothing
Products, WT/DS34/R, 31 May 1999, §§9.33–9.44.
120
Drozd and Janousek v. France and Spain, [1992] ECtHR 12747/87.
121
Prior to the constitutional reforms of 1993, Andorra was considered to be a
condominium ruled jointly by France and Spain through the persons of two
‘co-princes’, the president of the French Republic (as successor to the Count of Foix) and
the bishop of Urgel. The events in Drozd and Janousek occurred under this regime.
Generally: Crawford, (1977) 55 RDISDP 259; Duursma (1996), ch. 7. As a result of the
1993 reforms, both ‘in their personal and exclusive right’ are still considered to be the
joint heads of the Andorran state with constitutional powers and functions:
Constitution of Andorra, Arts. 1, 43–9.
 organs and entities exercising authority 135

the Tribunal de Corts of Andorra. They elected to serve their sentence in

France and then brought proceedings against France and Spain, alleging
that they were responsible for deficiencies in the organization of the
Andorran courts, and that France was also responsible for their arbitrary
detention, which no French court had authorized.
The European Court of Human Rights drew a distinction between the
judicial process carried out in Andorra and the subsequent detention in
France. The former did not involve the exercise of governmental author-
ity either of France or of Spain. True, French and Spanish judges served
on the Andorran courts, but for that purpose they were formally
seconded and in their Andorran capacity they could not be considered
organs of France or Spain.122 The latter was defended by France on the
grounds that ‘an adequate legal basis was provided by international
custom and by the French and Andorran domestic law which imple-
mented that custom’. A narrow majority of the Court accepted that
view and dismissed the complaint. To impose on France responsibility
for ensuring that the original judgment complied with the ECHR
‘would . . . thwart the current trend towards strengthening international
co-operation in the administration of justice’; the only obligation of
France was not to participate in a ‘flagrant denial of justice’, of which
there was no sufficient evidence before the Court. Thus the majority
drew a distinction between the acts of French and Spanish officials
(including the co-princes) in their capacity as Andorran organs, and the
actions of France in giving effect to Andorran judgments: French respon-
sibility was only attracted by the latter, and only to a limited extent.123

4.4.2 Additional requirements

There are two further requirements on the operation of ARSIWA
Article 6.124 In the first place, it requires that the entity placed at the
disposal of another state be a state organ within the meaning of Article 4.
Thus Article 6 does not deal with experts from another state or an
international organization merely advising a government.125 It also
excludes the case of state organs sent to state B for the purposes of state
B, but which remain under the authority, direction and control of
state A, for example foreign military liaison or cultural missions,126
and foreign relief or aid organizations.
122 123
[1992] ECtHR 12747/87, §96. Ibid., §§106, 110.
124
ARSIWA Commentary, Art. 6, §5.
125
Draft Articles Commentary, Art. 9, §2; ARSIWA Commentary, Art. 6, §§4–5.
126
Draft Articles Commentary, Art. 9, §7.
136 attribution to the state

In the second place, Article 6 requires that the organ in question be

exercising the governmental authority of the receiving state. Thus if the
armed forces of state A were sent to state B and placed under the control
of state B to suppress an insurrection, the units in question would be
acting iure imperii on behalf of state B and their actions would be attrib-
utable to it. If, on the other hand, the armed forces were required to
distribute food supplies provided by non-governmental organizations
to various rural communities in state B, their conduct could not be
attributed (at least on that basis alone) to state B.

4.5 Ultra vires and personal acts

ARSIWA Article 7 deals with the subject of acts performed by organs
within the meaning of ARSIWA Article 4, or agents within the meaning
of ARSIWA Article 5, which exceed the brief given to the entity in question
by the state. By extension, the provision also applies to ARSIWA Article 6
and organs placed at the disposal of another state. Article 7 provides:
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 State under
international law if the organ, person or entity acts in that capacity, even if the
organ or entity acted in excess of authority or contrary to instructions.

Where an organ is created by the law of the state, it will necessarily be

given a range of powers. The same may be said of a private entity
empowered by law to exercise governmental authority. Within the
municipal sphere, a failure to act within authorized boundaries – that
is, an act ultra vires – does not prima facie excuse the state, and the validity
of the act may be challenged as a consequence: thus, the common law
doctrine of judicial review of executive and legislative acts. Similarly, the
mere fact that an organ or entity has exceeded its powers does not
exclude the responsibility of the state on the international plane. What
matters is the exercise of state authority, not its propriety. Thus, in the
Union Bridge Company case, a British officer appropriated American prop-
erty during the Boer War, mistakenly believing it to belong to a belliger-
ent. The British–American Claims Tribunal held that the fact that the
officer – who was authorized only to seize property belonging to belli-
gerents – was mistaken and his confiscation ultra vires was irrelevant to
the question of British responsibility.127

127
(1924) 2 ILR 170, 171.
 organs and entities exercising authority 137

However, a state is not responsible for every act done by an individual

in its service, but only when the individual purports to act on behalf of
the state. Where an individual does something in his or her capacity as a
private citizen, state responsibility will not arise. In the context of
ARSIWA Article 7, the difficulty lies in distinguishing an official, though
ultra vires, act from a purely private one. The locus classicus is the decision
of the French–Mexican Claims Commission in Caire.128 Caire, a French
national, kept a boarding house in Mexico City. One of his boarders was a
major attached to the Northern Division of the Conventionist forces
which at that time occupied the city. On 11 December 1914, the major
and two soldiers attempted to extort money from Caire under threat of
death. Caire refused. The major later reappeared with a captain of the
same brigade. They took Caire to their barracks where he was stripped;
from there he was driven to another village and shot. Notwithstanding
the private motivations of the perpetrators, the Commission held that
the two officers, even if they are deemed to have acted outside their competence . . .
and even if their superiors countermanded an order, have involved the responsi-
bility of the State, since they acted under cover of their status as officers and used
means placed at their disposal on account of that status.129

Apparently the difference between an ultra vires act that invokes state
responsibility and a strictly private act that does not is that the former is
performed using and cloaked by the authority provided to the entity by
the state. Thus, in Caire, the fact that the officers appeared at Caire’s
boarding house in uniform, and took him to an army barracks was
sufficient to render the act, although ultra vires, not merely private. As
the Draft Articles Commentary put it, ‘[i]n 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.’130
A further demonstration of the distinction is provided by the decision
of the Iran–US Claims Tribunal in Yeager v. Iran.131 There, the claimant
brought two complaints against the Iranian government, the first on the
basis of having unlawfully been required to pay extra money to an Iran
Air agent to get a prepaid air ticket issued, the second on the basis of a

128
Estate of Jean-Baptiste Caire v. Mexico (France/Mexico), (1929) 5 RIAA 516. The decision was
described as a ‘precise, detailed and virtually definitive formulation of the principles
applicable’: Draft Articles Commentary, Art. 10, §14. Also Crawford, First Report, 47.
129 130
(1929) 5 RIAA 516, 529. Draft Articles Commentary, Art. 10, §17.
131
(1987) 17 Iran–US CTR 92.
138 attribution to the state

shakedown performed by two uniformed officers of the Revolutionary

Guard performing the functions of customs, immigration and security
officers. Iran Air at the time was wholly state-owned, and the enterpris-
ing Iran Air agent was thus indirectly a state employee. In contrast, the
Revolutionary Guard had not yet been formally incorporated into the
Iranian state. The Tribunal held Iran liable for the actions of the latter,
but not the former. In its view, there was insufficient evidence to indi-
cate that the agent’s request for a bribe was made in anything other than
his capacity as a private individual:
Acts which an organ commits in a purely private capacity, even if it has used the
means placed at its disposal by the State for the exercise of its function, are not
attributable to the State . . . The critical question here, then, is whether the Iran
Air agent was acting in his official capacity as an organ of Iran Air when he
demanded the extra payment. There is no indication in this case that the Iran Air
agent was acting for any other reason than personal profit, or that he had passed
on the payment to Iran Air. He evidently did not act on behalf or in the interests
of Iran Air. The Tribunal finds, therefore, that this agent acted in a private
capacity and not in his official capacity as an organ for Iran Air.132

In contrast, the Tribunal held Iran responsible for the acts of the
Revolutionary Guards, who, unlike the Iran Air agent, did not solicit a
bribe, but simply seized the money, invoking the immigration and
customs powers entrusted to them by the Iranian state. The Tribunal said:
[The Revolutionary Guards] were, thus, obviously acting in their capacity as
‘organs’ of the new government, or at least acting on its behalf. Again, under
such circumstances the Respondent must show that it did not and could not
control the ‘Revolutionary Guards’ operating at the Airport. In the absence of
evidence that it made at least an attempt to enjoin their activity or to hinder
such seizure of cash, these acts are considered as attributable to the new
Government.133

The difference between the situation in Caire and the actions of the
Revolutionary Guards in Yeager on the one hand, and the Iran Air agent
in Yeager on the other is that the latter, although he was able to extract a
bribe by virtue of his position, did not hold himself out as acting on
behalf of the state. The soldiers in Caire were able to arrest their victim
through the exercise of state authority; the Revolutionary Guards
invoked their state power as customs officials. As was made clear in
another case of the Iran–US Claims Tribunal, Petrolane Inc. v. Iran,134

132 133 134

Ibid., 111. Ibid., 110. (1991) 27 Iran–US CTR 64, 92.
 organs and entities exercising authority 139

the Article 7 ‘extension’ of liability for acts done ultra vires is predicated
on the actions in question being done by ‘persons cloaked with govern-
mental authority’. It is this that differentiates the factual scenario in
Caire from a hypothetical alternative in which the major merely shot
Caire with his service pistol. As the commentary puts it,
The problem of drawing the line between unauthorized but still ‘official’ con-
duct, on the one hand, and ‘private’ conduct on the other, may be avoided if the
conduct complained of is systematic or recurrent, such that the State knew or
ought to have known of it and should have taken steps to prevent it. However,
this distinction between the two situations still needs to be made in some cases,
for example when considering isolated instances of outrageous conduct on the
part of persons who are officials. The distinction is reflected in the expression ‘if
the organ, person or entity acts in that capacity’ in article 7. This indicates that
the conduct referred to comprises only the actions and omissions of organs
purportedly carrying out their official functions, and not the private actions or
omissions of individuals who happen to be organs or agents of the State. In short,
the question is whether they were acting with apparent authority.135

Notwithstanding the relative clarity of the position, practical difficul-

ties remain, a point demonstrated by the Rainbow Warrior incident.136
The MV Rainbow Warrior was a former UK government trawler purchased
by the environmental activist organization Greenpeace. In 1985, while it
was moored in Auckland harbour in preparation for protests against
French nuclear testing on Mururoa Atoll, two agents of the French
intelligence service, the Direction Générale de la Sécurité Extérieure
(DGSE), attached explosive devices to the ship and detonated them,
destroying the vessel and killing a photographer on board. The agents –
Alain Mafart and Dominique Prieur – were carrying Swiss passports and
posing as tourists; they were arrested following interview by the New
Zealand police. France initially denied any connection with Mafart and
Prieur,137 but then reversed its position and admitted that the two were
DGSE agents. It continued to deny responsibility, however, on the basis
that neither the DGSE nor the French government at large had ordered
the attack.138

135
ARSIWA Commentary, Art. 7, §8.
136
Generally: Wexler, (1987) 5 BUILJ 389; Hoss and Morgan-Foster, ‘Rainbow Warrior,
The’, (2010) MPEPIL; Trapp (2011), 36–7.
137
Letter from the President of France to the Prime Minister of New Zealand, 8 August
1985, 74 ILR 262.
138
Trapp (2011), 36.
140 attribution to the state

Had this position been maintained, it would have led to a delicate

situation in which the French government admitted that Mafart and
Prieur were state organs within the meaning of ARSIWA Article 4, while
claiming that the bombing was a private act under ARSIWA Article 7. In
determining French responsibility, an international court would have
had to make the sensitive and practically challenging determination that
criminal (or even terrorist) conduct could fall within the official func-
tions of a state organ.139 Ultimately, the French government merely
acknowledged that the agents were acting in their official capacity as
DGSE operatives,140 and agreed with New Zealand to refer the contested
questions of their fate141 and of compensation to the UN Secretary-
General.142

139
Ibid.
140
Communiqué from the Prime Minister of France, 22 September 1985, 74 ILR 261.
141
Meanwhile they had been convicted of manslaughter by a New Zealand court:
R v. Mafart and Prieur, (1985) 74 ILR 241, 243.
142
Rainbow Warrior (New Zealand/France), (1986) 74 ILR 241, 256.
5 Direction or control by the state

5.1 Development of the law

Under the law of state responsibility, the conduct of private persons and
entities is not normally attributed to a state.1 Although for some pur-
poses the state is equated to its people (e.g. self-determination) or at least
its nationals (e.g. diplomatic protection, the Olympic medal tally), for the
purposes of responsibility the state is normally limited to the acts of its
organs and agents exercising public authority. But international law has
long acknowledged that, in certain circumstances, private action may be
attributable to a state if the entity in question has acted under the
instruction, direction or control of that state.2 The rationale behind this
is clear: by acting on behalf of the state, the private entity becomes ‘the
extended arm of the instructing State organ and therefore the attribu-
tion in the sense that the conduct is to be considered as State action is a
matter of consequence’.3 The international obligations of the state could
be easily evaded if this possibility of private delegation was not taken
into account.

5.1.1 Early cases

This principle that states could be held responsible for the conduct of
non-state actors was uncontested in the early cases,4 although some of
the decisions usually cited as authority actually concerned problems
1
ARSIWA Commentary, Art. 8, §1. See e.g. Finnish Shipowners (Finland/UK), (1934) 3 RIAA
1479, 1501: ‘These acts must be committed by the respondent Government or its officials,
since it has no direct responsibility under international law for the acts of private
individuals.’
2
See e.g. the Draft Articles Commentary, Art. 8, §7, referring to the notion as ‘practically
undisputed’. Also Crawford, First Report, 39–40; ARSIWA Commentary, Art. 8, §2.
3 4
Wolfrum (2005), 427. ILC Ybk 1971/II(1), 264.

141
142 attribution to the state

other than attribution. For example in The Zafiro,5 a British merchant-

man was requisitioned by the US Navy in Hong Kong. The original crew,
comprising British officers and Chinese sailors, shipped in the US mer-
chant service under the command of an American naval officer so as to
allow the Zafiro to access neutral ports in the furtherance of US naval
objectives. At one such port call in Cavite, which had been abandoned by
the Spanish, the Chinese crew of the ship obtained shore leave and
promptly rioted. The British–American Tribunal held that as the Zafiro’s
crew were effectively private citizens contracted to serve on board the
vessel, responsibility could not attach to the United States directly.
Responsibility could, however, be imputed on the basis that the US
officer in charge had failed to exercise due diligence:
The nature of the crew, the absence of a régime of civil or military control ashore,
and the situation of the neutral property, were circumstances calling for dili-
gence on the part of those in charge of the Chinese crew to see to it that they were
under control when they went ashore in a body.6

Another often-cited case is Stephens,7 which concerned an American

national shot by Lorenzo Valenzuela, an auxiliary of the Mexican state.
Valenzuela was arrested by the civilian authorities and handed over to
the Mexican army. When the auxiliaries were disbanded, however,
Valenzuela was mistakenly released. Although Valenzuela was at most
an irregular member of Mexico’s armed forces, without a uniform or
insignia, he was clearly acting on behalf of the Mexican state. The
Mexican–American Claims Commission accordingly ruled that ‘[t]aking
account of the conditions existing in Chihuahua then and there,
Valenzuela must be considered as, or assimilated to, a [Mexican] sol-
dier’,8 thus giving Valenzuela the status at least of a de facto organ
within the meaning of ARSIWA Article 4.
Two other incidents reflecting more directly the position eventually
taken by the ILC with respect to responsibility for non-state actors are
the cases of Black Tom and Kingsland,9 which concerned acts of purported
sabotage committed during the First World War, namely two fires which
damaged or destroyed the Black Tom railway terminal on New York
harbour, and plant of a car and foundry company at Kingsland in

5 6
(1925) 6 RIAA 160. Ibid., 164.
7
Charles S. Stephens and Bowman Stephens v. Mexico (US v. Mexico), (1927) 4 RIAA 265.
8
Ibid., 267.
9
Lehigh Valley RR Co. and Agency of Canadian Car and Foundry Co. Ltd v. Germany, (1930) 8 RIAA
84; (1939) 8 RIAA 225. Also (1931) 25 AJIL 147.
 direction or control by the state 143

New Jersey. At the time the fires occurred, the United States was still
neutral. These acts were alleged to have been committed by German
saboteurs, but the US–Germany Mixed Claims Commission did not con-
sider these assertions to have been made out on the facts. Had the
sabotage been proved, however, there was little doubt that Germany
would have been found responsible for the conduct of private citizens
it directed to carry out acts of arson on its behalf.

5.1.2 The work of the International Law Commission

On the basis of these early cases – some of them at least relevant to
attribution – a provision that would permit states to be held responsible
for the acts of private entities was introduced by Special Rapporteur
Ago,10 who noted:
The underlying principle of international law, which is increasingly becoming
clear as our analysis progresses, requires that the criterion [of responsibility]
should be the public character of the function or mission in the performance of
which the act or omission contrary to international law was committed, rather
than some formal link between the State organization and the person whose
conduct is in question. An act by the person most certainly invested with the legal
status [of] an organ of the State is still not an ‘act of the State’ if the person-organ
was acting only in a private capacity. Similarly, it is logical that the act of a private
person who, in one way or another, is performing a function or task of an obviously
public character should be considered as an act attributable to the community and
should engage the responsibility of the State at an international level.11

On this basis, Ago proposed the following wording for Draft Article 8:
The conduct of a person or group of persons who, under the internal legal order
of a State, do not formally possess the status of organs of that 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 inter-
national law.12

This provision was the subject of mild alteration by the Drafting

Committee, but its core notion of a person or group of persons acting
‘in fact . . . on behalf’ of the state found its way into Draft Article 8 on
first reading.13 It seems that Ago himself felt that the words ‘in fact’ in
10 11 12
ILC Ybk 1971/II(1), 267. Ibid., 264. Ibid., 267.
13
ILC Ybk 1974/II(1), 283:
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; or
144 attribution to the state

Draft Article 8 referred only to situations of actual instruction of a

private entity by a state.14 On the basis of the International Court’s
decision in Nicaragua,15 however, the provision was expanded to include
situations in which a private entity was under the ‘direction’ or ‘control’
of a state.16 This formulation was incorporated into ARSIWA Article 8
and has since been confirmed by the International Court as reflecting
customary international law.17 Article 8 reads as follows:
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, the State in carrying out the
conduct.
ARSIWA Article 8 posits two situations in which a state will be held
responsible for the acts of private entities: first, where the private entity
has been instructed by a state to perform the acts in question; and,
second, where the entity is under the direction or control of the state.
With respect to the latter, the failure by the ILC to specify a standard of
control vis-à-vis the private entity has led to a series of differing inter-
pretations as to the level of state oversight required, particularly as
reflected in the decisions of the International Court in Nicaragua and
Bosnian Genocide,18 and of the Appeals Chamber of the International
Criminal Tribunal for the former Yugoslavia (ICTY) in Tadic´.19

5.2 Persons acting on state instruction

The most clear-cut situation in which state responsibility arises under
ARSIWA Article 8 is where a state instructs a private person or entity to
do something on its behalf.20 As the commentary states:
(b) such person or group of persons was in fact exercising elements of the
governmental authority in the absence of the official authorities and in
circumstances which justified the exercise of those elements of authority.
Draft Art. 8(b) covered situations in which governmental authority was exercised by
private parties in the absence of official authorities. The latter notion was separated out
by the Drafting Committee on second reading and forms ARSIWA, Art. 9, on which see
further Chapter 6.
14
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Rep. 1986
p. 14, 188–9 (Judge Ago). Also Draft Articles Commentary, Art. 8, §8; Crawford, First
Report, 43.
15 16
Nicaragua, ICJ Rep. 1986 p. 14, 62. Crawford, First Report, 43.
17
Application of the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Rep.
2007 p. 43, 207.
18
Also Armed Activities in the Territory of the Congo (DRC v. Uganda), ICJ Rep. 2005 p. 168, 226.
19
Tadić , Appeal against Conviction, (1999) 124 ILR 61.
20
United States Diplomatic and Consular Staff in Tehran (US v. Iran), ICJ Rep. 1980 p. 3, 29–30.
 direction or control by the state 145

Most commonly cases of this kind will arise where State organs supplement their
own action by recruiting or instigating private persons or groups who act as
‘auxiliaries’ whilst remaining outside the official structure of the State. These
include, for example, individuals or groups of private individuals who, though
not specifically commissioned by the State and not forming part of its police or
armed forces, are employed as auxiliaries or are sent as ‘volunteers’ to neigh-
bouring countries, or who are instructed to carry out particular missions
abroad.21

A simple example of instruction arises in the context of private mili-

tary or security corporations hired by the state to engage in certain
activities on its behalf:22 where this occurs, the state may incorporate
instructions into the terms of the company’s contract or issue instruc-
tions in the field, or both.
Although the principle is clear enough, difficulties arise in its applica-
tion. In Bosnian Genocide, the International Court made an attempt at
further clarification, noting that for a state to incur Article 8 responsi-
bility, its instructions must have been given ‘in respect of each operation
in which the alleged violations occur, not generally in respect of the
overall actions taken by the persons or groups of persons having com-
mitted the violations’.23 This, however, gives rise to the question of how
the term ‘operation(s)’ is to be defined. Does the state need to direct the
entity to perform the specific act, or will a more general instruction
which leaves it open as a method of fulfilling the directive (or perhaps
implies a preference for it) suffice?24 The commentary indicates that the
latter position is correct,25 and that where ambiguous or open-ended
instructions are given, acts which are considered incidental to the task in
question or conceivably within its expressed ambit may be considered
attributable to the state:
Where a State has authorized an act . . . questions can arise as to the State’s
responsibility for actions going beyond the scope of the authorization . . . Such
cases can be resolved by asking whether the unlawful or unauthorized conduct
was really incidental to the mission or clearly went beyond it. 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 unlawful way. On the other

21
ARSIWA Commentary, Art. 8, §2. Also Draft Articles Commentary, Art. 8, §§2–3.
22
Lehnardt (2008), 148; Tonkin (2011), 114–17; Beaucillon, Fernandez and Raspail (2011),
406.
23
ICJ Rep. 2007 p. 43. 208.
24
Such as where a private military contractor is instructed to compel a detainee to divulge
information ‘by any means necessary’: Tonkin (2011), 115.
25
Tonkin (2011), 115; Beaucillon, Fernandez and Raspail (2011), 406.
146 attribution to the state

hand, where persons or groups have committed acts under the effective control
of a State the condition for attribution will be met even if particular instructions
may have been ignored.26

This paragraph is intended to draw a contrast between the instruction

of a free agent – who is thus not really an agent at all – and effective
control, implying a core relationship of subordination between the state
and its agent. But these are obviously formulas, and their application will
depend on the particular circumstances of the case in question.

5.3 Persons acting under direction or control

5.3.1 ‘Effective control’ versus ‘overall control’
In addition to ‘instruction’, ARSIWA Article 8 makes reference to respon-
sibility arising through the ‘direction’ or ‘control’ of a private entity by a
state. Although the commentary makes it clear that these terms are
intended to function disjunctively,27 courts and tribunals have tended
to interpret the words ‘direction or control’ as imposing a single stand-
ard of attribution.28
The ILC had the advantage of a number of decisions concerning direc-
tion and control between the first and second readings of the Articles.29
As a result, it felt sufficiently confident to expand Draft Article 8 beyond
attribution through instruction alone.30 The relationship between
ARSIWA Article 8 and these cases has been criticized by some as forming
a feedback loop wherein the ILC relied on these decisions in drafting
Article 8 and its associated commentary, which were in turn relied
26
ARSIWA Commentary, Art. 8, §8. The position here appears to have evolved slightly
from that of the Draft Articles, the Commentary to which referred to the need for the
entity to be appointed ‘to discharge a particular function or carry out a particular duty’:
Draft Articles Commentary, Art. 8, §8.
27
ARSIWA Commentary, Art. 8, §7.
28
Cf. Cassese, (2007) 18 EJIL 649, 663, who suggests that although disjunctive, ‘instruction’
and ‘direction’ possess a greater affinity than ‘direction’ and ‘control’. ‘Direction’
implies a continuing period of instruction, or a relationship between the state and a
non-state entity such that suggestion or innuendo may give rise to responsibility, e.g. in
the case of Henry II of England exclaiming in relation to Archbishop Thomas à Becket,
‘What miserable drones and traitors have I nourished and brought up in my household,
who let their lord be treated with such shameful contempt by a low-born cleric?’ The
outcome is well known: Schama, 1 A History of Britain (2000), 142.
29
Principally Nicaragua and Tadić , but also decisions of the ECtHR such as Loizidou v. Turkey,
(1996) 108 ILR 443, and of the Iran–US Claims Tribunal, such as Yeager v. Iran, (1987) 17
Iran–US CTR 92. Further: Crawford, First Report, 41–2.
30
Crawford, First Report, 43.
 direction or control by the state 147

on by the International Court in arguing that its earlier position reflects

customary international law.31
These criticisms reflect part of a wider debate concerning the level of
control required in customary international law for attribution to occur.
ARSIWA Article 8 itself does not specify this, and the field has subse-
quently divided between the ‘effective control’ test devised by the Inter-
national Court in Nicaragua and affirmed tangentially in Armed Activities
and more forcefully in Bosnian Genocide, and the ‘overall control’ test
formulated by the ICTY Appeals Chamber in Tadic´ and reaffirmed in
the later case law of that tribunal.

5.3.2 Nicaragua
Nicaragua centrally concerned the question whether violations of inter-
national humanitarian law committed by various private individuals
(the ‘contras’) during the Nicaraguan civil war could be attributed to
the United States.32 For this purpose, the Court identified three forms
of ‘private’ conduct of increasing specificity that could generate US
responsibility with respect to the contras:33 the paramilitary campaign
in general, specific paramilitary operations, and violations of inter-
national humanitarian law committed by the contras in the course of
specific operations.
The key background finding was that although the United States did
not ‘create’ the contra force,34 it was responsible for financing it35 and for
providing logistical support to the movement.36 It had further trained
the contras and provided them with intelligence as to Sandinista troop
movements.37 The Court further found that some contra operations had
been planned in conjunction with US military advisers,38 and that the
United States had identified suitable targets for contra attacks.39

31
These criticisms are particularly heightened with respect to the decisions of the
International Court in Nicaragua and Bosnian Genocide: Cassese (2007), 651; Dinstein
(2011), 222–3.
32
Generally: Maier (ed.), (1987) 81 AJIL 77; Crawford, ‘Military and Paramilitary Activities
in and against Nicaragua case (Nicaragua v. United States)’, (2006) MPEPIL; Crawford,
(2012) 25 LJIL 471.
33
Being the paramilitary groups created out of the remnants of Somoza’s National Guard
who fled to Honduras in the wake of the Sandinista insurrection and later reorganized as
a guerrilla insurgency with the help of the CIA under the Reagan administration:
Bulmer-Thomas, in Bethell (ed.), The Cambridge History of Latin America (1990) 317, 353–65.
34 35
Nicaragua, ICJ Rep. 1986 p. 14, 61–2. Ibid., 59, 61.
36
Via provision of uniforms, ammunition and military equipment: ibid., 59.
37 38 39
Ibid., 59–61. Ibid., 61. Ibid., 62, 64–5.
148 attribution to the state

The Court found that the United States could not be held responsible
for contra actions en bloc, basing this conclusion on the fact that the
United States did not exercise a sufficient level of control (i.e. ‘complete
dependence’40) over the contras such that any act performed by them
could be attributed to the United States without the need for further
enquiry. The Court said:
What the Court has to determine at this point is whether or not the relationship
of the contras to the United States Government was so much one of dependence
on one side and control on the other that it would be right to equate the contras
for legal purposes, with an organ of the United States Government, or as acting
on behalf of that Government . . . [T]here is no clear evidence of the United States
having actually exercised such a degree of control in all fields as to justify
treating the contras as having acted on its behalf.41

In Bosnian Genocide these conclusions were correctly identified as

developing the notion of a ‘de facto organ’ in the context of ARSIWA
Article 4.42 Such an organ is based on the concept of ‘complete’ control
such that the entity in question has ‘no real autonomy’ but is function-
ally part of the state. It is thus external to ARSIWA Article 8.43
With respect to the specific operations of the contras (e.g. the targeting
of a particular Sandinista installation), Nicaragua’s pleadings failed to
identify US support for individual contra missions;44 instead, they
defined US involvement in the contra movement in general.45 Accord-
ingly, the Court held that the United States had breached the prohibition
of the use of force as contained within customary international law on
the basis of its direct support of the contras.46 It did not, however,
attempt to establish whether specific contra operations could be attrib-
uted to the United States.47

40 41
Ibid., 62. Ibid., 62.
42
Bosnian Genocide, ICJ Rep. 2007 p. 43, 205. For criticism of this development, see Griebel
and Plücken (2008); contra Milanovic´ (2009). Further: Chapter 4.
43
Cf. de Frouville, in Crawford, Pellet and Olleson (2010) 257, 268–9, who considers the
intermingling of forms of attribution unconvincing.
44
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), Memorial of
Nicaragua (Merits), 30 April 1985, 12–15.
45
Ibid., 70–1.
46
Nicaragua, ICJ Rep. 1986 p. 14, 118–19. Cf. Tadic´, (1999) 124 ILR 31, 195–7 (Judge
Shahabuddeen).
47
Cf. the discussion of operations carried out directly by US personnel or ‘Unilaterally
Controlled Latin Assets’, such as, inter alia, the destruction of the underwater pipeline
and terminal at Puerto Sandino on 13 September 1983, the destruction of oil storage
facilities at Benjamin Zeladon on 2 October 1983 and the mining of Nicaraguan
harbours: Nicaragua, ICJ Rep. 1986 p. 14, 46–51.
 direction or control by the state 149

For present purposes, however, the most relevant part of the Court’s
analysis concerned US responsibility for breaches of international
humanitarian law by the contras in the course of particular operations.
Here, the Court elaborated what has come to be known as the ‘effective
control’ standard of attribution, holding that the general control that the
United States had exercised (i.e. the provision of the training and finan-
cial, logistical and intelligence support) over the contras did not provide a
sufficient basis for state responsibility. It said:
United States participation, even if preponderant or decisive, in the financing,
organising, 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 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.48

Rather, the Court said, for responsibility to attach to the United States, it
had to be shown that it possessed ‘effective control of the military or
paramilitary operations in the course of which the alleged violations
were committed’.49 The Court did not seek to define the standard of
control further, but noted that US participation in the activities of the
contras – although extensive – was insufficient for this purpose.50 In
particular, it placed great reliance on the fact that the forms of partici-
pation of the United States did not prima facie imply that the United
States directed and enforced the perpetration of acts contrary to inter-
national law: ‘such acts could well have been committed by the members
of the contras without the control of the United States’.51 This conclusion
was supported vigorously in the Separate Opinion of Judge Ago.52

5.3.3 Tadic´
5.3.3.1 The Trial Chamber
The decision in Nicaragua was subsequently the subject of consideration
by the Trial and Appeal Chambers in the Tadic´ case.53 Duško Tadic´ was
a guard in one of the Bosnian internment camps in and around Prijedor
in Bosnia-Herzegovina, and was involved in the massacre of some

48 49
Ibid., 64. Ibid., 65 (emphasis added).
50
Ibid.: ‘The Court does not consider that the assistance given by the United States to the
contras warrants the conclusion that these forces are subject to the United States to such
an extent that any acts they have committed are imputable to that State.’
51 52
Ibid., 64–5. Ibid., 189. Further: Crawford, First Report, 40.
53
Tadić , ICTY Case No. IT-94-1-T, Trial Chamber, 7 May 1997.
150 attribution to the state

14,000 people (including some 5,200 Bosniaks and Croats). He was

charged with participation in war crimes and crimes against humanity
under the ICTY Statute.54
As an international criminal tribunal with jurisdiction limited to
individuals, the ICTY would not ordinarily be considered competent to
address questions of state responsibility. In Tadic´, however, the ICTY
treated state responsibility as an antecedent question in order to deter-
mine a question unequivocally within its jurisdiction, namely the dis-
tinction between an international and non-international armed
conflict.55 It mattered on the facts in that the grave breaches regime of
the 1949 Geneva Conventions, as applied by Article 2 of the ICTY Statute,
extends only to armed conflicts of an international character.
In defining the war in Bosnia-Herzegovina as national or international,
the trial chamber assessed the relationship between the three Bosnian
parties to the conflict (Bosnian Muslims, Croats and Serbs) and the
external influence of Serbia (at the time, with Montenegro, the Federal
Republic of Yugoslavia (FRY)) and Croatia. In the event that the FRY or
Croatia could be found to be responsible for the activities of private
entities operating within Bosnia, the conflict would be considered inter-
national in character.56 In particular, the trial chamber focused on the
acts of Republika Srpska, an entity opposed to the independence of
Bosnia and Herzegovina.57
A majority of the trial chamber turned to Nicaragua in determining
whether the FRY could be held responsible for the acts of Republika
Srpska, but without clearly distinguishing between the tests of ‘com-
plete’ and ‘effective’ control set down by the International Court.58 The
majority found that Republika Srpska, while an ally of the FRY and
dependent on its assistance, could not be considered to be under the
direction or control of the latter. In this respect, parallels with the
contras’ relationship with the US were clearly evident:
In sum, while, as in the Nicaragua case, the evidence available to this Trial
Chamber clearly shows that the ‘various forms of assistance provided’ to the

54
SC Res. 827 (1993), Annex, Arts. 2, 3, 5.
55
Tadić , ICTY Case No. IT-94-1-T, Trial Chamber, 7 May 1997, 199–217. Also Milanovic´
(2006), 578. Further: Cullen, The Concept of Non-international Armed Conflict in International
Humanitarian Law (2010).
56 57
Tadić , ICTY Case No. IT-94-1-T, Trial Chamber, 7 May 1997, 200. Ibid., 204–8.
58
Ibid., 206. The trial chamber also failed to note that the Court in Nicaragua had not
sought to use state responsibility as a device to establish the international character of
the conflict: Milanovic´ (2006), 578–9.
 direction or control by the state 151

armed forces of the Republika Srpska by the [FRY] was ‘crucial to the pursuit of
their activities’ and, as with the early years of the contras’ activities, those forces
were almost completely dependent on the supplies of the [army of the FRY] to
carry out offensive operations, evidence that the [FRY] through [its army] ‘made
use of the potential for control inherent in that dependence’, or was otherwise
given effective control over those forces and which it exercised, is similarly
insufficient.59

In the view of Presiding Judge McDonald, dissentient, the FRY could be

held responsible for the acts of Republika Srpska on the basis that the
latter was under the complete control of the former and should be
considered a de facto organ of the FRY.60 In so doing, Judge McDonald
drew an effective distinction between the two tests posited by the Court
in Nicaragua.61

5.3.3.2 The Appeals Chamber

On appeal by the prosecution, the Appeals Chamber revisited the trial
chamber’s consideration of Nicaragua.62 The trial chamber’s decision to
employ state responsibility to determine the international dimension of
the conflict was affirmed,63 but the Appeals Chamber criticized the
lower tribunal’s reliance on Nicaragua. Rather, the Appeals Chamber
argued that the notion of an effective control test was contrary to the
‘logic’ of the law of state responsibility.64 It said:
The rationale behind this rule is to prevent States from escaping international
responsibility by having private individuals carry out tasks that may not or
should not be performed by State officials, or by claiming that individuals actu-
ally participating in governmental authority are not classified as State organs
under national legislation and therefore do not engage State responsibility. In
other words, States are not allowed on the one hand to act de facto through
individuals and on the other to disassociate themselves from such conduct when
these individuals breach international law. The requirement of international law

59
Tadić , ICTY Case No. IT-94-1-T, Trial Chamber, 7 May 1997, 216.
60
Ibid., 299; ‘[The FRY] established what is essentially a puppet regime in the VRS, which
was charged with the responsibility for executing the military operations of the [FRY] in
Bosnia and Herzegovina.’
61 62
Ibid., 295–6. Tadic´, Appeal against Conviction, (1999) 124 ILR 61, 98–121.
63
Ibid., 98–101.
64
Ibid., 108–11. It was also to argue that the test of effective control was at odds with state
and judicial practice relying on its reading of cases such as Tehran Hostages, ICJ Rep. 1980
p. 3; Yeager v. Iran, (1987) 17 Iran–US CTR 92; Loizidou v. Turkey, (1996) 108 ILR 443; and
Jorgic v. Germany, 26 September 1997, 2 StE 8/96, unpublished typescript provided to the
ICTY (on appeal: (2000) 135 ILR 152): Tadic´, Appeal against Conviction, (1999) 124 ILR 61,
111–21. Further: Milanovic´ (2006), 585–7; cf. Cassese (2007), 658 n. 17.
152 attribution to the state

for the attribution to States of acts performed by private individuals is that the
State exercises control over the individuals. The degree of control may, however,
vary according to the factual circumstances of each case.65

On this basis, the Appeals Chamber drew a distinction between the level
of state control required with respect to an individual or non-organized
group as opposed to an ‘organized and hierarchically structured group’: in
the former case, only specific instructions will cause responsibility to
accrue, whereas in the latter, overall control would suffice.66 The Chamber
drew an analogy here with Draft Article 10, and the capacity for states to
be held responsible for the actions of their organs, even if such acts were
performed ultra vires.67 It considered the requisite level of control to be
established where a state ‘has a role in organising, co-ordinating or planning
the military actions of the military group, in addition to financing, training
and equipping or providing operations support to that group’.68
If a state’s control over an organized non-state group of actors is
complete, there is no need to inquire as to what the group has done.
Where that level of control is not present, however, the court or tribunal
will need to investigate the particular act in question. In contrast, the
Appeals Chamber in Tadic´ substitutes for complete control (and the
attendant presumption of automatic attribution) the reduced standard
of overall control.69 The effect is to render the distinction between organs
of the state and non-organs illusory, at least for purposes of attribution.
The ICTY considered the position taken by the Appeals Chamber to be
correct as a matter of law, and applied it systematically in its jurispru-
dence.70 But the majority reasoning in the Appeals Chamber was

65
Ibid., 108–9. This position was based on Ago’s version of Draft Art. 8 as adopted on first
reading, which concerned a private actor acting in fact on behalf of a state without
further elaboration. The Appeals Chamber’s reliance on Draft Art. 8 in this context is
misplaced, given that under Ago’s original conception, it was intended to apply in
circumstances of actual instruction only: Nicaragua, ICJ Rep. 1986 p. 14, 188–9 (Judge
Ago). Also Draft Articles Commentary, Art. 8, §8; Crawford, First Report, 43.
66
Tadić , Appeal against Conviction, (1999) 124 ILR 61, 109. The Chamber also identified,
but discussed only briefly, a third criterion of responsibility drawn from precedents in
criminal law, namely where a non-state actor participates in state activities with the
appearance of a state organ: ibid., 118–21. Further: Cassese (2007), 657.
67
Tadić , Appeal against Conviction, (1999) 124 ILR 61, 110.
68
Ibid., 119 (emphasis in original).
69
De Hoogh, (2001) 72 BYIL 255, 279–81; Milanovic´ (2006), 581.
70
See e.g. Prosecutor v. Aleksovski, ICTY Case IT-95-14/I-T, Trial Chamber, 25 June 1999;
Prosecutor v. Aleksovski, ICTY Case IT-95-14/I-A, Appeals Chamber, 24 March 2000;
Prosecutor v. Blaškic´, ICTY Case IT-95-14/T, Trial Chamber, 3 March 2000; Prosecutor v.
Naletilić , ICTY Case IT-98-34-T, Trial Chamber, 31 March 2003; Prosecutor v. Kordic´ and
 direction or control by the state 153

criticized in the Separate Opinion of Judge Shahabuddeen, who noted the

different contexts of the decisions: while Nicaragua had considered the
matter from a pure state responsibility perspective, Tadic´ was dealing
with individual criminal responsibility.71 He further noted that the
relevant question – which was distinguishable – was whether the FRY
was using force through Republika Srpska’s armed forces against Bosnia-
Herzegovina, not whether it was responsible for any breaches of inter-
national law committed by Republika Srpska or its forces.72 As Tonkin
notes, this view is persuasive:
There is no compelling reason why the same test must apply to, on the one hand,
the question of whether a state is acting through a private individual for the
purpose of ascertaining the applicable rules of [humanitarian law] and, on the
other, the question of whether a state is acting through a private individual for
the purpose of establishing state responsibility. The former is determined by the
primary rules of international law, which govern the substantive obligations on
states, whereas the latter is determined by the secondary rules of international
law, which govern the circumstances in which states will be considered respon-
sible for wrongful conduct and the legal consequences flowing from that
responsibility.73

Additional questions arise from the Appeals Chamber’s development

of distinct tests for state responsibility for individuals and non-organized
groups on the one hand and organized and hierarchical groups on the
other.74 The Chamber based its less stringent standard with respect to
the latter on the argument that ‘a member of the group does not act on
his own but conforms to the standards prevailing in the group and is
subject to the authority of the head of the group’ and that ‘[c]onse-
quently, for the attribution to a State of acts of these groups it is suffi-
cient to require that the group as a whole be under the overall control of
the State.’75 But if overall control within the meaning of Tadic´ is gained
by a state through financing, training, advising a group and planning
their activities (while not explicitly instructing them) it is difficult to
see how these actions would lead to a different conclusion vis-à-vis

Čerkez, ICTY Case IT-95-14/2-T, Trial Chamber, 26 February 2001; Prosecutor v. Kordic´ and
Čerkez, ICTY Case IT-95-14/2-A, Appeals Chamber, 17 December 2004; Prosecutor v. Delalic´
et al., ICTY Case IT-96-21-A, Appeals Chamber, 20 February 2001. Further: La Haye, War
Crimes in Internal Armed Conflicts (2008), 15–19.
71
Tadić , Appeal against Conviction, (1999) 124 ILR 61, 198.
72
Ibid. This point was made by the ILC itself: ARSIWA Commentary, Art. 8, §5.
73
Tonkin (2011), 118–19. Also de Frouville (2010), 270.
74
De Frouville (2010), 270–1.
75
Tadić , Appeal against Conviction, (1999) 124 ILR 61, 109. Also ibid., 116–18.
154 attribution to the state

responsibility in their application to an individual, that is, a single

terrorist. It is for this reason that the ARSIWA themselves draw no
distinction in the text or Commentary between the control exercised
by the state over an individual or over a group.

5.3.4 Bosnian Genocide

The International Court returned to the issue of state responsibility for
non-state actors in Bosnian Genocide. Meanwhile, the ARSIWA had been
adopted. The commentary mentioned the decisions in Nicaragua and
Tadic´, but declined to take a firm position, distinguishing the latter on
the basis that it did not strictly involve state responsibility (as distinct
from the applicable law) and that, in any event, ‘it is a matter for
appreciation in each case whether particular conduct was or was not
carried out under the control of a State, to such an extent that the
conduct controlled should be attributed to it’.76
The first indication that the International Court disagreed with the
treatment of Draft Article 8 in Tadic´ came in the Armed Activities case. The
Court there was called upon to decide whether the conduct of certain
auxiliaries operating in the Democratic Republic of the Congo could be
attributed to Uganda. It held that the required level of instruction,
direction or control within the meaning of the provision had not been
made out on the facts, citing Nicaragua in support.77
In Bosnian Genocide, a more concerted effort to engage with these two
cases was made, with the Court endorsing Nicaragua emphatically and
rejecting the criticism of that decision by the ICTY in Tadic´.78 The case
arose out of the same conflict as Tadic´:79 the question was whether the
FRY (and, later, Serbia) was responsible for acts of genocide committed
by Bosnian Serb militias during the Bosnian War. The Court applied
ARSIWA Article 8 and explicitly stated that it was to be understood in
the light of its previous decision in Nicaragua: moreover the particular
characteristics of genocide as an international crime did not justify a
departure from the effective control test.80 The Court again criticized the
76
ARSIWA Commentary, Art. 8, §5. It is worth pointing out, however, that when ‘control’
first made its way into the ARSIWA, it was tied to the formulation of the concept in
Nicaragua: Crawford, First Report, 40–1. Also Dinstein (2011), 222–3; Tonkin (2011), 118.
77
Tadić was not referred to: Armed Activities (DRC v. Uganda), ICJ Rep. 2005 p. 168, 226.
78
For criticism: Cassese (2007).
79
Generally: Schabas, ‘Application of the Convention on the Prevention and Punishment of
the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro)’, (2008)
MPEPIL.
80
ICJ Rep. 2007 p. 43, 208.
 direction or control by the state 155

decision of the Appeals Chamber in Tadic´, echoing Judge Shahabudd-

een’s argument that the question ‘was not indispensable in the exercise
of [the ICTY’s] jurisdiction’, and noting that, while the ICTY was to be
considered an authority on international criminal law, this expertise did
not extend to ‘issues of general international law which do not lie within
the specific purview of its jurisdiction and, moreover, the resolution of
which is not always necessary for deciding the criminal cases before it’.81
The Court then moved to consider the overall control test directly,
conceding that the test may well be appropriate for determining whether
an armed conflict ought to be classified as national or international, but
stressing that there was no reason why the primary norms of inter-
national humanitarian law and the secondary rules of state responsi-
bility need to align in this way.82 The Court stated that, in any event, the
overall control test was unsuitable for application in a state responsi-
bility context on the basis that the responsibility so produced was overly
broad. It said:
[T]he ‘overall control’ test has the major drawback of broadening the scope of
State responsibility well beyond the fundamental principle governing the law of
international responsibility: a State is responsible only for its own conduct, that
is to say the conduct of persons acting, on whatever basis, on its behalf. That is
true of acts carried out by its official organs, and also by persons or entities which
are not formally recognized as official organs under internal law but which must
nevertheless be equated with State organs because they are in a relationship of
complete dependence on the State. Apart from these cases, a State’s responsibility
can be incurred for acts committed by persons or groups of persons – neither
State organs nor to be equated with such organs – only if, assuming those acts to
be internationally wrongful, they are attributable to it under the rule of custom-
ary international law reflected in [ARSIWA Article 8]. This is so where an organ of
the State gave the instructions or provided the direction pursuant to which the
perpetrators of the wrongful act acted or where it exercised effective control over
the action during which the wrong was committed. In this regard the ‘overall
control’ test is unsuitable, for it stretches too far, almost to breaking point, the
connection which must exist between the conduct of a State’s organs and its
international responsibility.83

Thus the Court determined the application of ARSIWA Article 8 to the

FRY ‘on the basis of its settled jurisprudence’,84 applying the test in

81 82
Ibid., 209. Ibid., 210.
83
Ibid. Cf. ibid., 257 (Judge Al-Khasawneh), arguing that ‘different types of activities,
particularly in the ever-evolving nature of armed conflict, may call for subtle variations
in the rules of attribution’.
84
Ibid., 210.
156 attribution to the state

Nicaragua to determine that the evidence did not support a finding of FRY
instruction, direction or effective control with respect to acts of genocide
in Bosnia committed by non-state actors.85
So far as the law of state responsibility is concerned, this determin-
ation effectively ends the debate as to the correct standard of control to
be applied under Article 8. Moreover it does so in a manner that reflects
the ILC’s thinking on the subject from the time the term ‘control’ was
introduced into then-Draft Article 8.

5.4 State responsibility and terrorism

5.4.1 The alleged inadequacy of the effective control test
After some four decades of drafting and debate, the ARSIWA were
approved by the ILC and presented to the UN General Assembly in
August 2001. Just over a month later, the attacks by Al-Qaeda on targets
in New York and Washington, DC, presented a major new challenge for
the law of state responsibility, in the context of terrorist groups ‘har-
boured’ within the borders of states.
The suggestion that the law of state responsibility was not sufficiently
well equipped to deal with terrorism had arisen prior to 11 September
2001,86 but the attacks gave the issue special impetus and led to a
number of further analyses.87 These critiques often centre on the prop-
osition that the effective control test posited in Nicaragua sets the bar too
high, such that attribution of terrorist acts to the state proves well nigh
impossible.88 This is coupled on occasion with the suggestion that the
test of overall control advanced by the Appeals Chamber in Tadic´ would
better meet the needs of the international community in dealing with
the threat of terrorism.89 As Cassese remarks,
[A]pplying . . . the ‘effective control’ criterion to such actions would prove very
exacting and, in addition, raise serious problems of evidence . . . If one instead
relies upon the ‘overall control’ test, it suffices to demonstrate that certain

85
Ibid., 214.
86
See e.g. Condorelli, (1989) 19 Is. YBHR 233, 237–40; Reisman (1999), 39.
87
See e.g. Slaughter and Burke-White (2002), 19–20; Chase (2004–5), 118–25; Trapp (2011),
ch. 2. On the adequacy of ARSIWA, Art. 8 in general, see Wolfrum (2005), 427–32. Cf.
Becker (2006), ch. 7, who argues that the entire ‘agency’ model of responsibility in this
respect is flawed, and proposes instead a causation-based model of responsibility: ibid.,
chs. 8, 9.
88
Slaughter and Burke-White (2002), 19–20; Chase (2004–5), 120.
89
Cassese (2007), 665–7; Trapp (2011), 44–5.
 direction or control by the state 157

terrorist units or groups are not only armed or financed (or also equipped and
trained) by a specific state or benefit from its strong support, but also that such
[a] state generally speaking organizes or coordinates or at any rate takes a hand in
coordinating or planning its terrorist actions (not necessarily each individual
terrorist operation). It would then be relatively easy to infer from these links
that the state at issue bears responsibility for those terrorist activities. In short,
on the strength of the ‘overall control’ test, it would be less difficult to attribute
those actions to the state in question.90

Alternatively, some commentators support a reading of ARSIWA

Article 8 that permits a more flexible standard of control.91 This position
is shared by some states and jurists:92 for example, on the adoption of
the ARSIWA, the Netherlands welcomed the omission of an explicit
standard of control from the words of ARSIWA Article 8 and its commen-
tary, seeing this as permitting both the Nicaragua and Tadic´ test to
operate simultaneously as appropriate.93 Moreover, it was thought that
‘[t]his inbuilt ambiguity is a positive element and offers scope of progres-
sive development of the legal rules on State responsibility’.94 Another
position, described by Jinks, is that the customary law of responsibility
has been altered by state practice so as to permit attribution in circum-
stances where states were merely harbouring terrorists.95 The insistence
by the Court in Bosnian Genocide that the effective control test represents
the only basis of attribution under ARSIWA Article 8 stands in sharp
contrast to these positions.96

5.4.2 Alternate bases of state responsibility with respect to terrorism

Moreover, such criticisms miss the point. As significant an obstacle as
the combined position of Nicaragua and Bosnian Genocide may be to state
responsibility with respect to terrorism, a modification to the effective
control test is not required in order for states to be found responsible.
Nor is it desirable. As Trapp notes, an artificial attempt to hold states
liable for acts of terrorism may do more harm than good:
While a wrongdoing state’s responsibility is not invoked as often as it might be in
the terrorism context . . . holding states responsible as a matter of law for more

90 91
Cassese (2007), 666. Trapp (2011), 42.
92
See e.g. Blaškic´, ICTY Case IT-95-14-T, Trial Chamber, 3 March 2000, 271ff. (Judge
Shahabuddeen); Bosnian Genocide, ICJ Rep. 2007 p. 43, 257 (Vice-President Al-Khasawneh,
diss.).
93 94 95
ILC Ybk 2001/II(1), 49. Ibid. Jinks (2003), 88–90.
96
ICJ Rep. 2007 p. 43, 208–9. This position does not preclude the development of a special
rule of attribution ratione personae via treaty: see further Chapter 4.
158 attribution to the state

than they are responsible for as a matter of fact will certainly not encourage more
reliance on the regime of state responsibility as a mechanism for re-establishing
the primary legal relationship between injured and wrongdoing states.97
Rather than artificially broadening the scope of ARSIWA Article 8 to
solve attribution problems with respect to terrorism, the preferable
approach is to rely on primary norms of international law to permit
direct attribution to the state. To this end, an array of customary and
treaty-based norms exist which render state participation in or co-
ordination of terrorist acts an international wrong for which state
responsibility may arise under ARSIWA Article 4.98
In the first place, states remain under an enduring customary duty of
prevention with respect to terrorist acts planned and launched from
within their borders, namely an obligation on states not to ‘allow know-
ingly [their] territory to be used for acts contrary to the rights of other
States’,99 subject to a due diligence standard of conduct. The obligation
extends not only to the territory of the state, but also those situations in
which a state exercises exclusive jurisdiction over a territory for example
as an occupant100 or otherwise on a temporary basis.101 States also have
the duty of controlling individual actions on board ships102 and air-
craft103 of their nationality.
The same obligation of due diligence exists with respect to genocide,
and was the basis on which Serbia and Montenegro were eventually
found liable in Bosnian Genocide, notwithstanding the Court’s rejection
of direct responsibility under ARSIWA Article 8. The Court indicated that
the obligation was one of conduct, not of result, saying:
A State does not incur responsibility simply because the desired result is not
achieved; responsibility is however incurred if the State manifestly failed to take

97
Trapp (2011), 61, and, more generally, ibid., 45–61. Also Jinks (2003), 91–4.
98
Condorelli (1989), 240–1; Becker (2006), ch. 4; Trapp (2011), ch. 3.
99
Corfu Channel (UK v. Albania), ICJ Rep. 1949 p. 4, 22. Also Spanish Zone of Morocco (Spain/
United Kingdom), (1925) 2 RIAA 615; Island of Palmas (Netherlands/US), (1928) 2 RIAA 829.
100
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Rep. 1971 p. 16, 54:
The fact that South Africa no longer has any title to administer the Territory does
not release it from its obligations and responsibilities under international law
towards other States in respect of the exercise of its powers in relation to this
Territory. Physical control of a territory, and not sovereignty or legitimacy of
title, is the basis of State liability for acts affecting other States.
101
Condorelli (1989), 241.
102
United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, Art. 94.
103
Convention on Offences and Certain Other Acts Committed on Board Aircraft, 14
September 1963, 704 UNTS 219, Art. 3(1).
 direction or control by the state 159

all measures to prevent genocide which were within its power, and which might
have contributed to preventing the genocide. In this area the notion of ‘due
diligence’, which calls for an assessment in concreto, is of critical importance.104

The question whether the state failed to fulfil its obligations of due
diligence is informed by what it knew or ought to have known at the
time at which the act took place,105 and whether it had a genuine
capacity to act so as to avert the threat.106 Since the 9/11 attacks, there
has perhaps been a decrease in the margin of appreciation that states had
previously enjoyed in setting and meeting their internal priorities with
respect to terrorism.107
A further ground on which states may be held responsible for the
active support of terrorist groups and other non-state actors (as opposed
to merely tolerating them within the state’s territory) was discussed in
Nicaragua. Although lack of effective control on the part of the United
States meant that it was not held responsible for the acts of the contras as
such, the support that it provided – and particularly the arming and
training of the contras – was held to constitute a breach of the prohibition
of the use of force.108
States may also be subject to treaty obligations with respect to terror-
ism arising from the various sectoral terrorism conventions, which have
been widely ratified. The sectoral conventions place a number of
common obligations on states parties. For example, under the Inter-
national Convention for the Suppression of Terrorist Bombings109
(TBC), states must, inter alia, criminalize terrorist bombing within the
meaning of TBC Article 1 and ensure the provision of appropriate penal-
ties (TBC Article 3), ensure that such bombings cannot be legally justified
by political, philosophical, ideological or other considerations (TBC
Article 5), establish jurisdiction over such offences where required
(TBC Article 6), take steps to investigate (TBC Article 7) and, where
prosecution does not take place, extradite the suspect to a jurisdiction
that is willing to do so (TBC Article 8).110 States are also under an

104 105 106

ICJ Rep. 2007 p. 43, 221. Trapp (2011), 66–70. Ibid., 70–5.
107
Ibid., 77–9.
108
Nicaragua, ICJ Rep. 1986 p. 14, 118–19. The Court added that the mere provision of
funds to the contras alone was insufficient to qualify as a breach of the use of force,
though it was held to be an intervention in Nicaragua’s internal affairs: ibid., 119.
109
15 December 1997, 2149 UNTS 256.
110
See Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment
of 20 July 2012, §§71–117. Also Scharf, ‘Aut dedere aut iudicare’, (2008) MPEPIL;
Brownlie’s Principles, 469–71.
160 attribution to the state

obligation to take all practicable measures to prevent and counter prep-

arations in their respective territories for the commission of terrorism
bombings anywhere (TBC Article 15). Self-evidently, the sponsorship of
or the granting of safe harbour to a terrorist group either before or after
a bombing would constitute a breach of the TBC, resulting in state
responsibility under ARSIWA Article 4.
Another legislative technique which has been employed in the fight
against terrorism is Chapter VII of the UN Charter. Thus Security Council
Resolution 1373 of 28 September 2001 effectively requires compliance by
all states with the International Convention for the Suppression of the
Financing of Terrorism,111 whether or not they are parties to the con-
vention.112 While Resolution 1373 stops short of directly attributing
terrorist acts to the state, it does require that states refrain from ‘provid-
ing any form of support, active or passive, to entities or persons involved
in terrorist acts’, a formulation considerably broader in scope than even
the overall control test of Tadic´.
An impediment to this approach to state involvement in terrorism is the
fact that terrorism itself has still not been fully defined.113 But the defin-
itional debate surrounding terrorism is of greatly reduced significance
given the breadth of the sectoral conventions.114 The 1998 attacks on US
embassies in Dar es Salaam and Nairobi, indeed the 9/11 attacks them-
selves, were covered by one or more of the conventions. Second, following
the recommendation of the Security Council in Resolution 1373,115 the

111
9 December 1999, 2178 UNTS 197.
112
SC Res. 1373 (2001), op. §§1, 2. Also SC Res. 1540 (2004). On the propriety of this form of
Security Council ‘legislation’ see Lavalle, (2004) 41 NILR 411; Talmon, (2005) 99 AJIL
175; Bianchi, (2006) 17 EJIL 881; Joyner, (2007) 20 LJIL 489; Hinojosa Martínez, (2008) 57
ICLQ 333; Orakhelashvili, Collective Security (2011), 220–2.
113
Generally: Becker (2006), 84–118; Saul, Defining Terrorism in International Law (2006); Saul,
(2005) 52 NILR 57. But cf. the decision of the Special Tribunal for Lebanon Appeals
Chamber in February 2011, which (despite being authorized to apply Lebanese domestic
law) set out what it described as the definition of terrorism under customary
international law: Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy,
Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, 16 February 2011,
available at www.stl-tsl.org/en/, §85. For criticism see Ambos, (2011) 24 LJIL 655; Saul,
(2011) 24 LJIL 677.
114
Cf. the bombing of the USS Cole in 2000, which did not fit within the definition of
terrorism under some elements of US law, e.g. 22 USC §2656F(d)(2): ‘the term
“terrorism” means premeditated, politically motivated violence perpetrated against
non-combatant targets by subnational groups or clandestine agents’ (emphasis added).
115
SC Res. 1373 (2001), op. §3(d):
[The Security Council] Calls upon all States to . . . Become parties as soon as
possible to the relevant international conventions and protocols relating to
 direction or control by the state 161

various sectoral conventions are now fairly widely ratified.116 And in any
event the obligation on states not to permit the use of their territory for
acts contrary to the rights of other states is a customary norm binding on
all states, as is the prohibition on the use of force.
For these reasons it is difficult to see the virtue of selectively
expanding ARSIWA Article 8 so as to hold states responsible for the
independent acts of terrorist groups. In the light of the range of detailed
primary norms already prohibiting the sponsorship and support of ter-
rorist acts, the dilution of the Nicaragua and Bosnian Genocide test of
effective control is unnecessary – even counterproductive.

5.5 Attribution and state-owned corporations

Questions surrounding state instruction arise not infrequently in the
case of state-owned corporations, which in one sense are under the
instruction, direction and control of the state as a principal (and, in some
cases, the sole) shareholder.117 But the mere fact that a corporation is
owned, partially or even entirely, by a state does not automatically
permit the piercing of the corporate veil and the attribution of the
conduct of the corporation to the state, unless it is exercising elements
of governmental authority pursuant to ARSIWA Article 5.118 In the
Barcelona Traction case, the International Court acknowledged the general
separateness of corporate entities at national level, except in special cases
where the ‘corporate veil’ is a mere device or a vehicle for fraud.119

terrorism, including the International Convention for the Suppression of the

Financing of Terrorism of 9 December 1999.
116
See e.g. the TBC, which currently has 164 parties: available at treaties.un.org/.
117
This arises most commonly where a state-owned corporation is engaged in a joint
venture with a foreign investor: e.g. Foremost Tehran Inc. v. Iran, (1986) 10 Iran–US CTR
228; American Bell International v. Iran, (1986) 12 Iran–US CTR 170. For an analysis of the
law in this respect as developed by the Iran–US Claims Tribunal, see Caron (1998),
163–73.
118
Crawford, First Report, 42–3. Also Caron (1998), 166. See e.g. International Technical
Products v. Iran, (1985) 9 Iran–US CTR 206, 238–9; Flexi-Van Leasing v. Iran, (1986) 12
Iran–US CTR 335, 348–51.
119
Barcelona Traction, Light & Power Company, Limited (Belgium v. Spain), Second Phase, ICJ Rep.
1970 p. 3, 39:
In accordance with the principle expounded above, the process of lifting the veil,
being an exceptional one admitted by municipal law in respect of an institution
of its own making, is equally admissible to play a similar role in international
law. It follows that on the international plane also there may in principle be
special circumstances which justify the lifting of the veil in the interest of
shareholders.
162 attribution to the state

Under international law, therefore, the basic presumption remains

that the acts of a state-owned corporation are not, merely by virtue of
shareholding, attributable to the state.120 This position is reflected in the
decision of the Privy Council on appeal from the Jersey Court of Appeal
in La Générale des Carrières et des Mines v. FG Hemisphere Associates LLC
(Gécamines).121 The case concerned a claim brought by a Delaware vulture
fund against a mining company owned by the Democratic Republic of
the Congo (DRC). The question for the Privy Council was whether the
actions of the company, Gécamines, could be attributed to the DRC. It
made reference to ARSIWA Articles 4 and 5,122 and the preservation of
the corporate veil at an international level mandated by Barcelona Trac-
tion,123 before stating that the question of attribution turned on whether
the entity under consideration was (a) distinct from the organs of state,
and (b) possessed separate legal personality.124 Significantly, it held that,
as a general principle,
[W]here a separate juridical entity is formed by the State for what are on the face
of it commercial or industrial purposes, with its own management and budget,
the strong presumption is that its separate corporate status should be respected,
and that it and the State forming it should not have to bear each other’s
liabilities.125

Further, the Privy Council remarked, it would ‘take quite extreme

circumstances to displace this presumption’. For the actions of a state-
owned corporation to be attributed to the state would require proof that
‘despite its juridical personality [the company has] no effective separate
existence’, and that ‘the affairs of the entity and the State were so closely
intertwined and confused that the entity could not properly be regarded
for any significant purpose as distinct from the State and vice versa’.
While questions of constitution, control and function are relevant to the
question of attribution, ‘constitutional and factual control and the exer-
cise of sovereign functions do not without more convert a separate entity
into an organ of the State’.126

120
As affirmed in certain decisions of the US–Iran Claims Tribunal: see e.g. Schering
Corporation v. Iran, (1984) 5 Iran–US CTR 361, 368–71; Otis Elevator Company v. Iran, (1987)
14 Iran–US CTR 283, 293–5; Eastman Kodak Company v. Iran, (1987) 17 Iran–US CTR 153,
163–8.
121 122 123 124
[2012] UKPC 27. Ibid., §15. Ibid., §22. Ibid., §§28–9.
125 126
Ibid., §29. Ibid.
 direction or control by the state 163

On this basis, the Privy Council considered that the actions of Géca-
mines could not be attributed to the DRC. It pointed to the fact that
despite governmental interference Gécamines was
a real and functioning corporate entity, having substantial assets and a substan-
tial business including interests in over thirty joint ventures with outside con-
cerns. It had its own budget and accounting, its own borrowings, its own debts and
tax and other liabilities and its own differences with government departments. At
least one such department (the Revenue) went from time to time to the lengths of
enforcing tax claims by execution against Gécamines’ assets.
Further, Gécamines was not in any sense by reason of its functions or activities a
core department of, or on that score inseparable from, the State . . . It was an entity
clearly distinct from the executive organs of the government of the State.127

The position of the board in Gécamines undoubtedly reflects the state of

international law, as foreshadowed by the International Court in Barce-
lona Traction. Where a company is founded by a state and run as an
independent business, the corporate veil may not prima facie be lifted so
as to attribute its acts to the state. But where the company itself is an
empty shell or is run simply as a vehicle by government officials, then
the position may be different. In this, the company in Gécamines may be
contrasted with the National Motorway Company of Morocco (ADM) in
Salini v. Morocco.128 In that case, the tribunal relied on the fact that the
Moroccan government possessed an 89 per cent shareholding in ADM,
and staffed its board with a variety of government officials including the
Minister of Infrastructure, who acted as president.129 Moreover, the
company had developed a practice whereby the minutes of every board
meeting were sent to the prime minister and the secretariat-general of
the government. It was further considered significant from a functional
standpoint that the company was founded for an overtly governmental
purpose, namely ‘the construction, the maintenance and the manage-
ment of large-capacity routes of communication, which are assigned to it
by the State’.130
A further hybrid case occurs where the state appoints an individual to
‘manage’ a company, a situation which occurred frequently in the

127
Ibid., §§70, 71.
128
Salini Construttori SpA and Italstrade SpA v. Morocco, (2001) 6 ICSID Reports 398, 406–9. See
also: Wena Hotels Ltd v. Egypt, (2000) 6 ICSID Reports 89, 107–9; Maffezini v. Spain, (2000) 5
ICSID Reports 387, 415–17.
129
A position constitutionally reserved for him by ADM’s articles of association: (2001) 6
ICSID Reports 398, 406–9.
130
Ibid., 409.
164 attribution to the state

context of the Iranian Revolution and was considered often by the Iran–
US Claims Tribunal.131 Naturally, the mere act of appointing a manager
may itself be attributed to the state – and in some case this action alone
was sufficient to give rise to state responsibility.132 But, beyond this, the
question devolves into an analysis of the independence of the manager
and his or her capacity to control the actions of the company. Where, as
a result of the appointment of the manager, the corporation loses its
independence so as to become an extension of the government, the
protection of the corporate veil may no longer extend to it.133
Attribution may also occur where a state actually instructs a corpor-
ation to do a certain thing: where this occurs, one need not have refer-
ence to anything more than the fact of the directive. This occurred in EDF
(Services) Ltd v. Romania, where the Romanian government had directly
instructed two state-owned corporations to exercise their rights as the
shareholders of a joint venture vehicle in a particular way. The tribunal
held:
The evidence on record indicates that the Ministry of Transportation issued
instructions and directions to AIBO and TAROM [the two state-owned corpor-
ations] regarding the conduct these Companies should adopt in the exercise of
their rights as shareholders of ASRO [the joint venture vehicle] as to acts and
conduct that, according to the Claimant, were in breach of the BIT. There is also
evidence on record of instructions or directions given to AIBO by the State,
through the Ministry of Transportation, regarding the organization of auctions
of AIBO’s commercial spaces at the Otopeni Airport in 2002. Further, the evi-
dence before the Tribunal indicates that the Romanian State was using its
ownership interest in or control of corporations (AIBO and TAROM) specifically
‘in order to achieve a particular result’ within the meaning of the [commentary
to Article 8]. The particular result in this case was bringing to an end, or not
extending, the contractual arrangements with [the Claimant] and ASRO and
instituting a series of auctions.134

131
Caron (1998), 171–3.
132
See e.g. SEDCO v. National Iranian Oil Co., (1985) 9 Iran–US CTR 248, 278–9: ‘[when] on the
date of the government appointment of “temporary managers” there is no reasonable
prospect of return of control, a taking should conclusively be found to have occurred of
that date’. Cf. Starrett Housing v. Iran, (1983) 4 Iran–US CTR 122, 155: ‘assumption of
control over property by a government does not automatically and immediately justify
a conclusion that the property has been taken’.
133
Caron (1998), 172–3. See e.g. Tippetts, Abbett, McCarthy, Stratton v. Iran, (1984) 6 Iran–US
CTR 219, 225–30.
134
EDF (Services) Ltd v. Romania, ICSID Case No. ARB/05/13, 8 October 2009, §201.
 direction or control by the state 165

On this basis, Romania was found responsible for the acts of AIBO
and TAROM by operation of ARSIWA Article 8,135 although it was even-
tually concluded that these did not breach the relevant investment
treaty.136

135 136
Ibid., §§209–14. Ibid., §330.
6 Other cases of attribution

6.1 Introduction
This chapter considers, first, three exceptional (and largely self-
contained) situations in which the actions of non-state entities, not
acting under the direction or control of state organs, may nonetheless
be attributed to the state. Thus the chapter considers attribution in cases
where the citizenry assumes governmental authority by default or in the
absence of the state (ARSIWA Article 9), in cases of insurgency or civil
war (ARSIWA Article 10) and in cases of the positive adoption of the
conduct of non-state actors (ARSIWA Article 11).
The fourth part of the chapter concerns an issue of growing importance
and controversy, namely the attribution of the acts of international organ-
izations to the state. This situation is pointedly not covered in the ARSIWA,
but rather in the ILC’s later work on the responsibility of international
organizations. It has, almost without exception, arisen in the context of
peacekeeping missions, where states contribute forces to a multilateral
operation under the putative command and legal authority of an organiza-
tion such as the United Nations or the North Atlantic Treaty Organization
(NATO), while retaining a measure of operational control over their
national contingents. In such cases, the question arises: to whom should
the actions of peacekeepers be attributed – the state, the organization or
both? That question is presently clouded in uncertainty and confusion.

6.2 Exercise of governmental authority in the absence of the state

6.2.1 Foundations of ARSIWA Article 9
ARSIWA Article 9 governs situations in which private entities exercise
public powers in the absence or default of official authorities. It reads as
follows:

166
 other cases of attribution 167

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 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.

Representing as it does another method by which a state may be held

responsible for the acts of a non-state entity, Article 9 has an affinity
with ARSIWA Article 8; the two had been merged following the first
reading as Draft Articles 8(b) and 8(a), respectively.1 At the outset, it
must be emphasized that the principle reflected by the provision is truly
exceptional, a point made in the commentary:
Article 9 deals with the exceptional case of conduct in the exercise of elements of
the governmental authority by a person or group of persons acting in the absence
of official authorities and without any actual authority to do so. The exceptional
nature of the circumstances envisaged in the article is indicated by the phrase ‘in
circumstances such as to call for’. 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. They may also cover cases where lawful authority is gradually being
restored, e.g. after a foreign occupation.2

The principle underlying ARSIWA Article 9 owes something to the old

idea of the levée en masse, the self-defence of the citizenry in the absence
of regular forces, recognized as legitimate by Article 2 of the Regulations
respecting the Laws and Customs of War on Land, as annexed to the 1907
Hague Convention IV,3 and Article 4A(6) of the Geneva Convention
relative to the Treatment of Prisoners of War.4 But there are occasional
instances in the field of state responsibility proper, as in the case of
Yeager v. Iran,5 which concerned, inter alia, the role assumed by the local
revolutionary committees – the so-called ‘Komitehs’ – which served as local
security forces in the immediate aftermath of the Iranian Revolution.6

1
The two were eventually separated by the Drafting Committee on second reading,
resulting in the current arrangement: ILC Ybk 1998/I, 289; 1998 DC Report, SR.2562, 17.
2
ARSIWA Commentary, Art. 9, §1. Also Draft Articles Commentary, Art. 8(b), §8.
3 4
18 October 1907, 205 CTS 227. 12 August 1949, 75 UNTS 135.
5
(1987) 17 US–Iran CTR 91. The case also has application with respect to ARSIWA, Arts. 7,
8, 11.
6
The Komitehs would later be officially recognized by decree under the name
‘Revolutionary Guards’, although the name, confusingly, was applied to several distinct
post-revolutionary entities: (1987) 17 US–Iran CTR 91, 102 n. 8. Attribution of the actions
of the Guards to the state did not prove problematic after their recognition: William
L. Pereira Associates, Iran v. Iran, (1984) 5 US–Iran CTR 198, 226.
168 attribution to the state

The claimant in that case alleged that prior to their acknowledgement by

the new Iranian government, members of the Komitehs removed him
from his apartment in Tehran and took him to the Hilton hotel prior to
expelling him from the country. The Tribunal had to determine whether
these acts could be attributed to the Iranian state, and did so by reference
to Draft Articles 8(a) and 8(b),7 noting:
The Tribunal finds sufficient evidence on the record to establish a presumption
that the revolutionary ‘Komitehs’ or ‘Guards’ after 11 February 1979 were acting
in fact on behalf of the new government [i.e. under operation of Draft Article 8
(a)], or at least exercised elements of governmental authority in the absence of
official authorities, in operations of which the new Government must have had
knowledge and to which it did not specifically object [i.e. under operation of
Draft Article 8(b)]. Under those circumstances, and for the kind of measures
involved here, the Respondent has the burden of showing that members of
‘Komitehs’ or ‘Guards’ were in fact not acting on its behalf, or were not exercising
elements of government authority, or that it could not control them.8

It is worth pointing out that ARSIWA Article 9 does not cover situations
in which the citizenry have succeeded in forming a new de facto govern-
ment, that is, a government which has not been the subject of de iure
recognition, but which nevertheless is securely in control of the territory
of a state.9 In such cases, the de facto government is to be considered to
be an apparatus of the state, replacing that which existed previously,10 a
point made by Taft CJ in the Tinoco Concessions arbitration.11 Where this
occurs, the officials and agents of the de facto government are equated to
organs of the state proper, giving rise to responsibility under ARSIWA
Article 4. By contrast, if the governmental functions in question are
exercised by an insurrectionist movement which has not established
secure control of the state or which controls only some of its territory,
responsibility will not attach to the state unless the insurrectionist
movement succeeds in establishing a new government, a point discussed
below in the context of ARSIWA Article 10.

6.2.2 Operation of the provision

Given the exceptional circumstances in which it applies, it is unsurpris-
ing that there has been little in the way of state practice or judicial
consideration of ARSIWA Article 9 since its adoption by the ILC. The

7 8
(1987) 17 US–Iran CTR 91, 103. Ibid., 104 (emphasis in original).
9 10
Brownlie’s Principles, 152–3. ARSIWA Commentary, Art. 9, §4.
11
Aguilar-Amory and Royal Bank of Canada (UK/Costa Rica), (1923) 1 RIAA 371, 381–2.
 other cases of attribution 169

ARSIWA Commentary, however, provides guidance as to its application,

positing three conditions.12 First, the non-state actors in question must
be utilizing government functions on their own initiative,13 with the
nature of the activity in question given more weight than the existence
of a formal link between the actors and the organization of the state.14
The term ‘governmental authority’ as used in Article 9 is itself linked
to the same term as it appears in ARSIWA Article 6, and thereby incorp-
orates the well-known distinction between acta iure imperii, which attract
immunity, and acta iure gestionis, which do not.15 Put another way,
governmental authority in the context of the provision is determined
by reference to whether, under ordinary circumstances, the government
would reserve the actions or functions in question to itself: if a private
person can usually perform the function without the government’s
authorization or delegation of powers, it is not to be considered govern-
mental. Thus private persons may not lawfully engage in the provision of
police or border security services (as in the case of the Komitehs in Yeager
v. Iran) without government mandate, but they can enter into contracts
for the supply of military goods and services.
Second, the conduct in question must have been carried out ‘in the
absence or default of the official authorities’.16 The assumption of gov-
ernmental activities by non-state actors will not engage state responsi-
bility in every instance, but only where the state apparatus has suffered
total or partial collapse, for example in situations where it has lost
control of the territory concerned. The test is largely factual in character,
but its inclusion indicates that this provision is based on a kind of agency
of necessity – on the actual need for someone to fulfil the internal func-
tions of the absent state.17
The third element of Article 9 further reinforces the requirement of
necessity: the circumstances surrounding the assumption of governmen-
tal authority must have been such as to call for its exercise in the
circumstances.18 The phrase ‘called for’ indicates that it is the exercise
of governmental authority in general that is called for, and not the

12
ARSIWA Commentary, Art. 9, §3.
13
Were they exercising such functions at the behest of the government, their actions
would be attributable under ARSIWA, Art. 5: see Chapter 4.
14
ARSIWA Commentary, Art. 9, §4.
15
Generally: Sornarajah (1982); Crawford (1983); Trooboff (1986); Schreuer (1988); Fox
(2008), 502–30; Yang, State Immunity in International Law (2012). Further: Chapter 4.
16 17
ARSIWA Commentary, Art. 9, §5. De Frouville (2010), 272.
18
ARSIWA Commentary, Art. 9, §6.
170 attribution to the state

particular actions that are carried out. But, more broadly, this require-
ment requires an examination of the situation giving rise to the exercise
of authority, and whether its assumption is actually required in the
circumstances. This introduces a normative element to the provision
that justifies departure from the usual rule that states cannot be held
liable for the actions of private persons.

6.3 Responsibility for the acts of insurgents19

6.3.1 ARSIWA Article 10 in the International Law Commission
As a general rule, a state is not held responsible for the acts of insur-
gents.20 By definition, such a movement cannot be considered to be
aligned to the interests of the state against which it is fighting. It is
external to the formal structure of the state, exercises no constituted
authority and cannot be considered to be under the state’s ‘instruction,
direction or control’. As Vattel observed, in a slightly different context,
A civil war breaks the bonds of society and government, or at least suspends their
force and effect: it produces in the nation two independent parties, who consider
each other as enemies, and acknowledge no common judge. Those two parties,
therefore, must necessarily be considered as thenceforward constituting, at least
for a time, two separate bodies, two distinct societies. Though one of the parties
may have been to blame in breaking the unity of the state and resisting the
lawful authority, they are no less divided in fact . . . They stand therefore in
precisely the same predicament as two nations, who engage in a contest, and,
being unable to come to an agreement, have recourse to arms.21
The presumptive non-attribution of the acts of insurgents to the states
they oppose is amply supported in the early arbitral decisions. The tribunal in
the Home Missionaries Society case, for example, made express reference to the
well-established principle of international law that no government can be held
responsible for the act of rebellious bodies of men committed in violation of its
authority, where it is itself guilty of no breach of good faith, or of no negligence
in suppressing insurrection.22

19
Generally: Atlam, in Spinedi and Simma (1987) 35; Zegveld, The Accountability of Armed
Opposition Groups in International Law (2002), ch. 5; Dumberry, (2006) 17 EJIL 605; Cahin, in
Crawford, Pellet and Olleson (2010) 247.
20
ARSIWA Commentary, Art. 10, §§2, 3. Also Draft Articles Commentary, Art. 14, §4.
21
Vattel (1758), Bk III, Ch. XVIII, §293 (645).
22
Home Frontier and Foreign Missionary Society of the United Brethren in Christ v. Great Britain
(US/UK), (1920) 6 RIAA 42, 44. Also Williams v. Bruffy, 96 US 176, 191 (1877); British Claims
in the Spanish Zone of Morocco (UK/Spain), (1925) 2 RIAA 615, 642; Several British Subjects v. US
 other cases of attribution 171

But an insurgency movement normally differs from other non-state

actors in that it controls territory in a public or governmental capacity,
although unlawfully. Indeed, Special Rapporteur Ago went so far as to
say that an insurrectional movement which establishes its authority over
a state’s territory becomes a ‘separate subject of international law . . .
perfectly capable of committing internationally wrongful acts’.23 In fact,
at least outside the context of decolonization, there is strong resistance
to admitting even the temporary legal personality of insurrectional
movements, and ‘recognition of insurgency’ as an institution is virtually
obsolete.24 It is doubtful that tying responsibility to the legal personality
of the insurgents as such is helpful, since their disappearance is eventu-
ally ensured, either because the insurrection fails or because it suc-
ceeds.25 In practice what matters is the attribution of the conduct of
the movement to the existing state or any new state, and the answer
given by Article 10 is that there is no attribution of such conduct unless
the insurgents are successful in their aim of creating a new government
or, as the case may be, a new state. Article 10 is in effect a negative
attribution clause to which is attached a curious form of secondary,
contingent responsibility based on the successful outcome of the insur-
gency. It is as if the state represented by the successful insurgents is
precluded from denying the attribution to it of their conduct in the
course of the insurgency.26
Thus state responsibility may arise on a limited basis where the insur-
rection succeeds in creating either a new government or even a new
state.27 ARSIWA Article 10 provides:

(Iloilo Claims) (UK/US), (1925) 6 RIAA 158, 159–60; G. L. Solis v. Mexico (US/Mexico), (1928) 4
RIAA 358, 361. Cf. Sambaggio, (1903) 10 RIAA 499, 524:
It is suggested that a decision holding Venezuela not responsible for the
acts of revolutionists would tend to encourage them to seize the property of
foreigners. This appeal is of a political character and does not address itself to
the umpire.
23
ILC Ybk 1972/II, 129.
24
Wilson, International Law and the Use of Force by National Liberation Movements (1988), 27–8;
Crawford, The Creation of States in International Law (2nd edn, 2006), 380–2.
25
Cahin (2010), 248.
26
Cf. Harington, Epigrams (1618), Bk IV Epistle 5:
Treason doth never prosper: what’s the reason?
Why, if it prosper, none dare call it treason.
27
See e.g. Art. XIII(b) of the Harvard Draft Convention on the International Responsibility
of States for Injuries to Aliens, (1929) 23 AJIL Spec. Supp. 131:
In the event of a revolution or insurrection which brings about a change in the
government of a State or the establishment of a new State, an act or omission
of an organ, agency, official, or employee of a revolution or insurrectionary
172 attribution to the state

(1) The conduct of an insurrectional movement which becomes the new Govern-
ment 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.

On first reading, the principles now reflected in Article 10 were con-

tained in Draft Articles 14 and 15.28 During the second reading, these
were condensed into a single provision, a decision which effectively
deleted Draft Article 1429 and proved relatively uncontroversial on adop-
tion by the ILC.30
Two preliminary points arise. The first is one of terminology. ARSIWA
Article 10 treats all insurrections generally and makes no attempt to
distinguish between a struggle for national liberation on the one hand
and a simple rebellion on the other. The 1996 commentary to Draft
Article 14 admitted candidly that:
In formulating . . . the present article, the Commission . . . is not required to say
anything about the various forms which insurrection may take according to
whether there is a relatively limited internal struggle, a genuine civil war situ-
ation, an anti-colonial struggle, the action of a national liberation front, revolu-
tionary or counter-revolutionary movement and so on, or about the questions
which may arise in connexion with the problem of the international legitimacy
of some of these forms.31

Similarly, in its commentary to Draft Article 15 the Commission said:

The Commission considered that no distinction should be made, for the purposes
of this article, between different categories of insurrectional movements on the

group is, for the purposes of this Convention, attributable to the State in which
the group established itself as the government.
28
See e.g. the comments of Austria: ILC Ybk 1998/II(2), 109–10.
29
Draft Art. 14 provided that a state is not responsible for the acts of an insurrection
movement. Notwithstanding the security that this provided to states, the rule was
removed on second reading as an unnecessary ‘negative’ rule of attribution: Crawford,
First Report, 53.
30
But cf. the comments of the Netherlands, asserting (erroneously) that the provision, in
conjunction with ARSIWA, Art. 7, could permit the attribution of all acts of an
insurgency to the state: ILC Ybk 2001/II(1), 50.
31
Draft Articles Commentary, Art. 14, §7.
 other cases of attribution 173

basis of any international ‘legitimacy’ or any illegality in respect of their estab-

lishment of government.32

The position taken by the ILC in this respect was the subject of
significant criticism by developing countries in the Sixth Committee
during its consideration of the Commission’s 1975 report, on the
basis that it impeded recognition of wars of national liberation as a
special category in international law.33 Such criticisms may be met
with Ago’s response to those members of the Commission who raised
similar concerns: that it was ‘not the Commission’s business to estab-
lish when an insurrectional movement was or was not legitimate,
or when, how, or with respect to whom, it acquired international
personality’.34
The issue of terminology, however, re-emerged in the course of the
second reading, with Dugard noting that many liberation movements
‘would be unhappy to be treated as mere insurrectional movements’, but
going on to query whether it was ‘really possible to distinguish national
liberation movements recognized by the [UN] from those which did not
enjoy such recognition’.35 Other members of the Commission, such as
Simma and Hafner,36 defended the general utility of the term ‘insurrec-
tion movement’, whereas others still reiterated Ago’s original concerns,
noting that ‘the Commission would be headed for serious difficulties if it
tackled the problem of the status of insurrectional movements’.37 The
question was referred to the Drafting Committee, which was given the
option of utilizing either term or both.38 It chose to retain the neutrality
of Ago’s original draft, and the final version of ARSIWA Article 10 refers
solely to ‘insurrection movements’, although Article 10(2) does include
the generic addition ‘or other’.
The second preliminary question concerns the point at which a move-
ment engages the consequences of state responsibility mentioned in
ARSIWA Article 10. In his original draft, Ago used the acquisition
of international personality by the movement as a catalyst for responsi-
bility,39 but this was abandoned by the Commission to avoid taking
a position on the legal requirements for international personality.40
Direction may, however, be found in the ARSIWA Commentary,41 which
32 33 34
Ibid., Art. 15, §20. Atlam (1987), 39, 46–9. ILC Ybk 1975/I, 60.
35 36
ILC Ybk 1998/I, 251. Also ibid., 255 (Pellet). Ibid., 251–2.
37
Ibid., 252 (Bennouna, Kabatsi, Melescanu), 253–4 (Crawford). Dugard also raised this
issue: ibid., 251.
38 39 40
Ibid., 269 (Crawford). ILC Ybk 1972/II, 128ff. ILC Ybk 1975/I, 41–6.
41
ARSIWA Commentary, Art. 10, §9. Also Crawford, First Report, 52.
174 attribution to the state

makes reference to Protocol II to the Geneva Conventions.42 Article 1(1)

of Protocol II refers to ‘dissident armed forces or other organized groups
which, under responsible command, exercise such control over a part of
[the relevant State’s] territory as to enable them to carry out sustained
and concerted military operations and to implement this Protocol’. Art-
icle 1(2) of the Protocol in turn contrasts such groups with ‘situations of
internal disturbances and tensions, such as riots, isolated and sporadic
acts of violence and other acts of a similar character’.43 Thus the Inter-
national Criminal Tribunal for Rwanda determined that the Rwandan
Patriotic Front possessed sufficient territorial control to fulfil these
requirements and engage the terms of Protocol II.44 Similarly, the
UNCHR Special Representative in El Salvador applied Protocol II to the
Frente Farabundo Martí para la Liberación Nacional,45 the UNCHR itself
extended its operation to the Sudanese People’s Liberation Army in
Sudan,46 and the Inter-American Commission on Human Rights applied
it to various armed opposition groups in Colombia.47
By its terms, ARSIWA Article 10 posits three hypotheses, two explicit
and one implicit. First, the insurgency in question succeeds, and replaces
the existing government of the state. Second, the insurgency succeeds,
but, rather than forming a new government, creates a new state. Third,
the insurgency fails.

6.3.2 Responsibility where the insurgency creates a new government

The first hypothesis is reflected in the terms of ARSIWA Article 10(1),
and provides that the conduct of an insurgency which becomes the new
government of a state shall be considered an act of that state under
international law. This is uncontroversial48 and reflects what one early
42
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the
protection of the victims of non-international armed conflicts, 8 June 1977, 1125 UNTS
609.
43
Cf. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Rep. 1971 p. 16, 54:
‘physical control of territory and not sovereignty or legitimacy of title, is the basis of
State liability for acts affecting other States’. Further: Zegveld (2002), 144–5, 207–10;
Cahin (2010), 251–2.
44
Prosecutor v. Akayesu, ICTR Case No. 96-4-T, Trial Chamber, 2 September 1998, §627.
45
Final Report of the Special Representative on El Salvador, UN Doc. E.CN.4/1985/19, 1
February 1985, §122; UNCHR Res. 1989/68, 8 March 1989, preamble.
46
UNCHR Res. 1998/67, 21 April 1998, §6.
47
IACHR, Third Report on the Situation of Human Rights in Colombia, 26 February 1999,
OAS Doc. OEA/Ser. L/V/II.102, Doc. 9, rev. 1, §20.
48
Brownlie (1983), 177–8.
 other cases of attribution 175

award of the US–Venezuela Mixed Claims Commission referred to as ‘a

well-established rule of international law’.49 In the modern era, the
principle was referred to with some regularity by the Iran–US Claims
Commission.50
The commentary explains the logic underpinning ARSIWA Article
10(1) in the following terms:
Where the insurrectional movement, as a new government, replaces the previous
government of the State, the ruling organization of the insurrectional movement
becomes the ruling organization of that State. The continuity which thus exists
between the new organization of the State and that of the insurrectional move-
ment leads naturally to the attribution to the State of conduct which the insur-
rectional movement may have committed during the struggle. In such a case, the
State does not cease to exist as a subject of international law. It remains the same
State, despite the changes, reorganizations and adaptations which occur to its
institutions. Moreover, it is the only subject of international law to which
responsibility can be attributed. The situation requires that acts committed
during the struggle for power by the apparatus of the insurrectional movement
should be attributable to the State, alongside acts of the then established
government.51

This position is reflective of the thesis of ‘organic’ or ‘structural’

continuity,52 under which the factual links connecting a former insur-
rection movement with a current government are sufficient to generate
state responsibility not only for the acts of the insurgency prior to its
success, but also for the acts of the former government in attempting to
suppress the insurgency. It has largely replaced earlier justifications for
the rule, most notably the theory that state responsibility derives in
such cases from the fact that the insurgency’s success reflects the
‘national will’ of the people.53 This thesis is unsatisfactory for a number

49
Dix (US/Venezuela), (1903) 9 RIAA 119, 120. Cf. Bolivian Railway (UK/Venezuela), (1903) 9 RIAA
445, 453. See also the remarks of Verzijl as president of the French–Mexican Claims
Commission in the Pinson case: Pinson v. Mexico (France/Mexico), (1928) 5 RIAA 327, 353:
[Where] the injuries originated, for example, in requisitions or forced
contributions required by the Government [during its] struggle against the
insurgents, or by the revolutionaries before their final success, or whether caused
by criminal acts of [the] legitimate government or its military forces, or crimes
committed by the victorious revolutionary forces, the responsibility of the State
cannot, I think, be denied.
50
See e.g. Rankin v. Iran, (1987) 17 US–Iran CTR 135, 143; Yeager v. Iran, (1987) 17 US–Iran
CTR 91, 101.
51 52
ARSIWA Commentary, Art. 10, §5. Dumberry, (2006) 17 EJIL 605, 611–12.
53
See e.g. Bolivian Railway (UK/Venezuela), (1903) 9 RIAA 445, 453: ‘The nation is responsible
for the obligations of a successful revolution from the beginning, because in theory, it
176 attribution to the state

of reasons;54 thus Schwarzenberger described the national will theory as

‘no more than an empty fiction in the verbiage of political philosophy’.55
For the most part, application of ARSIWA Article 10(1) will be binary:
either the insurrection has succeeded or it has not. But problems may
arise in situations of national conciliation, where a former revolutionary
movement is adopted by the government of the state, for example via a
peace agreement, in an attempt at national reconciliation.56 To apply
Article 10(1) in such a case could act as a disincentive. The commentary
states that Article 10 will only be triggered in the event of ‘a real and
substantial continuity between the former insurrectional movement and
the new government it has succeeded in forming’.57

6.3.3 Responsibility where the insurgency creates a new state

The second hypothesis is contained in ARSIWA Article 10(2), which
provides that when an ‘insurrectional or other’ movement succeeds in
establishing a new state, the acts of the movement will be attributed to
the new state. In contrast to ARSIWA Article 10(1), any acts undertaken
by the predecessor state in attempting to suppress the insurgency will
not be attributed to the new state.
The rule stated within Article 10(2) is again relatively uncontrover-
sial.58 As Dumberry notes, however, state and judicial practice is rela-
tively sparse.59 Some early indications appear in the context of the
American Civil War and the consequences arising from the actions of
the Confederate States of America. During the war, the British Law
Officers were asked who should be held responsible for the acts of the
Confederacy. Phillimore advised that, in the event that the rebels were to

represented ab initio a changing national will, crystallizing in the finally successful

result.’ Further: Dumberry, (2006) 17 EJIL 605, 610–11.
54
See e.g. Ago, ILC Ybk 1972/II, 145. Also ILC Ybk 1975/II, 100:
[T]he very concept of the ‘national will’ is to be treated with caution, quite apart
from the fact that, in general, international law is not greatly concerned with
whether a given government is or is not the representative of the ‘true’ national
will. Even leaving that aside, it is difficult to maintain that the outcome of the
fighting should, like a judgment of God, establish retrospectively that the victors,
from the outset of the civil war, were more representative of the true national
will than the defeated.
55
Schwarzenberger, 1 International Law (3rd edn, 1957), 628.
56
See e.g. Peace Agreement between the Government of Sierra Leone and the
Revolutionary United Front of Sierra Leone, 7 July 1999, available at www.sierra-leone.
org/lomeaccord.html, Pt II.
57 58
ARSIWA Commentary, Art. 10, §7. Crawford, First Report, 52.
59
Dumberry, (2006) 17 EJIL 605, 612–7.
 other cases of attribution 177

succeed in separating from the Union, responsibility should be sheeted

home to the resulting new state:
In the event of the war having ceased, and the authority of the Confederate State
being de jure as well as de facto established, it will be competent to Her Majesty’s
Government to urge the payment of a compensation for the losses inflicted on
Her Majesty’s subjects by the Confederate Authorities during the War.60

This view was shared by the US Supreme Court, which when called on
to determine the responsibility of the Union for acts of the Confederacy,
noted that liability for the acts of a rebellion
both against the parent state and its citizens or subjects, depends entirely upon
its ultimate success. If it fails to establish itself permanently, all such acts perish
with it. If it succeeds and becomes recognized, its acts from the commencement
of its existence are upheld as those of an independent nation. Such was the case
of the state governments under the old confederation on their separation from
the British Crown. Having made good their declaration of independence, every-
thing they did from that date was as valid as if their independence had been at
once acknowledged. Confiscations, therefore, of enemy’s property made by them
were sustained as if made by an independent nation. But if they had failed in
securing their independence, and the authority of the King had been reestab-
lished in this country, no one would contend that their acts against him, or his
loyal subjects, could have been upheld as resting upon any legal foundation.61

Another example of the principle described occurred in the Socony

Vacuum Oil Company case before the US International Claims Commis-
sion.62 There the claimant, a US national, attempted to bring a claim
against Yugoslavia with respect to the expropriation of property by the
‘independent’ state of Croatia. The Commission recognized that this was
in fact a puppet regime established by Germany and Italy, which never
held complete control of its purported territory and disappeared from
view as the Red Army advanced in 1945. It was characterized as an
insurrectional group backed by Berlin which had failed to secede from
Yugoslavia.63 The Commission, obiter, contrasted the US secession from
the British Crown in 1776, and indicated that in such a case, the United
States would be responsible for the actions of revolutionaries during the
War of Independence.64

60
Opinion of 16 February 1863, in McNair, 2 Opinions 257. The opinion itself was requested
in relation to the predations of the CSS Alabama.
61 62 63
Williams v. Bruffy, 96 US 176, 186 (1877). (1955) 21 ILR 55. Ibid., 57–60.
64
Ibid., 60–1. The Commission cited the above passage from Williams v. Bruffy, but
misattributed it to Moore.
178 attribution to the state

A rather more recent example concerned the 1962 Declaration65

which formed part of the Evian Accords concluding the Algerian War,
in which the Front de Libération Nationale (FLN) succeeded in establish-
ing Algeria as an independent state. By its terms, Article 18 of the
agreement provides that ‘Algeria shall assume the obligations and enjoy
the rights contracted on behalf of itself or of Algerian public establish-
ments by the competent French authorities’. Although Algeria has in
general refused to honour the undertaking to the extent of taking
responsibility for the actions of the FLN, the Declaration has always been
interpreted within French jurisdictions as effectively dividing responsi-
bility for acts committed during the Algerian War between the French
and Algerian states.66 As a result of a request for interpretation made by
the French courts,67 the French Foreign Ministry stated that Algeria
should not be held responsible for the acts and measures taken by France
that were specifically directed towards the suppression of the FLN.68 This
interpretation has been consistently applied by the French courts not
only to limit the responsibility of the French state for acts of the FLN, but
also to attribute these actions to Algeria. In one case, for example, the
Conseil d’état affirmed that if the general rule of the transfer
n’a pas pour effet de mettre à la charge de l’Etat algérien la réparation des
dommages causés par les mesures prises spécialement et directement par les
autorités françaises en vue de faire échec aux mouvements insurrectionnels,
l’indemnisation des dommages imputables à des éléments insurrectionnels intér-
esse l’Etat algérien . . .69

As with ARSIWA Article 10(1), Article 10(2) is underpinned by a theory

of organic or structural continuity between the insurrectional move-
ment and the new state:70 ‘from being only an embryo State, the insur-
rectional movement has become a State proper, without any break in

65
Déclaration de principes relative à la coopération économique et financière, 19 March
1962, [1962] JORF 3019.
66
Dumberry, (2006) 17 EJIL 605, 613–5; Cahin (2010), 250.
67
Re Union Régionale d’Algérie de la CFTC, (1962) 44 ILR 43.
68
Dumberry, (2006) 17 EJIL 605, 614.
69
15 March 1995, No. 119737, partially available at www.juricaf.org/arret. Translation:
‘does not have the effect of placing on the Algerian State the obligation of reparation of
injuries caused by measures specifically 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’. Also Hespel,
[1980] Rec. Lebon 866; Consorts Hovelaque, [1984] Rec. Lebon 726; Grillo, [1999] Rec. Lebon
907.
70
Dumberry, (2006) 17 EJIL 605, 611–12.
 other cases of attribution 179

continuity between the two’.71 While this approach is appropriate when

considering a monolithic insurrectionist movement, difficulties emerge
in situations where multiple insurgency groups act so as to bring about
the creation of a new state, even where only one of those groups ultim-
ately succeeds in forming a government.72 Although there has been no
judicial consideration of such situations, Dumberry suggests that the
activities of all relevant insurgency groups may be attributed to the
new state, irrespective of the relationship between them.73 This must
be very doubtful, considering the exceptional character of attribution
under Article 10.

6.3.4 Responsibility where the insurgency fails

On first reading, Draft Article 14 expressed the ‘negative’ rule of attribu-
tion, providing in paragraph (1) that ‘The conduct of an organ of an
insurrectional movement, which is established in the territory of a State
or in any other territory under its administration, shall not be con-
sidered as an act of that State under international law.’ Although it
was deleted during the second reading, this still reflects the default
position under international law.74
But the state’s victory over an insurrectionist movement does not
automatically excuse it from responsibility, a point made clear by
ARSIWA Article 10(3), which preserves for application those grounds of
attribution found in ARSIWA Articles 4–9.75 Thus a state will be liable
for the acts of its armed forces in suppressing a rebellion. Whether, as
suggested in the Home Missionaries Society case, a state could be respon-
sible for ‘negligence in suppressing insurrection’ is much more doubt-
ful.76 Arbitrator Huber in British Claims in Spanish Morocco said:
71
ARSIWA Commentary, Art. 10, §6. Also ILC Ybk 1975/II, 101; Atlam (1987), 50–4; Zegveld
(2002), 156.
72
Dumberry, (2006) 17 EJIL 605, 612. One example of this is the independence of Angola
from Portugal in 1975, which was brought about through the actions of at least three
anti-colonial movements, the União Nacional para a Independência Total de Angola
(UNITA), Movimento Popular de Libertação de Angola (MPLA) and Frente Nacional de
Libertação de Angola (FNLA).
73
Ibid.
74
See e.g. French Company of Venezuelan Railroads (France/Venezuela), (1902) 10 RIAA 285, 354,
emphasizing that a state cannot be held liable for the actions of insurgents ‘unless the
revolution was successful’. Also Pinson v. United Mexican States (France/Mexico), (1928) 5
RIAA 327, 353. Further: ARSIWA Commentary, Art. 10, §12.
75
ARSIWA Commentary, Art. 10, §15.
76
Home Frontier and Foreign Missionary Society of the United Brethren in Christ v. Great Britain (US/
UK), (1920) 6 RIAA 42, 44.
180 attribution to the state

If the State is not responsible for revolutionary events themselves, it may never-
theless be responsible [where] the authorities do not counter the consequences to
the extent possible . . . The principle of non-intervention in the relations between
a State and foreigners in its territory presupposes not only normal conditions of
administration and justice, but also the willingness of the State to achieve its
primary goal: the maintenance of internal peace and social order. The State is
bound to a certain vigilance . . . [A] State may not require another State, injured in
the interests of its nationals, to remain indifferent if opportunities for relief are,
without plausible reason, manifestly neglected, or if the authorities, warned in
time, do not take any preventative measure, or if, again, protection is not granted
under conditions equal to citizens of all nations.77

But this, if correct, would be an aspect of some duty of due diligence,

not a rule of attribution.78
In addition, international law now apparently contemplates that the
insurrectional movement may itself be held internationally responsible
for its acts.79 This encompasses not only the notion that a state may
bring a distinct and quantified claim against an insurrectionist move-
ment, as did the British government with respect to the Confederacy
during the American Civil War and the nationalist government during
the Spanish Civil War,80 but also the wider notion of the responsibility of
the movement as an entity. This practice may be seen in the resolutions of
the Security Council, which has referred to the ‘heavy responsibility
which would fall on any [Arab or Jewish] party failing to observe such a
truce’ in relation to the 1948 call for a ceasefire in the Holy Land,81 and
imposed on rebel groups in the Democratic Republic of the Congo the
obligation to ‘bring to an end all extrajudicial executions, human rights
violations and arbitrary harassment of civilians’ in areas under their
control.82
Another form of responsibility vis-à-vis insurrectionist movements
of course arises under international criminal law. Thus the Inter-
national Criminal Tribunal for the former Yugoslavia has pronounced
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’.83 The same reasoning has

77
British Claims in the Spanish Zone of Morocco (UK/Spain), (1925) 2 RIAA 615, 642.
78
E.g. a failure to effectively protect the premises of a foreign diplomatic mission: ARSIWA
Commentary, Art. 10, §15. Further: Cahin (2010), 253.
79
Draft Articles Commentary, Art. 14, §3. Further: Cahin (2010), 253–5.
80 81
Draft Articles Commentary, Art. 14, §28. SC Res. 43 (1948), op. §2.
82 83
SC Res. 1417 (2002), op. §4. Tadić , (1997) 112 ILR 1, 220–2.
 other cases of attribution 181

been extended to acts of torture.84 In all cases, however, criminal

responsibility is individual not collective.

6.4 Ex post facto adoption of conduct

6.4.1 ARSIWA Article 11 in the International Law Commission
ARSIWA Article 11 governs another situation in which the actions of a
non-state entity can be attributed to a state, namely where the state has
acknowledged and adopted the conduct of a non-state actor as its own
after the event.85 The analogy is that of ratification of unauthorized acts
of an agent in the municipal law of agency. Indeed, the idea was
expressed by Vattel:
[A]s 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.
But if a nation or 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 is perhaps the only instrument.86

Article 11 reads:
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.

The insertion of Article 11 into the ARSIWA came late in the ILC’s
consideration of state responsibility. Unlike all the other provisions on
attribution, it had no basis in the Draft Articles as adopted on first
reading.87 It was introduced during the second reading as Draft Article
15bis, with the Special Rapporteur remarking:
84
Prosecutor v. Delalić , IT-96–21-T, Trial Chamber, 10 December 1998, §473.
85
ARSIWA Commentary, Art. 11, §1.
86
Vattel (1758), Bk II, Ch. VI, §§73–4 (299). See also Grotius, De Iure Belli ac Pacis (1625), Bk
II, Ch. XXI, §II.1 (ed. Tuck 2005, 1055): ‘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.’ It is Vattel’s formulation, however, that
reflects best the framework of modern international law: de Frouville (2010), 258–61.
87
Although Ago appears to have considered the issue tangentially within his Fourth
Report, he did not address it as a separate issue: ILC Ybk 1972/II, 101.
182 attribution to the state

All the bases for attribution covered in chapter II (with the exception of the
conduct of insurrectional movements under article 15) assume that the status of
the person or body as a State organ, or its mandate to act on behalf of the State,
are established at the time of the allegedly wrongful conduct. But that is not a
necessary prerequisite to responsibility. A State might subsequently adopt or
ratify conduct otherwise not attributable to it; if so, there is no reason why it
should not be treated as responsible for the conduct. Adoption or ratification
might be expressed or might be inferred from the conduct of the State in
question. This additional possibility needs to be considered.88

Draft Article 15bis was well received within the Commission, which by
and large accepted the need for such a provision,89 and was forwarded to
the Drafting Committee.90

6.4.2 Judicial consideration of ex post facto adoption

As a general rule, states are loath to adopt conduct which is not their
own, for the obvious reason that to do so may give rise to indeterminate
liability. Nevertheless, some clear examples are evident in case law and
state practice.

6.4.2.1 The Lighthouses Arbitration

In the Lighthouses Arbitration91 an arbitral tribunal held Greece liable for
the breach of a concession agreement entered into by Crete at a period
where it was still considered an autonomous territory of the Ottoman
Empire.92 It did so partly on the basis that, following the voluntary
absorption of Crete by Greece in 1913–14,93 the breach had been
‘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’.94
Quite aside from such questions of succession to responsibility (dis-
cussed in Chapter 13), it is clear that if a successor state, faced with a
88
Crawford, First Report, 54. Also ILC Ybk 1998 I, 249 (Crawford).
89
ILC Ybk 1998/I, 250 (Hafner), 254 (Addo), 255 (Pellet), 268 (Economides), 269 (Crawford,
Special Rapporteur). Cf. ibid., 255–6 (Bennouna).
90
Ibid., 269.
91
Lighthouses Arbitration between France and Greece (Claims Nos. 11 & 4), (1956) 23 ILR 81.
Further: Crawford, First Report, 54.
92
A controversial question at the time: Ion, (1910) 4 AJIL 276.
93
Crete declared unilateral union with Greece in 1908, but this was not recognized by
Athens until 1913 and not by other states until after the First Balkan War: Treaty of
London, 30 May 1913, 218 CTS 159, Art. 4. See further the Tribunal’s historical survey in
the Lighthouses Arbitration, (1956) 23 ILR 659, 663–6.
94
(1956) 23 ILR 81, 92. More widely: ibid., 91–3.
 other cases of attribution 183

continuing wrongful act on its territory, endorses and continues the

situation, the inference may be drawn that it has accepted responsibility
for the wrongful act. Furthermore, ARSIWA Article 11 is framed in
terms of any conduct which is not otherwise attributable to the state in
question. Thus it is not limited to the conduct of private individuals or
actors but also covers that of states or former states or territories.

6.4.2.2 The Eichmann case

The Eichmann case95 concerned Adolf Eichmann, an SS Obersturmbann-
führer who was a principal perpetrator of the Holocaust. At the end of the
Second World War he fled to Argentina and lived there under a pseudo-
nym until 1960, when he was captured by a group of Israelis and
transferred to Israel. In response to the violation of its territorial sover-
eignty, Argentina accused the Israeli government of involvement in
Eichmann’s kidnapping, a charge neither confirmed nor denied by
Israel. During the debate in the Security Council over Israel’s acts, the
Israeli foreign minister referred to Eichmann’s captors as a ‘volunteer
group’96 separate from the Israeli state. In the unlikely event that the
group that captured Eichmann were non-state actors of whose plans
Israel was genuinely unaware,97 its conduct in accepting custody of
Eichmann, and in subsequently trying and executing him, may be taken
as adoption of the abduction, giving rise to attribution under ARSIWA
Article 11.98

6.4.2.3 The Tehran Hostages case

The archetype of how Article 11 works remains the case of United Diplo-
matic and Consular Staff in Iran (US v. Iran).99 The facts are well known: in
November 1979, following the Iranian Revolution that ousted the gov-
ernment of Shah Reza Pahlavi earlier that year, the US embassy in Iran
was overrun by several hundred militants, who seized the compound
and took the personnel hostage. Just prior to the attack, the Iranian
diplomatic police were reported to have disappeared from the scene,
95
A-G (Israel) v. Eichmann, (1961) 36 ILR 18 (District Court); (1962) 36 ILR 277 (Supreme
Court). Further: Silving, (1961) 55 AJIL 307; Fawcett, (1962) 38 BYIL 181; Villalpando,
‘Eichmann case’, (2007) MPEPIL.
96
See Silving (1961), 311–18.
97
Cf. SC Res. 138 (1960), which by its terms implies that Israel was at the very least aware
of and consented to the abduction.
98
ARSIWA Commentary, Art. 11, §5.
99
ICJ Rep. 1980 p. 3. Further: Buffard and Wittich, ‘United States Diplomatic and Consular
Staff in Tehran case (United States of America v. Iran)’, (2007) MPEPIL.
184 attribution to the state

and no subsequent attempt was made by the Iranian government

to rescue the hostages,100 despite the situation continuing for over a
year.101
In late 1979 the United States filed proceedings before the Inter-
national Court, alleging that Iran was in breach, inter alia, of Article
22(2) of the Vienna Convention on Diplomatic Relations (VCDR)102 for
failing 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’.103 It further
alleged that the actions of the militants were directly attributable to
Iran, on the basis of the official attitude of the Iranian state and public
pronouncements on the situation by the Ayatollah Khomeini and other
senior Iranian officials which expressly approved of and maintained the
situation which the militants had created. The Court found in favour of
the United States on this point, stating:
The policy thus announced by the Ayatollah Khomeini, of maintaining the
occupation of the Embassy and the detention of its inmates as hostages for the
purpose of exerting pressure on the United States Government was complied
with by other Iranian authorities and endorsed by them repeatedly in statements
made in various contexts. The result of that policy was fundamentally to trans-
form the legal nature of the situation created by the occupation of the Embassy
and the detention of its diplomatic and consular staff as hostages. 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 the 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. On 6
May 1980, the Minister for Foreign Affairs . . . is reported to have said in a
television interview that the occupation of the United States Embassy ‘had been
done by our nation’.104

100
This was in marked contrast to an earlier incident in February 1979, in which the
Iranian response to an attack on the US embassy was immediate and effective: ICJ Rep.
1980 p. 3, 31.
101
With the exception of thirteen individuals released in late November 1979, and a
severely ill US vice-consul who was released in July 1980, the remaining hostages were
released on 20 January 1981 following the conclusion of the Declaration of the
Government and Popular Republic of Algiers, 19 January 1981, 20 ILM 224.
102
18 April 1961, 500 UNTS 95.
103
The US also alleged that Iran had breached the Vienna Convention on Consular
Relations, 24 April 1963, 596 UNTS 261 and the Treaty of Amity, Economic Relations,
and Consular Rights between Iran and the United States of America, 15 August 1955,
284 UNTS 110.
104
Tehran Hostages, ICJ Rep. 1980 p. 3, 35.
 other cases of attribution 185

It is not clear from this passage whether the Court considered that the
effect of the ‘approval’ of the conduct of the militants was merely
prospective, or whether it made the Iranian state itself responsible for
the whole process of the seizure of the embassy and the detention of its
personnel ab initio. Indeed, it has been argued by some commentators,
that Teheran Hostages stands for the former proposition alone,105 relying
on the Court’s remarks that:
congratulations after the event, such as those reportedly telephoned to the
militants by the Ayatollah Khomeini on the actual evening of the attack, and
other subsequent statements of official approval, though highly significant in
another context shortly to be considered, do not alter the initially independent
and unofficial character of the militants’ attack on the Embassy.106

It might be argued that the case stands for the latter proposition on
the basis that the congratulations of the Ayatollah simply confirmed
Iran’s involvement in the attack on the embassy from the outset,107 in
the same way that France’s acknowledgement that the two individuals
responsible for the destruction of the MV Rainbow Warrior in Auckland
harbour were its agents engaged French responsibility under ARSIWA
Article 4.108 Such interpretations, however, do not properly take account
of the Court’s acknowledgement that, notwithstanding the independent
character of the initial attack, such congratulations were ‘highly signifi-
cant in another context’, namely whether the legal situation of attribu-
tion had been altered. As a question of fact, the attacks remained
independent. But the legal consequences which flowed from that fact
were altered by the approval and adoption such that the attacks could
now be attributed a posteriori to the Iranian state.
In reality, it made little difference which position was taken, since Iran
was held responsible in relation to the period prior to the putative
adoption for its lapses under VCDR Article 22(2).109 But circumstances

105 106
Condorelli and Kreß (2010), 231–2. Tehran Hostages, ICJ Rep. 1980 p. 3, 29–30.
107
Condorelli and Kreß (2010), 232. Further: Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. US), ICJ Rep. 1986 p. 14, 43–5: ‘[declarations may constitute]
evidence of specific facts and of their imputability to the States in question . . . [Such
declarations may] certainly [constitute] recognition as to the imputability of some of the
activities complained of’.
108
Rainbow Warrior (New Zealand/France), (1986) 74 ILR 241. Further: Wexler (1987); Hoss
and Morgan-Foster (2010); Trapp (2011), 36–7. Also Chapter 4.
109
Ibid., 31–3. Subsequent incidents, redolent of Tehran Hostages, occurred with respect to
militant attacks on the UK embassies in Tehran and Tripoli in 2011. In both cases,
however, the United Kingdom preferred to frame its complaints against Iran and Libya
respectively in terms of VCDR, Art. 22(2): ‘Foreign Secretary statement on storming of
186 attribution to the state

can be envisaged in which no prior responsibility could have existed, for

example where the state in question adopted the wrongful conduct as
soon as it became aware of it, or as soon as it assumed control over the
territory concerned. If the adoption is unequivocal and unqualified, as
was the statement of the Iranian foreign minister, there is good reason to
give it retroactive effect.110 In the context of ARSIWA Article 11, this has
the desirable consequence of allowing the injured state to obtain repar-
ation in respect of the whole transaction or event.

6.4.2.4 The Gabčı́kovo-Nagymaros case

A further example of ex post facto adoption of conduct in the context of
state succession is provided by the Gabčı́kovo-Nagymaros case.111 The case
concerned the fallout from a 1977 treaty112 concluded between Hungary
and Czechoslovakia relating to the construction and operation of a series
of locks on the Danube – one at Gabčíkovo in Czechoslovakian territory,
and the other at Nagymaros in Hungary. On 1 January 1993, Czechoslo-
vakia divided and Slovakia became an independent state. On 7 April
1993, Slovakia and Hungary concluded a Special Agreement for the
submission of the dispute concerning the dams to the International
Court.113 Its Preamble provided:
Bearing in mind that the Slovak Republic is one of the two successor states of the
Czech and Slovak Federal Republic and is the sole successor state in respect of
rights and obligations relating to the Gabčíkovo-Nagymaros Project.

The Court took this statement to mean that Slovakia succeeded to

Czechoslovakian responsibility with respect to the project:
According to the Preamble to the Special Agreement, the Parties agreed that
Slovakia is the sole successor State of Czechoslovakia in respect of rights
and obligations relating to the Gabčíkovo-Nagymaros Project. Slovakia may

British Embassy in Iran’, 29 November 2011, available at www.fco.gov.uk/en; ‘Libya

crisis: Expelled Libyan ambassador departs UK’, 2 May 2011, available at www.bbc.co.
uk/news.
110
As indeed occurred in the Lighthouses Arbitration, (1956) 23 ILR 81, 91–2.
111
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7. Further: Schrijver and
Prislan, ‘Gabčíkovo-Nagymaros case’, (2008) MPEPIL.
112
Treaty concerning the Construction and Operation of the Gabčíkovo-Nagymaros Series
of Locks, 16 September 1977, 1109 UNTS 211.
113
Special Agreement for Submission to the International Court of Justice of the
Differences between the Republic of Hungary and the Slovak Republic concerning the
Gabčíkovo-Nagymaros Project, 7 April 1993, 32 ILM 1293.
 other cases of attribution 187

thus be liable to pay compensation not only for its own wrongful conduct
but also for that of Czechoslovakia.114

Thus the specific adoption in the Special Agreement of Czechoslo-

vakia’s actions with respect to the Gabčíkovo-Nagymaros project can
also trigger responsibility on the basis of ARSIWA Article 11. In other
words, the relevant acts of Czechoslovakia could be considered attribut-
able to the Slovakian state.

6.4.3 The operation of ARSIWA Article 11

These cases provide considerable guidance as to the operation of Article
11. First, the act of adoption may be express, as in Teheran Hostages and
Gabčı́kovo-Nagymaros, or implied, as in the Lighthouses Arbitration and
Eichmann. Second, the phrase ‘if and to the extent that’ in Article 11
indicates that a state may selectively identify those non-state actions that
it wishes to adopt, and is not required to approach the matter from an
‘all or nothing’ standpoint.115
An act of acknowledgement and adoption should be distinguished from
a mere expression of support. In defining the principle in Teheran Hostages,
the Court used phrases such as ‘approval’, ‘endorse’, the ‘seal of govern-
mental approval’ and ‘the decision to perpetuate [the situation]’.116 The
ILC, however, shied away from making such actions on the part of the state
the basic threshold for attribution. On this point, the commentary states:
[A]s a general matter, conduct will not be attributable to a State under article 11
where a state merely acknowledges the factual existence of conduct and
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 . . . [T]he term ‘acknow-
ledges and adopts’ in article 11 makes it clear that what is required is something
more than a general acknowledgement of a factual situation, but rather that the
State identifies the conduct in question and makes it its own.117

But, as de Frouville points out, if oral approval is insufficient to ground

attribution, it is difficult to see how simple conduct can reveal the
intention of the state to adopt the non-state acts in question.118 Some
definitive act of adoption is required.
114 115
ICJ Rep. 1997 p. 7, 81. ARSIWA Commentary, Art. 11, §9.
116 117
ICJ Rep. 1980 p. 3, 33–5. ARSIWA Commentary, Art. 11, §6.
118
De Frouville (2010), 275.
188 attribution to the state

Care should thus be exercised when considering the possibility of

using ARSIWA Article 11 to ‘entrap’ other states by deeming them to
have adopted conduct which is merely tolerated or not disowned. Under-
currents of this may be seen in the so-called ‘Bush Doctrine’, in which
the United States claimed to make no distinction for attribution pur-
poses between the terrorists responsible for the 9/11 attacks and the
states which harboured them.119 On this basis the United States could
have equated the refusal by the Taliban, the then de facto rulers of
Afghanistan, to hand over Osama Bin Laden in September 2001 with
the adoption of Al-Qaeda’s actions, thereby attributing the 9/11 attacks
to Afghanistan and using this as a basis for self-defence under Article 51
of the UN Charter.120 The adoption required by ARSIWA Article 11 is not
to be lightly inferred.

6.5 State organs and international organizations

The ARSIWA make no provision for defining the relationship of inter-
national responsibility as between states and international organizations.
ARSIWA Article 57 simply provides that ‘[t]hese 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’. The commentary to this provision notes that
the ILC chose to sidestep the question on the basis that it raises ‘contro-
versial substantive questions as to the functioning of international organ-
izations and the relations between their members, questions which are
better dealt with in the context of the law of international organiza-
tions’.121 These questions have since become even more controversial.
It is necessary to start from first principles. International organiza-
tions – like states – exist on the international plane and possess separate
legal personality.122 This is reflected in the ILC’s 2011 Draft Articles

119
See: Gray, (2006) 5 Chin. JIL 555; Gray, International Law and the Use of Force (3rd edn,
2008), 209–16.
120
Such an approach does not appear to have occurred to the United States on the eve of its
invasion in October 2001: Murphy, 1 United States Practice in International Law (2002),
428ff.; cf. Byers, (2002) 51 ICLQ 401, 409: ‘Subsequent statements by the Taliban,
apparently endorsing the terrorist acts, may further have engaged their legal
responsibility even if, under pre-existing customary international law, this might not
have made them responsible for an “armed attack”.’
121
ARSIWA Commentary, Art. 57, §4. Also ILC Ybk 1998/I, 250–1 (Crawford).
122
See Brownlie’s Principles, 166–71, and see Reparation for Injuries Suffered in the Service of the
United Nations, ICJ Rep. 1949 p. 174, 179.
 other cases of attribution 189

on the Responsibility of International Organizations (DARIO),123

which provide in Article 2(a):
‘[I]nternational organization’ means an organization established by treaty or
other instrument governed by international law and possessing its own inter-
national legal personality. International organizations may include as members,
in addition to States, other entities.

By virtue of their separate legal personality, the basic position under

international law is that the acts of an international organization do not
without more give rise to responsibility on the part of its members.124
But, like states, international organizations are corporate entities, and
as such cannot carry out their functions and activities without the
intermediate involvement of natural persons. Like states, international
organizations will in many cases employ their own organs, and may
consequently be held liable for their actions.125 But unlike states, inter-
national organizations are unable to draw on a large permanent staff of
appropriately qualified persons to carry out special tasks. As a conse-
quence, they often borrow or draw on the organs of member states.126
This is particularly the case with peacekeeping missions127 and other
military operations128 ordered by and carried out under the authority of
the UN or other organizations;129 while the operation itself might be

123
ILC Report 2011, UN Doc. A/66/10, 52.
124
See DARIO, Art. 62 and Commentary. Also Brownlie’s Principles, 182–4. The generally
acknowledged position is that of the English Court of Appeal in the International Tin
Council Appeals, where it was held that direct actions in contract and tort by creditors
against the member states of an international organization could not succeed: [1988] 3
All ER 257, 307 (Kerr LJ), 341–54 (Ralph Gibson LJ); cf. ibid., 326–34 (Norse LJ) (proposing
a residual liability of member states for debts not discharged by the organization). This
was later upheld on appeal to the House of Lords: [1990] 2 AC 418, 480 (Lord
Templeman), 513 (Lord Oliver). For a case of delictual responsibility created by a specific
treaty, see the Convention on International Liability for Damage Caused by Space
Objects, 29 March 1972, 961 UNTS 187, Art. XXII(3).
125
DARIO, Arts. 6–9.
126
Gaja, Second Report on the Responsibility of International Organizations, ILC Ybk 2004/
II(1), 10.
127
Ibid., 11.
128
E.g. actions recently taken by the EU, NATO and a multinational force under US
leadership with UN approval in relation to Somali piracy in the Gulf of Aden: Geiß and
Petrig, Piracy and Armed Robbery at Sea (2011), 116–30.
129
The League of Nations was constitutionally prevented from engaging in such
intervention by Arts. 16 and 17 of the League of Nations Covenant, which gave the
League the power only to order economic sanctions and to ‘recommend [that members]
severally contribute to the armed forces to be used to protect the covenants of the
League’. Nonetheless, the League did administer, after a fashion, several military
190 attribution to the state

supervised by an international organization, the troops in the field are

still very much organs of the contributing member states, giving rise to
live questions of responsibility.

6.5.1 Early theory and practice of international organizations

How, then, to divide responsibility in the case of a military intervention
between the organization putatively in charge of the mission, and the
states contributing forces to ensure its successful prosecution? Until
comparatively recently, the question was considered to be fairly obscure,
so much so that Brownlie declared that his 2005 analysis of the subject
was necessarily brief, as ‘not very much is known about it’ and ‘[m]ost
works of reference ignore it’.130
In fact despite a relative lack of state practice, the essential premises of
state responsibility for the acts of international organizations were by
then present if not well established. Earlier writers focused on the
factual relationship between the organization, the state and the military
forces in question.131 With respect to early UN-backed interventions,
Amrallah stated:
To determine whether an unlawful act is imputable to the UN, the fundamental
rule of [the] international law of responsibility . . . should be applied, i.e. the
international responsibility should be borne by [the] state whose organ or agent
had committed the wrongful act. The UN may be held responsible for the
unlawful act committed by a member of its force so long as this member could
be considered [as] acting as an organ or agent of the UN . . . The UN should not be
held responsible for activities carried out by a member state using its own organs

operations, although these do not appear to have contributed appreciably to the

modern law: Seyersted, (1961) 37 BYIL 351, 356–9.
130
Brownlie, in Ragazzi (2005) 355, 355. Brownlie added (ibid., 362):
The major characterization [of the problem] is that of State responsibility.
The approach which appears to give centrality to the creation of an
intergovernmental organization is analytically flawed and unattractive in other
ways. It is illogical to suppose that a group of States can manufacture an
immunity from responsibility toward third States by the creation of an
international legal personality. And the same logic (of several responsibilities)
applies to the activities of joint agencies.
131
See e.g. Ritter, (1962) 8 AFDI 427, 442; Simmonds, Legal Problems Arising from the United
Nations Military Operations in the Congo (1968), 229; Amrallah, (1976) 32 REDI 57, 73–4;
Butkiewicz, (1981–2) 11 Pol. YIL 117, 122–5, 134–5; Hirsch, The Responsibility of
International Organizations towards Third Parties (1995), 67–71; Amerasinghe, Principles of
the Institutional Law of International Organizations (2nd edn, 2005), 403. Further: Gaja,
Second Report, ILC Ybk 2004/II(1), 12 n. 64.
 other cases of attribution 191

and under its full organic jurisdiction, even if those activities were in application
of a decision [taken] by the UN . . .132

In similar vein, Butkiewicz remarked:

The legal status of the members of the UN peace-keeping forces is not uniform,
because of the varying degree of intensity of the functional link binding them
with the state on the one hand, and the organization on the other. In the status of
the basic personnel the dominant link is that with the state. This excludes the
possibility of attribution to the organization of the acts of the basic personnel on
the ground of a functional link . . . On the other hand, the attribution of the acts
of the peacekeeping forces to the organization at whose disposal they have been
placed is fully justified.133

The relationship between state control on the one hand, and the
control of an organization on the other – what Butkiewicz referred to
as ‘the varying degree of intensity of the functional link’ – can be
demonstrated by the evolving attitude of the UN in its early peacekeep-
ing actions. In the case of the Korean War,134 the Security Council on the
outbreak of hostilities in 1950 adopted a resolution recommending that
UN members ‘providing military forces and other assistance’ place them
under the unified command of the United States, and requested that the
United States designate a commander.135 The resulting force took orders
solely from the United States, and was in no way under the control of the
UN or of any other contributing state.136
In the course of the conflict, the USSR, the People’s Republic of China
and the Democratic People’s Republic of Korea presented several com-
plaints alleging unlawful conduct on the part of members of the unified
command.137 These were always directed not at the UN but at the United

132 133
Amrallah (1976), 73–4. Butkiewicz (1981–2), 134.
134
Generally: Seyersted (1961), 361–74; Bowett, United Nations Forces (1964), ch. 3.
135
SC Res. 83 (1950). Further: Bowett (1964), 40–1.
136
Seyersted (1961), 363–70; Bowett (1964), 40–7; Simmonds (1968), 6–8; Hirsch (1995), 68.
This was recognized expressly by the British Comptroller of Patents when determining
whether an applicant’s patent for a method of bright nickel plating ought to be
extended for six years on the basis of a shortage of nickel from 1950–7 caused by
‘hostilities between His Majesty and any foreign state’, in Re Harshaw Chemical Company’s
Patent, (1964) 41 ILR 15, 20: ‘the fact that the United Kingdom troops engaged in the
hostilities were under a unified command led by the USA [meant that] the action in
Korea was not undertaken by a United Nations force as such maintained and controlled
by the United Nations’.
137
Although the unified command did, through the US government, report to the UN, and
operate in accordance with the major policy recommendations of the organization:
Seyersted (1961), 422–3, 430.
192 attribution to the state

States – presumably for reasons of Cold War politics – and in the face of
consistent UN denials of responsibility the United States eventually paid
compensation.138
The early counterpoint to the Korean War arose in the case of the UN
intervention in the Congo from 1960 to 1964.139 The intervention was
sparked by two cables from the Congolese government regarding the
actions of Belgian troops in the Congo, which prompted UN Secretary-
General Dag Hammarskjöld for the first time to invoke Article 99 of the
UN Charter and call a meeting of the Security Council. The Security
Council duly authorized him to ‘take the necessary steps, in consultation
with the Republic of the Congo, to provide the Government with such
military assistance as may be necessary until . . . the national security
forces may be able . . . to meet fully their tasks’,140 leading to the forma-
tion of the United Nations Organization in the Congo (ONUC). The
resulting chain of command placed all contributing forces under the
supervision and direction of a UN commander who reported directly to
the Secretary-General,141 a point revealed in Hammarskjöld’s interpret-
ation of his mandate:142
Although the United Nations Force under the resolution is dispatched to the
Congo at the request of the [Congolese] Government . . . and although it may be
considered as serving as an arm of the Government . . . the force is necessarily
under the exclusive command of the United Nations, vested in the Secretary-
General under the control of the Security Council . . . [T]he Force is thus not under
the orders of the Government nor can it . . . be permitted to become a party to any
internal conflict . . .
[One consequence of this autonomy is that] authority granted to the United
Nations Force cannot be exercised within the Congo either in competition with
representatives of the host government or in cooperation with them in any joint
operation. This naturally applies a fortiori to representatives and military units of
other Governments . . .143

The actions of ONUC, deriving from acts carried out by the armed
forces of contributing states placed under the command and exclusive

138
Seyersted (1961), 423; Amrallah (1976), 67; Hirsch (1995), 68–9; Gaja, Second Report, ILC
Ybk 2004/II(2), 10.
139
Generally: Schachter, (1961) 55 AJIL 1; Seyersted (1961), 390–402; Bowett (1964), ch. 6;
Abi-Saab, The United Nations Operation in the Congo 1960–1964 (1978).
140
SC Res. 143 (1960), op. §2.
141
Seyersted (1961), 393–6; Bowett (1964), 205–19; Simmonds (1968), 159–68.
142
See also the command diagram produced by the Security Council, and extracted in
Bowett (1964), 210.
143
18 July 1960, UN Doc. S/4389, §§7–15. Further: Abi-Saab (1978), 15–18.
 other cases of attribution 193

control of the UN, led to the largest number of claims ever brought
against the organization. Injuries suffered by the nationals of various
states led to the UN concluding a number of bilateral agreements provid-
ing for lump sum compensation.144 The notion that claims could have
been brought directly against the contributing states does not appear to
have occurred to anyone.145 The organization, however, denied responsi-
bility for acts occurring in connection with ONUC which were outside its
effective control.146

6.5.2 Peacekeeping policy and DARIO Article 7

As the UN Legal Counsel has stated, it is ‘in connection with peacekeep-
ing operations where principles of international responsibility . . . have
for the most part been developed in [the] practice of the Organization’.147
In earlier operations such as Korea, the Congo and Cyprus,148 through to
more recent missions such as Somalia, Rwanda and Kosovo, the UN has
developed a comprehensive position on the division of responsibility
between the organization and contributing states. This is reflected in
the response of the UN Secretariat to the ILC’s call for comment on the
attribution of the conduct of peacekeeping forces to the UN:
A United Nations peacekeeping force established by the Security Council or the
General Assembly is a subsidiary organ of the United Nations. Members of the
military personnel placed by Member States under United Nations command,
although remaining in their national service, are, for the duration of their
assignment to the force, considered international personnel under the authority
of the United Nations and subject to the authority of the force commander . . .

144
See e.g. the agreements with Belgium, 20 February 1965, 535 UNTS 191; Switzerland,
3 January 1966, 564 UNTS 193; Greece, 20 January 1966, 565 UNTS 3; Luxembourg,
28 December 1966, 585 UNTS 147; and Italy, 18 January 1967, 588 UNTS 197.
145
Amrallah (1976), 63; Butkiewicz (1981–2), 135; Hirsch (1995), 69–70.
146
Notably an incident in which an aircraft of the United Arab Republic attempted to
resupply its ONUC contingent in inclement weather and was wrecked on landing. The
UN denied responsibility on the basis that ‘ONUC had not been advised in advance . . .
and did not subsequently assume responsibility for the flight which, as indicated below,
was outside its authority and initiation from the outset’: 17 February 1961, UN Doc. S/
4724. Further: Seyersted (1961), 421; Amrallah (1976), 74; Hirsch (1995), 70.
147
Memorandum to Director of the UN Codification Division, 3 February 2004, quoted in
Gaja, Second Report, ILC Ybk 2004/II(2), 11. On the practice of other organizations, such
as NATO, see Hirsch (1995), 71–3.
148
See e.g. the instance in which the UN accepted responsibility for an accident involving a
British helicopter placed at the disposal of the UN Peacekeeping Force in Cyprus
(UNFICYP) in 1980: (1980) United Nations Juridical Yearbook, 184–5; Gaja, Second Report,
ILC Ybk 2004/II(1), 11.
194 attribution to the state

As a subsidiary organ of the United Nations, an act of a peacekeeping force is,

in principle, imputable to the Organization, and, if committed in violation of an
international obligation, entails the international responsibility of the Organiza-
tion and its liability in compensation. The fact that any such act may have been
performed by members of a national military contingent forming part of the
peacekeeping operation does not affect the international responsibility of the
United Nations vis-à-vis third States or individuals.149

This position is premised on the formal legal control of a peacekeeping

operation which results from its creation by the Security Council or
General Assembly.150 It does not, however, fully reflect the reality of a
peacekeeping operation, in which a state contingent will remain under
the control of its contributing state with respect to disciplinary matters.
The state will also retain exclusive jurisdiction in criminal matters.151
The retention of criminal jurisdiction has in the past been held rele-
vant in attributing conduct to a contributing state, despite the presence
of formally exclusive control by the UN,152 though such a conclusion – at
least insofar as it purports to exclude UN responsibility – goes too far.153
But the UN has maintained its early position of principle, based on the
criterion of effective control in determining attribution in the context of
peacekeeping missions. Although the legal control of the UN might

149
ILC Ybk 2004/II(1), 28. The UN Secretariat has further confirmed that the principles
applicable to peacekeepers may be extended to other state organs placed at the disposal
of the Organization, e.g. disaster relief units: (1971) United Nations Juridical Yearbook, 187.
150
On the legal bases of peacekeeping operations, see Kondoch, in Gill and Fleck (eds.),
Handbook of the International Law of Military Operations (2010) 515, 519–20.
151
P. Kirsch (ed.), ‘Canadian practice in international law: at the Department of Foreign
Affairs in 1995–96’, (1996) 34 Can. YIL 387; Gaja, Second Report, ILC Ybk 2004/II(1), 12.
This is generally specified in agreements concluded between the UN and contributing
states: see e.g. the UN Model Memorandum of Understanding (as amended by GA Res.
61/276B, 24 July 2007), Art. 7quinquiens, extracted in Oswald, Durham and Bates (eds.),
Documents on the Law of UN Peace Operations (2010), 51.
152
See e.g. Attorney-General v. Nissan, [1970] AC 179, 222 (Lord Morris):
[T]hough national contingents were under the authority of the United Nations
and subject to the instructions of the commander, the troops as members of the
force remained in their national service. The British forces continued, therefore,
to be soldiers of Her Majesty. Members of the United Nations force were subject to
the exclusive jurisdiction of their respective national states in respect of any
criminal offences committed by them in Cyprus.
On this basis, the House of Lords found that the United Kingdom was required
to pay compensation for the temporary occupation of a building by British forces
which were part of the UNFICYP. The decision overturned that of Lord Denning
MR and the Court of Appeal, who held that the troops were to be considered UN
agents: Nissan v. Attorney-General, [1968] 1 QB 286, 314.
153
Gaja, Second Report, ILC Ybk 2004/II(1), 12.
 other cases of attribution 195

create an initial presumption of attribution to the organization, the

precise factual context is determinative.154 This was acknowledged
by the Secretariat, whose comments to the ILC concluded with the
observation:
The principle of attribution of the conduct of a peacekeeping force to the United
Nations is premised on the assumption that the operation in question is con-
ducted under United Nations command and control, and thus has the legal status
of a United Nations subsidiary organ. In Chapter VII-authorized operations
conducted under national command and control, the conduct of the operations
is imputable to the State or States conducting the operation. In joint operations,
namely, those created by a United Nations peacekeeping operation and an oper-
ation conducted under national or regional command and control, international
responsibility lies where effective command and control is vested and practically
exercised.155

Thus, in relation to the second UN Operation in Somalia (UNOSOM II),

a Commission of Inquiry established to investigate armed attacks on
UNOSOM II personnel,156 noted:
The Force Commander of UNOSOM II was not in effective control of several
national contingents which, in varying degrees, persisted in seeking orders from
their home authorities before executing orders of the Forces Command.
Many major operations undertaken under the United Nations flag and in the
context of UNOSOM’s mandate were totally outside the command and control of
the United Nations, even though the repercussions impacted crucially on the
mission of UNOSOM and the safety of its personnel.157

The emphasis on effective control in determining the division of

international responsibility between the UN and contributing states,

154
Kondoch (2010), 528–9.
155
ILC Ybk 2004/II(1), 28. Similar observations had been made by municipal courts as early
as 1979, as where the Vienna Oberlandsgericht determined that the Austrian state
could be held responsible where a member of the Austrian contingent in the UN
Disengagement Observation Force in the Golan Heights (1975–6) caused damage to a
barracks: see NK v. Austria, (1979) 77 ILR 470, 472:
[W]hat is decisive is not whose organ (from an organizational standpoint) the
person alleged to have caused the damage actually was, but rather in whose name
and for whom (from the functional standpoint) that person was acting at the
moment when the act occurred. What is decisive is therefore the sphere in which
the organ in question was acting at the relevant time.
156
Further: SC Res. 885 (1993).
157
1 June 1994, UN Doc. S/1994/653, §§243–4. As an example of such operations, see the
US-controlled Operation Gothic Serpent, which sparked the First Battle of Mogadishu:
Bowden, Black Hawk Down (1999).
196 attribution to the state

was adopted as the base unit of analysis by the ILC in developing the
DARIO. Relevantly, DARIO Article 7 (formerly Draft Article 5158) provides:
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.

The commentary to Article 7 notes its conceptual similarity to

ARSIWA Article 6, concerning the placing of an organ of one state at
the disposal of another, but goes on to note that the replication of the
latter provision would be inapposite in the context of the DARIO.159 It
stresses that the in-principle control of the UN over peacekeeping oper-
ations may be reduced and responsibility thus attributed elsewhere
where de facto control over its elements lies elsewhere:
What has been held with regard to joint operations, such as those involving
UNOSOM II and the Quick Reaction Force in Somalia, should also apply to
peacekeeping operations, insofar as it is possible to distinguish . . . areas of
effective control respectively pertaining to the United Nations and the contrib-
uting State. While it is understandable that, for the sake of efficiency of military
operations, the United Nations insists on claiming exclusive command and
control over peacekeeping forces, attribution of conduct should also in this
regard be based on a factual criterion.160

The commentary also considers the possibility of dual attribution

between an international organization and a contributing state, though
it provides little by way of elaboration.161 The potential for joint attribu-
tion in this respect was contested before the International Court by a
number of states in the Use of Force cases162 and before the European

158
The gist of Draft Art. 5 remained effectively unchanged from the introduction of the
provision to the ILC’s draft by Gaja in 2004, to its eventual adoption as DARIO, Art. 7 in
2011: ILC Ybk 2004/II(1), 14.
159
DARIO Commentary, Art. 7, §4. Further: Larsen, (2008) 19 EJIL 509, 512–20.
160
DARIO Commentary, Art. 7, §5.
161
DARIO Commentary, Ch. II, §4:
Although it may not frequently occur in practice, dual or even multiple
attribution of conduct cannot be excluded. Thus, attribution of a certain conduct
to an international organization does not imply that the same conduct cannot
be attributed to a State; nor does attribution of conduct to a State rule out
attribution of the same conduct to an international organization. One could also
envisage conduct being simultaneously attributed to two or more international
organizations, for instance when they establish a joint organ and act through
that organ.
162
See Legality of the Use of Force (Serbia and Montenegro v. France), Preliminary Objections of
France, 5 July 2000, 28–33; Legality of the Use of Force (Serbia and Montenegro v. Italy),
Preliminary Objections of Italy, 5 July 2000, 19–20; Legality of the Use of Force (Serbia and
 other cases of attribution 197

Court of Human Rights in Bankovic´,163 when considering the bombing

actions undertaken against the FRY by NATO forces.

6.5.3 Judicial consideration of contributing state responsibility

Shortly after the adoption of Draft Article 5, two courts had the oppor-
tunity to consider squarely the attribution of the actions of peacekeepers
to contributing states.

6.5.3.1 Behrami and Saramati

The first such decision was based on two joined cases before the Grand
Chamber of the European Court of Human Rights, Behrami v. France and
Saramati v. France, Germany and Norway.164 Both concerned the tripartite
relationship surrounding the international intervention in Kosovo, as
authorized by SC Resolution 1244 of 1999.165 The Security Council estab-
lished an international civilian presence, the UN Interim Administration
Mission in Kosovo (UNMIK) and authorized the presence of a multilateral
military force, Kosovo Force (KFOR), under the unified command and
control of NATO.166
Behrami concerned the death of a young boy and the serious injury of
his brother resulting from the detonation of a cluster bomb dropped into
the hills near Mitrovica by NATO during the air campaign which had
preceded the adoption of SC Resolution 1244. The injured boy and his
father brought proceedings against France, whose forces were princi-
pally responsible for KFOR’s activities in the area, alleging violation of
ECHR Article 2 (the right to life) on the basis that France had failed to
take the appropriate steps to clear unexploded ordinance from the area.
Saramati concerned a resident of Kosovo arrested by UNMIK police and
charged with attempted murder and other offences in April 2001. In
June 2001, the Supreme Court of Kosovo ordered his release, but he was
later rearrested on the orders of the commander of KFOR, a Norwegian
general. He was detained as a security threat by KFOR until January 2002,
when he was transferred to UNMIK custody, whereupon the KFOR com-
mander (the office having now been passed to a French general) author-
ized his continued detention. Saramati brought an action against France,

Montenegro v. Portugal), Preliminary Objections of Portugal, 5 July 2000, 38–42; and the
oral submissions of Portugal on 22 April 2004, ICJ Doc. CR 2004/18, 12–14, all available
at www.icj-cij.org.
163
See e.g. the submissions of France as summarized at Banković v. Belgium, (2001) 123 ILR
94, 103–5.
164
(2007) 133 ILR 1. Noted: Bodeau-Livinec, Buzzini and Villalpando, (2007) 102 AJIL 323.
165 166
SC Res. 1244 (1999). Further: Brownlie and Apperley, (2000) 49 ICLQ 878.
198 attribution to the state

Norway and Germany (on the basis that a German officer was allegedly
involved in his initial arrest, an allegation later dropped) claiming a
violation of ECHR Article 5 (the right to liberty of the person).
In both cases, the first question for determination was whether under
ECHR Article 1 the applicants fell within the ‘jurisdiction’ of the
respondents.167 The Grand Chamber took as its starting point the fact
that the Federal Republic of Yugoslavia was not in control of the terri-
tory, but that it was ‘under the effective control of the international
presences which exercised the public powers normally exercised by the
FRY’.168 But the Chamber then continued to say that the issue was not
merely one of jurisdiction: rather, the Chamber was required to deter-
mine whether it was competent ratione personae to examine state contri-
butions to KFOR and UNMIK, a process which necessitated a discussion of
attribution.
In framing the discussion, the Chamber had earlier seemed to indicate
that the applicable law was reflected in the work of the ILC, citing Draft
Article 5 and its associated commentary.169 It also concluded that the
supervision of minesweeping fell within the mandate of UNMIK, while
the issuing of detention notices fell within the jurisdiction of KFOR.170
With respect to the former, the Chamber concluded that as UNMIK was
created via a Chapter VII resolution, it was a wholly subsidiary organ of the
UN and its actions were thereby attributable to the organization.171 This
effectively disposed of Behrami for want of jurisdiction ratione personae.
The Chamber’s reasoning with respect to KFOR – operational com-
mand of which was exercised by NATO – in Saramati was more contro-
versial. Rather than asking which international organization or state
retained effective control of KFOR, the Chamber seemed to employ more
formalistic criteria to determine responsibility, asking whether the
Security Council ‘retained ultimate authority and control so that oper-
ational command only was delegated’.172 By reference to SC Resolution
1244, it determined that, notwithstanding ‘the effectiveness or unity of
NATO command in operational matters’ concerning KFOR, the fact that
KFOR was present in Kosovo under Security Council authorization was
more material; put another way, ‘KFOR was exercising lawfully

167
In the sense that the states in question had ‘effective control of the relevant territory
and its inhabitants’: see Banković v. Belgium, (2001) 123 ILR 94, 113. Noted: Rüth and
Trilsch, (2003) 97 AJIL 168. On the extraterritorial application of human rights treaties,
see generally Milanovic´, Extraterritorial Application of Human Rights Treaties (2011).
168 169 170 171
(2007) 133 ILR 1, 28. Ibid., 14–15. Ibid., 43. Ibid., 48.
172
Ibid., 45 (emphasis added).
 other cases of attribution 199

delegated Chapter VII powers of the [Security Council] so that the

impugned action was, in principle, “attributable” to the UN.’173
Behrami and Saramati has been the subject of considerable criticism,174
especially for the Grand Chamber’s failure adequately to take into
account the precise relationship between the UN and NATO, despite
finding expressly that the latter possessed effective operational control
of the force in question, a point which the ILC had described as ‘hardly
controversial’.175 At a more fundamental level, the judgment treats this
form of attribution to all intents and purposes as an aspect of the law of
international organizations, conflating thereby the primary norms of
that system with the secondary rules of responsibility.176 This was
accomplished via reference to a published analysis of the implications
of delegation of Chapter VII power by the Security Council,177 developed
before the ILC had commenced its work on the responsibility of inter-
national organizations or even finished the second reading of
ARSIWA.178 In truth, the main relevance of the internal constitutional
arrangements of international organizations with respect to responsi-
bility is in defining and determining the functions of organs and agents,
in a similar way to the internal composition of a state in relation to the
ARSIWA.179
But the decision also contains some unsettling policy implications.
Although it may be seen as concerning relationships of responsibility
as between two international organizations, there is no reason to think
that it would be applied any differently to a relationship between an
international organization and a state. If so, then a state can avoid all
responsibility for the actions of its forces simply by creating an

173
Ibid., 47–8.
174
See e.g. Sari, (2008) 8 HRLR 151, 158–69; Larsen (2008), 520–5; Leck, (2009) 10 MJIL 346,
358; Milanovic´ and Papic´, (2009) 58 ICLQ 267, 281–9; Dannenbaum, (2010) 51 HILJ 113,
151–6; Kondoch (2010), 525–8; Larsen, The Human Rights Treaty Obligations of Peacekeepers
(2012), 129–36, 151–6. The case was considered and rejected by the ILC: Gaja, Seventh
Report, UN Doc. A/CN.4/610, 10–12. The UN also distanced itself from the case, with the
Secretary-General reaffirming the formal position of the organization that ‘the
international responsibility of the United Nations will be limited to the extent of its
effective operational control’: 12 June 2008, UN Doc. S/2008/354, §16. Cf. Cassese (2007),
667.
175 176
ILC Ybk 2004/II(2), 47. Brownlie (2005), 362.
177
Sarooshi, The United Nations and the Development of Collective Security (1999), 163–6, cited at
Behrami v. France; Saramati v. France, Germany and Norway, (2007) 133 ILR 1, 44. For
criticism of Sarooshi’s approach, see Milanovic´ and Papic´ (2009), 284–5. Also Larsen
(2012), 133–6.
178 179
Milanovic´ and Papic´ (2009), 283–6. Ibid., 284.
200 attribution to the state

international organization and ensuring that it retains ‘ultimate author-

ity and control’ for any operations carried out under its aegis.180 Such a
result is contrary to the object and purpose of the ECHR itself. As the
Court has declared, albeit in a different context,
where States establish international organizations in order to pursue or
strengthen their cooperation in certain fields of activities, and where they attri-
bute to these organizations certain competences . . . there may be implications as
to the protection of fundamental rights. It would be incompatible with the
purpose and object of the Convention, however, if the Contracting States were
thereby absolved from their responsibility under the Convention in relation to
the field of activity covered by such attribution. It should be recalled that the
Convention is intended to guarantee not theoretical or illusory rights, but rights
that are practical and effective.181

6.5.3.2 Al-Jedda
The decision of the Grand Chamber in Behrami and Saramati is often
analysed alongside the contemporaneous decision of the UK House of
Lords in R (Al-Jedda) v. Secretary of State for Defence.182 That case concerned
the arrest and detention of a dual British-Iraqi national by British forces
in Iraq on the basis that he was a suspected member of a terrorist group.
His detention was justified under the terms of SC Resolution 1546, which
gave the multinational coalition in Iraq ‘the authority to take all neces-
sary measures to contribute to the maintenance of security and stability
in Iraq in accordance with the letters annexed to this resolution’.183 One
such letter, from the US Secretary of State, stated that in order to
maintain security, the multinational force would be ready to undertake
internment where ‘necessary for imperative reasons of security’.184 The
claimant sought judicial review of his detention on the grounds that it
violated his right to personal liberty, as guaranteed by ECHR Article 5(1).
At first instance, the Divisional Court of the Queen’s Bench Division
determined that the claimant was not entitled to ECHR Article 5(1) pro-
tection, as his rights were qualified by conjunctive effect of SC Resolution
1546 and Article 103 of the UN Charter,185 a position affirmed by the
Court of Appeal.186 The claimant appealed to the House of Lords, but
180
Ibid., 289. Also Brownlie’s Principles, 183.
181
Waite and Kennedy v. Germany, (1999) 118 ILR 121, 135.
182
[2008] 1 AC 332. Noted: O’Keefe, (2007) 78 BYIL 564; Orakhelashvili, (2008) 102 AJIL 337.
See e.g. Larsen (2008), 525–7; Milanovic´ and Papic´ (2009), 289–93; Larsen (2012),
138–41.
183 184
SC Res. 1546 (2004), op. §10. Ibid., Annex.
185 186
[2005] EWHC 1809 (Admin.), §112. [2007] QB 621, 650.
 other cases of attribution 201

before the appeal could be heard, the decision in Behrami and Saramati was
handed down. The UK government realigned its pleadings, arguing that
due to the terms of SC Resolution 1546, the UN had assumed ultimate
control of the situation, absolving the United Kingdom of responsibility.
To apply Behrami and Saramati to Iraq, sheeting home responsibility for
the occupation to the UN, would have amounted to the merest formal-
ism, given the degree of operational latitude possessed by UK and US
forces in Iraq. As Lord Bingham noted, hitherto nobody had even raised
the possibility that the UN was responsible, for example, for the human
rights abuses committed at Abu Ghraib prison in Baghdad.187 In the
event the House of Lords distinguished the situation in Iraq from that
of Kosovo. According to Lord Bingham,
The analogy with the situation in Kosovo breaks down, in my opinion, at almost
every point. The international security and civil presences in Kosovo were estab-
lished at the express behest of the UN and operated under its auspices, with
UNMIK as a subsidiary organ of the UN. The multi-national force in Iraq was not
established at the behest of the UN, was not mandated to operate under UN
auspices and was not a subsidiary organ of the UN. There was no delegation of UN
power in Iraq. It is quite true that duties to report were imposed in Iraq as in
Kosovo. But the UN’s proper concern for the protection of human rights and the
observance of humanitarian law called for no less, and it is one thing to receive
reports, another to exercise effective command and control. It does not seem to
be significant that in each case the UN reserved power to revoke its authority,
since it could clearly do so whether or not it reserved power to do so.188

This attempt to distinguish Al-Jedda from Behrami and Saramati is not

particularly persuasive,189 as is made clear in the speech of Lord
Rodger.190 Lord Bingham focused on the Security Council’s express
authorization of the Kosovo mission, and on the words ‘under United
Nations auspices’ as they appeared in SC Resolution 1244, which ratified
the deployment of the UNMIK and KFOR notwithstanding the fact that
NATO forces had already taken military action in the FRY.191 But
although these words did not appear in SC Resolution 1546, or its prede-
cessor, SC Resolution 1511,192 this did not prevent the application of

187
[2008] 1 AC 332, 348.
188
Ibid., 349. Also, ibid., 375 (Baroness Hale), 378 (Lord Carswell), 383–3 (Lord Brown).
189
Milanovic´ and Papic´ (2009), 291–2; Larsen (2012), 141.
190
[2008] 1 AC 332, 366–7. See also Lord Brown (dubitante): ibid., 384.
191
SC Res. 1244 (1999), op. §5. For comment: Milanovic´ and Papic´ (2009), 292; Milanovic´,
(2012) 23 EJIL 121, 135.
192
SC Res. 1511 (2003).
202 attribution to the state

Behrami and Saramati: the Grand Chamber there did not seem to place any
appreciable reliance on them.193 Lord Rodger concluded that there was
little difference between the Security Council’s purported delegation of
power to the multinational force, and its delegation with respect to
KFOR. On this basis, he extended the reasoning in Behrami and Saramati
to the multinational force in Iraq, and withheld attribution from the
United Kingdom.194
By distinguishing Behrami and Saramati from the facts in front of them,
however, the House of Lords was able to identify and apply the effective
control test of Draft Article 5, affirming thereby the obvious fact of the
United Kingdom’s effective control over its own forces in Iraq.195 It
continued, however, to note that ECHR Article 5(1) was nonetheless
displaced by SC Resolution 1546 and Article 103 of the UN Charter,
causing it to reject the appeal.196
Having exhausted the judicial remedies available to him in the United
Kingdom, Al-Jedda then took the matter before the European Court of
Human Rights,197 giving the Grand Chamber the opportunity to reaffirm
its approach in Behrami and Saramati.198 The Chamber, however, followed
the majority of the House of Lords in distinguishing the operations of the
multinational force in Iraq from those of KFOR:
The Court does not consider that, as a result of the authorisation contained in
Resolution 1511, the acts of soldiers within the Multi-National Force became
attributable to the United Nations or – more importantly, for the purposes of
this case – ceased to be attributable to the troop-contributing nations. The Multi-
National Force had been present in Iraq since the invasion and had been recog-
nised already in Resolution 1483 . . . The unified command structure over the
force, established from the start of the invasion by the United States and United
Kingdom, was not changed as a result of Resolution 1511. Moreover, the United
States and the United Kingdom, through the Coalition Provisional Authority
which they had established at the start of the occupation, continued to exercise
the powers of government in Iraq. Although the United States was requested to

193
Behrami and Saramati, (2007) 133 ILR 1, 45–8.
194 195
[2008] 1 AC 332, 367. Ibid., 338, 348–9 (Lord Bingham).
196
The House did, however, affirm that the terms of SC Res. 1546 (2004) were to be
interpreted strictly so as to minimize the extent of the infringement: ibid., 351–5 (Lord
Bingham), 373–4 (Lord Rodger), 376–7 (Baroness Hale), 378–9 (Lord Carswell), 383–4
(Lord Brown).
197
Al-Jedda v. UK, [2011] ECtHR 27021/08.
198
The Court had previously applied Behrami and Saramati to declare inadmissible two
further cases concerning KFOR: Kasumaj v. Greece, [2007] ECtHR 6974/05, §4; Gajić v.
Germany, [2007] ECtHR 31446/02, §1. See also Beric´ v. Bosnia and Herzegovina, [2007]
ECtHR 36357/04, §§27, 28. Further: Larsen (2012), 136–8.
 other cases of attribution 203

report periodically to the Security Council about the activities of the Multi-
National Force, the United Nations did not, thereby, assume any degree of control
over either the force or any other of the executive functions of the Coalition
Provisional Authority.199

But the Grand Chamber refused to comment on whether the ultimate

authority and control test of Behrami and Saramati, or the effective control
test of Draft Article 5, represented the correct test for attribution in the
circumstances. It simply stated that on the facts neither test had been
satisfied.200 In so doing, it preserved its earlier case law while reaching
an outcome reflecting the reality of the situation.201

6.5.4 The standard of ‘effective control’

6.5.4.1 Defining the basic concept
It is generally accepted202 that the standard of effective control as identi-
fied in DARIO Article 7 is the preferred method for the determination of
responsibility as between a state and an international organization. But
questions remain as to its application, most notably as to the level of
effective control required for attribution.
‘Effective control’ appeared first as a test of attribution in the Nicar-
agua case,203 and was influential in the drafting of ARSIWA Article 8. It
was further elaborated on by the International Court in Bosnian Geno-
cide.204 In describing the test of ‘effective control’ as it appears in DARIO
Article 7, however, the ILC gave no indication as to the extent of the
debt owed to these decisions, or to ARSIWA Article 8 itself. In one
respect at least their influence is clear,205 in that effective control

199
[2011] ECtHR 27021/08, §80.
200
Ibid., §84: ‘the Court considers that the United Nations Security Council had neither
effective control nor ultimate authority or control over the acts or omissions of troops
within the Multi-National Force and that the applicant’s detention was not, therefore,
attributable to the United Nations’. The same approach was taken in Stephens v. Cyprus,
Turkey and the United Nations, [2011] ECtHR 45267/06. Further: Geiß and Petrig (2011),
125–6.
201
For criticism: Milanovic´ (2012), 137; Larsen (2012), 141–2.
202
Although the customary status of DARIO, Art. 7 is still the subject of debate: Larsen
(2008), 518.
203
Nicaragua, ICJ Rep. 1986 p. 14, 62. Also Armed Activities in the Territory of the Congo (DRC v.
Uganda), ICJ Rep. 2005 p. 168, 226. Further: Chapter 5.
204
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 207.
205
Larsen (2008), 512–20. The Commentary to DARIO, Art. 7 does, however, expressly
acknowledge the influence of ARSIWA, Art. 6: DARIO Commentary, Art. 7, §4.
204 attribution to the state

must be assessed from the point of view of the particular act in question.
As the commentary states,
The criterion for attribution of conduct either to the contributing State or
organization or to the receiving organization is based . . . on the factual control that
is exercised over the specific conduct taken by the organ or agent placed at the
receiving organization’s disposal.206

It is also clear that both a state or states and an international organiza-

tion may jointly exercise effective control over a particular act.207 In the
commentary to ARSIWA Article 6, it is noted:
Situations can also arise where the organ of one State acts on the joint instruc-
tions of its own or another State, or there may be a single entity which is a joint
organ of several States. In these cases, the conduct in question is attributable to
both States . . .208

Similarly, the DARIO Commentary notes:

Although it may not frequently occur in practice, dual or even multiple attribu-
tion of conduct cannot be excluded. Thus, attribution of a certain conduct to an
international organization does not imply that the same conduct cannot be
attributed to a State; nor does attribution of conduct to a state rule out attribu-
tion of the same conduct to an international organization.209

Although it sidestepped the issue of dual attribution in Behrami and

Saramati by characterizing the case as a question of the law of inter-
national organizations, the European Court of Human Rights in Al-Jedda
implicitly confirmed this as a possibility in the application of DARIO
Article 7.210
A simple example of how DARIO Article 7 might operate in practice is
the decision of the court of first instance of Brussels in Mukeshimana-
Ngulinzira v. Belgium,211 although the Court did not actually cite that
provision. The case concerned the United Nations Assistance Mission
for Rwanda (UNAMIR), a peacekeeping operation established by the

206
DARIO Commentary, Art. 7, §4 (emphasis added), citing the comments of the UK in UN
Doc. A/C.6/64/SR.16, 5–6.
207
Larsen (2008), 516–17; Leck (2009), 361–4. Also and generally: Nollkaemper, (2011) 9
JICJ 1143.
208
ARSIWA Commentary, Art. 6, §3. See further ARSIWA, Art. 47 and Chapter 10 on joint
conduct.
209
DARIO Commentary, Ch. II, §4.
210
Al-Jedda v. UK, [2011] ECtHR 27021/08, §80. Also Geiß and Petrig (2011), 126–30;
Milanovic´ (2012), 136.
211
ILDC 1604 (BE 2010).
 other cases of attribution 205

Security Council in 1993.212 The military division in UNAMIR was com-

posed of different sectors, with the Kigali sector under the command of a
Belgian officer, Colonel Marchal. Belgium also contributed a battalion of
peacekeepers under the command of a Lieutenant-Colonel Dewaz, with
one element based at a compound built around a local technical school
under the command of a Captain Lemaire. Between 7 and 11 April 2004,
some 2,000 Tutsi and moderate Hutu sought refuge at the compound.
Eventually they were permitted entry, and the compound became a de
facto refugee camp under the protection of the Belgian soldiers and
UNAMIR. On 11 April 2004 the Belgian soldiers evacuated the com-
pound, firing their weapons in the air to prevent the refugees from
impeding their departure. No further measures of protection were taken,
and shortly afterwards Interahamwe militiamen slaughtered the major-
ity of those inside. Nine persons (either survivors or relatives of those
killed) brought civil lawsuits against the Belgian state and Marchal,
Dewaz and Lemaire. The responsibility of the UN was not considered.
The court began – like the House of Lords in Al-Jedda – by distinguishing
the situation in Rwanda from that of Kosovo.213 In determining whether
Belgium or the UN had control over the decision to evacuate the compound,
the court took note of the fact that at no time was the subject discussed
between Marchal and the UN commander – rather, there was only a
discussion between Marchal and the general staff of the Belgian Army.
The court concluded that the decision to evacuate was made by Belgium,
and not by UNAMIR,214 although the responsibility of the Belgian state was
ultimately precluded by reason of a municipal statute of limitations.215

6.5.4.2 Positive and negative conceptions of ‘control’:

the Dutchbat case
Beyond this, the outer limits of effective control in the context of DARIO
Article 7 are uncertain. According to Larsen, ‘the adoption of the “effect-
ive control” test seems not wholly to reflect the complexities of the
existing practice’.216 Towards the end of the ILC’s consideration of the
212
SC Res. 872 (1993), op. §2. Also SC Res. 918 (1994), op. §§3–4, expanding the mission’s
mandate and rules of engagement to include resort to force in the protection of
displaced persons, refugees and civilians in danger.
213 214
Ngulinzira, ILDC 1604 (BE 2010), §26. Ibid., §38.
215
Ibid., §§36–7. The individual liability of the commanders and issues pertaining to
quantum were reserved for a later date: ibid., §§48, 52.
216
Larsen (2008), 518. Within the ILC, there appears to have been acceptance of the
essential ambiguity of the term, and an expectation that its practical application would
prove possible: ILC Ybk 2004/I, 79 (Mansfield). Cf. ibid., 90 (Brownlie), arguing that
206 attribution to the state

issue, questions emerged as to whether actual, positive control over the

particular act (i.e. the giving of direct instructions) was required in order
for attribution to occur, or whether the capacity to exercise control
combined with a failure to prevent a particular act from taking place
could be sufficient. Such comments were driven in large part by a desire
to ensure that the law of responsibility for states and organizations
constituted an effective regime of accountability. One influential com-
ment by Dannenbaum was as follows:
Under the proposed interpretation . . . the question is not simply ‘who gave the
orders?’ but rather, ‘given the command and control authority and responsibility
with which the entity was endowed, and given the de facto actions that each took,
which entity [i.e. the organization or the contributing state] was positioned to
have acted differently in a way that would have prevented the impugned con-
duct?’ . . . Defined succinctly, ‘effective control’ for the purposes of apportioning
liability in situations of the kind addressed by Draft Article 5, is held by the entity
that is best positioned to act effectively and within the law to prevent the abuse
in question.217

On this basis, ‘effective control’ may be conceptualized as a measure of

an actor’s ability to prevent an act,218 an approach which appears to have
informed the decision of the Court of Appeal in The Hague in the joined
cases of Nuhanovic´ and Mustafic´ v. Netherlands (Dutchbat).219
The facts of Dutchbat are superficially similar to those of Ngulinzira. On
3 March 1994, the Dutch Battalion (‘Dutchbat’) was inserted into the area
surrounding Srebrenica, in Bosnia-Herzegovina, as part of the UN Pro-
tection Force (UNPROFOR) tasked with protecting the ‘safe areas’ identi-
fied by the Security Council.220 One such safe area was a factory site in
Potočari, just outside Srebrenica, which contained the main Dutchbat
compound. Between 5 and 11 July 1995, some 5,000 Muslim refugees
fleeing the Bosnian Serb attack on Srebrenica were admitted to the
compound, and a larger number stayed in the Potočari area, putatively
under Dutchbat protection.
By the time of the takeover of Srebrenica by the Bosnian Serbs, it was
recognized by military officials that the mission to protect what had
become a Muslim enclave had failed.221 The decision was made to withdraw

effective control should be replaced by authority or apparent authority of the

organization as a basis for attribution.
217 218
Dannenbaum (2010), 157. Ibid., 158–3.
219
LJN: BR5388, 5 July 2011; LJN: BR5386, 5 July 2011. Further: Nollkaemper (2011);
Boutin, (2012) 25 LJIL 521.
220 221
SC Res. 836 (1993), op. §5. LJN: BR5388, 5 July 2011, §2.19.
 other cases of attribution 207

Dutchbat and to evacuate Potočari. In preparing for the evacuation, the

Dutchbat commander, Lieutenant-Colonel Karremans, met the com-
mander of the Serbian forces, General Mladić .222 Mladic´ assured Karre-
mans that his forces were not targeting the civilian population, and was
placed in charge of evacuating the refugees. Shortly afterwards, Dutchbat
received reports that some of the refugees, and particularly able-bodied
men, ‘were deported in order to be killed or to suffer serious physical
abuse’.223 Nevertheless, the evacuation continued. Several years later, the
families of three of the victims of what by then was known as the Srebre-
nica massacre brought actions against the Netherlands under Dutch tort
law. At first instance,224 the district court of The Hague rejected the claims
on the basis that the conduct in question was attributable only to the UN.225
This decision was reversed by the Court of Appeal, which found that the
conduct in question could be attributed to the Netherlands by reason of
‘effective control’.
The court began by determining that the law of state responsibility
was the applicable law for the question of attribution, as the primary
matter before the court concerned the relationship between two subjects
of international law.226 It further continued to adopt the effective con-
trol test for the purpose of the analysis, noting:
[The appellant] argues that in relation to the criterion for the attribution of
the conduct of Dutchbat to the UN or to the State, the question should be who
had ‘effective control’ and not, as assumed by the District Court, who exer-
cised ‘command and control’ [i.e. the test in Behrami and Saramati]. This ground
for appeal is correct. In international law literature, as also in the work of the
ILC, the generally accepted opinion is that if a State places troops at the
disposal of the UN for the execution of a peacekeeping mission, the question
as to whom a specific conduct of such troops should be attributed depends on
the question which of both parties has ‘effective control’ over the relevant
conduct.227

222
See now Prosecutor v. Mladic´, ICTY Case No. IT-09-92-PT, Prosecutor’s Fourth Amended
Indictment, 16 December 2011.
223
Ibid., §6.7.
224
HN v. Netherlands, LJN: BF0181/265615, 10 September 2008.
225
The liability of the UN was never discussed by the Court, it having been determined in
another proceeding that the organization had immunity before the Belgian courts:
Mothers of Srebrenica v. The Netherlands and the United Nations, LJN: BL8979, 30 March 2010.
226
The appellants had previously argued that national (i.e. Bosnian) law was applicable,
presumably in order to avoid the implications of the decision in Behrami and Saramati,
which had been applied in the lower court: LJN: BR5388, 5 July 2011, §5.3.2.
227
Ibid., §5.8.
208 attribution to the state

The court continued,

The question whether the State had ‘effective control’ over the conduct of
Dutchbat . . . must be answered in view of the circumstances of the case. This
does not only imply that significance should be given to the question whether
that conduct constituted the execution of a specific instruction, issued by the UN
or the State, but also to the question whether, if there was no such specific instruction, the
UN or the State had the power to prevent the conduct concerned. Moreover, the Court
adopts as a starting point that the possibility that more than one party has
‘effective control’ is generally accepted, which means that it cannot be ruled
out that the application of this criterion results in the possibility of attribution to
more than one party.228

The court considered two mechanisms of control possessed by the

Netherlands. In the first place, it assessed the legal control of the Nether-
lands over its peacekeepers by virtue of its retention of formal powers
with respect to personnel and discipline,229 as well as its capacity to
withdraw its troops from UNPROFOR.230 The court attached additional
relevance to the fact that with the evacuation of the compound from 11
July 1995, the Dutchbat mission entered a new phase, in which the UN
and the Dutch government had legal authority (zeggenschap231) over the
peacekeepers, as this concerned their withdrawal from the region.232
The decision to evacuate was taken in consultation between the French
General Janvier on behalf of the UN and senior Dutch officials, which the
court took to be evidence that the Dutch government ‘participated in
that decision making at the highest level’.233
The court found that the legal control afforded to the Netherlands
after 11 July 1995 gave it the authority to instruct Dutchbat, and thus
effective control over its actions. It should, however, be pointed out that
effective control may nonetheless arise in the absence of legal authority:
an instruction given (even without legal authority) by a contributing
state and followed by its national contingent will give rise to a finding
of effective control and thus attribution.234

228
Ibid., §5.9 (emphasis added).
229
This finds support in the DARIO Commentary, Art. 7, §7: ‘[a]ttribution of conduct to the
contributing State is clearly linked with the retention of some powers by that State over
its national contingent and thus on the control that the State possesses in the relevant
respect’.
230 231
LJN: BR5388, 5 July 2011, §5.10. Nollkaemper (2011), 1150.
232 233
LJN: BR5388, 5 July 2011, §5.18. Ibid., §5.12.
234
Nollkaemper (2011), 1151. This point was conceded by the District Court at first
instance, although it was ultimately determined that there was insufficient evidence for
such a finding: HN v. Netherlands, LJN: BF0181/265615, 10 September 2008, §4.14.1.
 other cases of attribution 209

In the second place, the court examined the factual control possessed
by the Netherlands over Dutchbat, holding that the decision to evacuate
the compound, and thus place the victims in danger, was the result of
decisions taken by the Dutch government in consultation with the
UN.235 It further noted:
[I]t is beyond doubt that the Dutch Government was closely involved in the
evacuation and the preparations thereof, and that it would have had the power
to prevent the alleged conduct if it had been aware of this conduct at the time.
The facts do not leave room for any other conclusion than that, [if] the Dutch
Government would have given the instruction to Dutchbat not to allow [the
victims] to leave the compound or to take [them] along respectively, such an
instruction would have been executed.236

The court in Dutchbat was making the point that effective control over
the actions of peacekeepers goes beyond merely ordering the conduct.
Rather, the manner in which a state exercises its legal control over
peacekeepers and influences their actions on the ground may place it
in a position of effective control by virtue of the fact that it can prevent
wrongful acts from occurring.237 This is in line with Dannenbaum’s
suggestion that acts be attributed to the state or organization best
positioned in legal terms to prevent them.238
The decision in Dutchbat represents a step forward in ensuring an
effective regime of responsibility with respect to peacekeeping
actions.239 It not only adopts a liberal view of ‘control’, but also affirms
unequivocally the possibility of dual attribution. But it is too early to
determine whether the liberal conception of control put forward by
Dannenbaum and Dutchbat can be considered a legitimate addition to
the law of state responsibility. For one thing, the decision remains under
appeal before the Dutch Supreme Court.240 For another, the ILC,
although it mentioned both the district court and Court of Appeal
judgments in Dutchbat in its commentary to DARIO Article 7,241 reserved

235 236 237

LJN: BR5388, 5 July 2011, §5.19. Ibid., §5.18. Boutin (2012), 529.
238
Dannenbaum (2010), 157. Also Leck (2009), 359, suggesting that there should be taken
into account ‘various factors, such as whether the parties exercised due care in
preventing wilful or negligent actions or omissions and the degree to which they did’.
239
Boutin (2012), 533–4. Cf. Nollkaemper (2011), 1157, arguing that the facts of the case
are too specific to warrant wide application of its principles.
240
But cf. Nollkaemper (2011), 1153, noting that the Dutch Supreme Court does not lightly
take a different view to the Court of Appeal with respect to questions of international
law.
241
DARIO Commentary, Art. 7, §14.
210 attribution to the state

its opinion as to whether it considered such an extension to be within

the ambit of the provision.
Likewise, it is too much to suggest that the case stands for the propos-
ition that the mere possibility of effective control is sufficient to ground
attribution. Certainly, other cases on effective control, such as Nicaragua
and Bosnian Genocide, although they arise in a different context, are
framed largely in terms of positive acts committed by the state. More-
over, the characteristic retention of criminal jurisdiction by contributing
states over peacekeeping forces would tend to suggest that some level of
state control is always present, making the distinction between the state
and organization in terms of attribution – long maintained by the UN as
an article of faith – effectively meaningless.

6.5.5 Distinction between attribution of acts and secondary

responsibility with regard to international organizations
In addition to issues of attribution discussed here, DARIO Part Five also
deals with what it terms ‘Responsibility of a State in connection with the
act of an international organization’. It consists of five articles, covering
five more-or-less distinct situations:

• aid or assistance by a state in the commission of an inter-

nationally wrongful act by an international organization
(DARIO Article 57; cf. ARSIWA Article 16);
• direction or control exercised by a state over the commission
of an internationally wrongful act by an international organ-
ization (DARIO Article 58; cf. ARSIWA Article 17);
• coercion of an international organization by a state (DARIO
Article 59; cf. ARSIWA Article 18);
• responsibility of a state seeking to avoid compliance (DARIO
Article 60); and
• responsibility of a state member of an international organiza-
tion for the internationally wrongful act of that organization
(DARIO Article 61).
The first three of these provisions closely track the relevant ARSIWA
Articles (discussed in Chapter 12). The other two are additional: Article
60 is a kind of anti-evasion provision with little precedent; Article 61 is a
contribution, probably de lege ferenda, to the law of international organ-
izations, and moreover it creates what Article 61(2) describes as a merely
‘subsidiary’ form of responsibility. Analytically there are important dis-
tinctions between these various provisions, and not all of them involve
 other cases of attribution 211

ancillary or secondary responsibility: notably Article 60 does not. For the

sake of convenience they will be dealt with together in Chapter 12. It is
only necessary here to observe that the discussion in the present chapter
has concerned the attribution or otherwise of acts of state personnel
carrying out activities under the auspices of international organizations,
whereas DARIO Part Five is concerned with what is indisputably conduct
of the organization in relation to which a state’s responsibility is engaged
by some involvement in the conduct on the part of that state. The two
fields in practice overlap, but the difference between them justifies their
separate treatment.
Part III
Breach
7 Breach: the material element

7.1 Introduction
Part One, Chapter III of ARSIWA is intended to provide a framework for
the threshold determination that a state has breached one of its inter-
national obligations. It covers both the material element – whether a
breach has occurred – and the temporal element – when a breach is taken
as having occurred; the latter is addressed separately in Chapter 8.
Breach is one of the two fundamental components of an internation-
ally wrongful act, the concept at the heart of the state responsibility
regime.1 ARSIWA Article 12 provides that ‘[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, regardless of
its origin or character’.2 Beyond that general statement, however, it is
difficult to be more specific without moving away from underlying
secondary rules into the realm of the primary obligations of the state.
After all, there is no code of international law: the codification process is
less a movement than a menu. A state’s obligations, notably under
treaties, are what they are, and correlatively a breach is a breach: it all
depends on the circumstances.
Nonetheless, certain features of the material element of breach may
usefully be elucidated beyond the bare bones of ARSIWA Article 12. The
first point is to explain further the autonomy of the primary obligation,
before discussing the questions of breaches by acts and omissions, and

1
The other necessary constituent element is that the conduct amounting to breach is
attributable to the state under international law; see ARSIWA, Art. 2. On attribution see
Chapters 4–6.
2
This combines earlier Draft Articles, Arts. 16, 17 and 19(1); see Crawford, Second Report,
10–16; ILC Ybk 1999/II(2), 54–5.

215
216 breach

the role of intention and fault. Certain classifications of obligation that

may be relevant to breach will then be discussed. The chapter concludes
with some observations in respect of three miscellaneous issues: antici-
patory breach, illusory obligations and ‘non-violation complaints’.

7.2 The autonomy of the primary obligation

In determining whether there has been a breach of an obligation, con-
sideration must be given above all to the substantive obligation itself, its
precise formulation and meaning, as applied to the facts of the case in
hand. The content of the obligation will dictate the answers to specific
questions, such as whether or not damage is required as an element of
breach in a particular case.3 But all of the detail of substantive primary
obligations falls clearly within the scope of the primary rules of inter-
national law.4
The distinction between primary and secondary obligations may be
described as technical, and at times artificial and difficult to apply,5 but
it has been indispensable in defining the limits of codification efforts in
the context of state responsibility. The ILC distinguished rules regulating
state responsibility, the subject of the project, from rules the violation of
which gave rise to responsibility, which were to be excluded.6 Nonethe-
less, earlier versions of the ILC Articles attempted to include some of the
substantive rules connected with state responsibility, ranging from vari-
ous provisions on human rights and the protection of aliens, to a rule
about repudiation of public debts, to a rule about the relations of foreign
parent companies and local subsidiaries. Such an approach would inevit-
ably raise questions about why some primary obligations were men-
tioned and not others. Codifying the primary rules – although it might
enable a more focused determination of whether a breach of a particular
obligation has occurred – would involve the restatement of the entire
body of conventional and customary international law, and run the risk
of telling states what kinds of obligations they may have.
For these reasons, the ILC chose to focus on the underlying framework
and structure of the secondary system of state responsibility, leaving the
3
See ARSIWA Commentary, Art. 2, §9. For discussion of the role of ‘damage’ as a
prerequisite for state responsibility, see Crawford, First Report, 27–9, and see Chapter 2.
4
The focus of the ARSIWA is on obligations, not rules: see Ago, Second Report, ILC Ybk
1970/II, 192; Nishimura, in Crawford, Pellet and Olleson (2010) 365, 366. See further
ARSIWA Commentary, Art. 2, §13: what matters ‘is not simply the existence of a rule but
its application in the specific case to the responsible State’.
5 6
See David (2010); Combacau and Alland, (1985) 16 NYIL 81. David (2010), 27.
 the material element 217

primary content of obligations (and correspondingly the specific require-

ments for breach in any given case) to be determined by other processes.
The distinction was indirectly endorsed by the International Court in
Gabčı́kovo-Nagymaros, when it observed that the law of treaties and the
law of state responsibility each 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.7

For this reason, the provisions on breach in Chapter III of Part One are
framed in broad, general terms and deal with all international obliga-
tions at an abstract level without touching on specifics. Article 12 spells
out the essence of a breach, being conduct by the state that is ‘not in
conformity with what is required of it’ by the obligation in question. This
is flexible enough to encompass all forms of breach – whether the
underlying obligation requires compliance with strict and detailed
requirements or whether it merely sets a minimum standard of conduct;
whether the breach completely disregards the obligation or is only partly
contrary to what is required; whether the conduct amounts to acts,
omissions or a combination of both. A determination of whether there
has been a breach is achieved in all cases by comparing the conduct in
fact engaged in by the state with the conduct legally prescribed by the
relevant primary obligation.8

7.3 Acts and omissions

Although Article 12 only refers to ‘acts’ of states expressly in its defin-
ition of breach, Article 2 makes it clear that both acts and omissions by
state organs can amount to conduct that is internationally wrongful.9
In principle there is no reason to distinguish between the two.10
State responsibility is frequently invoked on the basis of an
7
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7, 38.
8
ARSIWA Commentary, Art. 12, §2.
9
See ARSIWA Commentary, Art. 2, §4. See also ibid., Art. 1, §8, which states that ‘the
term “act” is intended to encompass omissions’, and ARSIWA, Art. 15(1), which refers to
‘[t]he breach of an international obligation by a State through a series of actions or
omissions defined in aggregate as wrongful . . .’.
10
Latty, in Crawford, Pellet and Olleson (2010) 355, 355.
218 breach

omission – Albania’s failure to warn third states of the presence of mines

in its waters in Corfu Channel,11 Iran’s failure to take appropriate steps in
response to the hostage crisis in Tehran Hostages,12 among numerous
examples.13 It must be recalled, however, that omission is more than
simple ‘not-doing’ or inaction: it is legally significant only when there is
a legal duty to act which is not fulfilled, and its significance can only be
assessed by reference to the content of that duty.14 So an omission is the
failure to do that which should be done; the absence of any primary
obligation ‘to do’ will mean that no omission may be complained of.15
As the commentary points out, in some cases it may be the combin-
ation of an act and an omission that forms the basis for responsibility.16
Further, the distinction between what is an act and what is an omission
may be difficult to draw. On the whole, however, the consequences of
the distinction between acts and omissions are limited; responsibility
rests on the existence of a breach, not whether the breach came about
through action or omission on the part of the state.17 The one area where
the distinction may be of use is in determining the content of the
obligation of cessation that flows from the internationally wrongful
act. The content and character of the primary obligation will affect
whether or not the secondary obligation to put an end to the wrongful
conduct amounts to a requirement to take positive action that the state
has previously failed to perform (in the case of an omission), or whether
it will be an obligation with different content to that of the obligation
breached (in the case of an action).18
In Bosnian Genocide the International Court distinguished complicity in
genocide from a failure to prevent genocide by characterizing complicity
as requiring commission of an act, whereas it found that a violation of
the obligation to prevent resulted from omission – that is, a failure to
adopt and implement suitable measures of prevention.19 This approach
has been criticized for being simplistic and ignoring the subtleties that

11
Corfu Channel (UK v. Albania), ICJ Rep. 1949 p. 4, 23: ‘nothing was attempted by the
Albanian authorities to prevent the disaster. These grave omissions involve the
international responsibility of Albania’; see also ibid., 52 (Judge Winiarski, diss.).
12
United States Diplomatic and Consular Staff in Tehran (US v. Iran), ICJ Rep. 1980 p. 3, 32–3. See
also Tippetts, Abbett, McCarthy, Stratton v. TAMS-AFFA Consulting Engineers of Iran and others,
(1984) 6 US–Iran CTR 219, 225.
13 14
See further Latty (2010). Honoré, Responsibility and Fault (2002), 47.
15 16
Latty (2010), 357–8. ARSIWA Commentary, Art. 2, §4 n. 67.
17 18
Latty (2010), 356–61. Ibid., 362–3.
19
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 222–3.
 the material element 219

the distinction can generate.20 It is well established that there can be

wrongful acts through omission; also, a breach that appears to arise
from omission may in fact be the outcome of the commission of positive
acts, for example where measures to prevent genocide (or some other
given event) were taken but they were inadequate or inappropriate
to achieve that goal. For the purposes of determining breach, then, it
is clearer to distinguish between obligations ‘to do’ and obligations ‘not
to do’.21
As discussed in Chapters 2 and 3, the concept of responsibility as it
appears in the ARSIWA is not predicated on the subjective fault or ‘culpa’
of the state that committed the internationally wrongful act. The issue to
be considered by the law of responsibility – at least in a material sense –
is whether the breach in question occurred. If the primary obligation
requires fault or intent, then that is the position; if not, then no such
requirement is imposed ab extra.

7.4 The classification of obligations

Obligations can be classified in a number of ways – including by refer-
ence to the origin or source of the obligation (for example, customary
versus conventional obligations); by reference to the content of the
obligation and whether it is positive or negative in character; or by
reference to the specific function and goal of the obligation (for example,
obligations of prevention versus obligations of repression; obligations to
perform certain conduct versus obligations to achieve a certain result).22
As Dupuy has pointed out, however,
at least within the scope of state responsibility as it is defined by the ILC, . . . the
only apposite categorization of obligations is one which assists in determining
the consequences of their violation, in terms of content, form and degree, or, to
put it differently and in a broader sense, in terms of legal regime.23

ARSIWA Article 12 makes it clear that the origin and character of an

obligation are irrelevant to the question whether a breach has occurred,
for the purposes of establishing responsibility.24 Subject to the lex specialis
principle, the general provisions on breach apply to all forms of breach
20 21
See Latty (2010), 359. Ibid., 360.
22
See generally Economides, in Crawford, Pellet and Olleson (2010) 371.
23
Dupuy, (1999) 10 EJIL 371, 374.
24
ARSIWA Commentary, Art. 12. On the origin (source) of the obligation, see further
Nishimura (2010); on the content (character) see Economides (2010), 371.
220 breach

across all fields of international law – even though breaches themselves

may fall into different categories for the purposes of establishing when a
breach has occurred.25
It is true that in earlier drafts of the Articles distinctions were made
between various classifications and categories of obligation. In particu-
lar, obligations of conduct (also called obligations of means) were separ-
ated from obligations of result, and obligations of prevention were also
in their own class. It was ultimately decided that there was no need for
these categories to be expressly differentiated in the ARSIWA,26 but
some of the distinctions may still serve a useful purpose in practice. It
is also worth considering the effect that the difference between substan-
tive and procedural obligations could have on a determination of breach.

7.4.1 Obligations of conduct and result

Draft Articles 20 and 21, adopted on first reading, drew a distinction
between obligations of conduct and obligations of result. They provided
as follows:
Article 20
Breach of an international obligation requiring the adoption of a particular course of
conduct
There is a breach by a State of an international obligation requiring it to adopt
a particular course of conduct when the conduct of that State is not in conformity
with that required of it by that obligation.

Article 21
Breach of an international obligation requiring the achievement of a specified result
1. There is a breach by a State of an international obligation requiring it to
achieve, by means of its own choice, a specified result if, by the conduct
adopted, the State does not achieve the result required of it by that
obligation.
2. 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.

25
See ARSIWA, Arts. 14 and 15; Chapter 8.
26
See Crawford, Second Report, 10, 28–9; Summary record of the 2605th meeting, ILC Ybk
1999/I, 276–7.
 the material element 221

The distinction was seen as being ‘of fundamental importance in

determining how the breach of an international obligation is committed
in any particular instance’.27
The essential basis of the distinction is that obligations of conduct,
while they will have some purpose or result in mind, determine with
precision the means to be adopted; hence they are sometimes called
obligations of means.28 By contrast, obligations of result do not do so,
leaving it to the state party to determine the means to be used.29 The
commentary argues that which type of obligation should be imposed in
any case was not a matter for the Articles but for the authors of the
primary rule. But some generalizations can be attempted. Obligations of
conduct (involving either acts or omissions) are more likely to be
imposed in the context of direct state-to-state relations, whereas obliga-
tions of result predominate in the treatment of persons within the
internal legal order of each state.30 Obligations in the field of human
rights, for example, involve obligations of result, since they do not
prescribe precisely how the relevant rights are to be respected, and they
are consistent with a diversity of laws and institutions.31 In this sense the
distinction is implicated with a view of the state and of sovereignty: a
choice of means is more likely to exist in internal than in international
matters. But this is not a hard and fast rule. For example, a uniform law
treaty is conceived as imposing an obligation of conduct, requiring
immediate action to make the provisions of the uniform law a part of
the law of the state concerned (and perhaps nothing more than that).32
The distinction between obligations of conduct and result is unfamil-
iar to the common law tradition.33 It derives from civil law systems,
especially French law, which treats obligations of conduct as being in the
nature of ‘best efforts’ obligations, and obligations of result as being
tantamount to guarantees of outcome.34 However, the distinction as
27 28
Draft Articles Commentary, Art. 20, §4. See e.g. Economides (2010).
29 30
Draft Articles Commentary, Art. 20, §8. Ibid., §6.
31
The Draft Articles Commentary insisted that obligations as to the treatment of persons
by the state amounted to ‘extended obligations of result’, with the consequence that
they are not breached by incompatible enacting legislation until the legislation was
actually applied and put into effect and the state fails to remedy any resulting grievance;
but see the critical analysis in Crawford, Second Report, 24–6.
32
Draft Articles Commentary, Art. 20, §8. See Conforti, (1988) 24 RDIPP 233.
33
See Brownlie (1983), 241; Economides (2010), 375.
34
See Combacau’s lucid explanation of the function of the distinction in Kohen, Kolb and
Tehindrazanarivelo (eds.), Mélanges offerts à Paul Reuter: Le droit international, unité et
diversité (1981) 181, 196: ‘C’est . . . le degré de probabilité de la réalization de l’objectif
poursuivi par le créancier qui commande la nature de l’obligation imposée au débiteur:
222 breach

framed in the Draft Articles effectively – and for no apparent reason –

reversed the consequences that would attach to it, with obligations of
conduct treated as the more stringent, due to their determinacy.35
According to the commentary, the principal consequence for the pur-
poses of Draft Articles 20 and 21 was that
[t]he existence of a breach of an obligation of [result] is . . . determined in
international law in a completely different way from that followed in the case
of an obligation ‘of conduct’ or ‘of means’ where . . . the decisive criterion for
concluding that the obligation has been fulfilled or breached is a comparison
between the particular course of conduct required by the obligation and the
conduct actually adopted by the State.36

Governments and commentators were largely sceptical about the

value of retaining the distinction in the Draft Articles. Draft Articles 20
and 21 were seen as overly complex, as a source of confusion in their
obscure relationship to the traditional domestic law concepts, and as
relating to the content and meaning of the primary rules, rather than
secondary rules of responsibility.37 Evidence that international courts
and tribunals find the distinction useful in deciding questions of state
responsibility is also limited, and suggests that even where it is used as a
means of classifying obligations, the distinction is not applied consist-
ently.38 The question is usually one of interpretation of the relevant
obligation, and the value of the distinction lies in its relevance to the
measure of discretion left to the respondent state in carrying out the

là où la réalization en est hautement probable, la loi ou le contrat instituent des

obligations de résultat; là où elle est plus essentiellement aléatoire, ils se bornent à
réduire l’aléa et ne mettent en œuvre qu’une obligation de moyens.’ Translation: ‘It is . . .
the degree of probability of the achievement of the objective pursued by the creditor
which controls the nature of the obligation imposed on the debtor: where its
achievement is highly probable, the law or contract institutes obligations of result;
where it is essentially more unpredictable, [the law or contract] limits itself to reducing
the risk and engaging only an obligation of means.’ See also Dupuy, (1984) 188 Hague
Recueil 9, 47–8; Zweigert and Kötz (1998), 501–2.
35
See Crawford, Second Report, 21–2; ILC Ybk 1999/II(2), 57; Dupuy (1999), 375–8;
Economides (2010), 375–6.
36 37
Draft Articles Commentary, Art. 20, §5. Crawford, Second Report, 21–2.
38
Examples discussed in Crawford, Second Report, 22–4, include the decision of the
European Court of Human Rights in Colozza and Rubinat, (1985) 81 ILR 73; the decision of
the Chamber in Elettronica Sicula SpA (ELSI) (US v. Italy), ICJ Rep. 1989 p. 15; and the
decision of the Iran–US Claims Tribunal in Iran v. US, Case Nos. A1(IV) and A24, (1996) 32
Iran–US CTR 115 (for the final resolution of the case see Award 590-A15(IV)/A24-FT, 28
December 1998). To these may be added Bosnian Genocide, ICJ Rep. 2007 p. 43, 221, in
which the Court described the obligation to prevent genocide as an obligation of
conduct, not one of result.
 the material element 223

obligation. That discretion is necessarily constrained by the primary

rule, and the crucial issue of appreciation is, to what extent? The distinc-
tion may help in some cases in expressing conclusions on this issue;
whether it helps in arriving at them is another matter.39
Overall, the analysis of Draft Articles 20 and 21 yielded three conclu-
sions.40 First, while it may be possible accurately to classify certain
obligations as obligations of conduct or result, and while that may
illuminate the content or application of the norms in question, such a
classification is no substitute for the interpretation and application of
the norms themselves, taking into account their context and their object
and purpose. The problem with Draft Articles 20 and 21 was that they
implied the need for an intermediate process of classification of obliga-
tions before questions of breach could be resolved. But in the final
analysis, whether there has been a breach of an obligation always
depends on the precise terms of the obligation, and on the facts of the
case. Taxonomy may assist in, but is no substitute for, the interpretation
and application of primary rules.
A second and related conclusion is that it is difficult to overemphasize
the great variety of primary rules and the very different ways in which
they are stated; thus obligations of conduct and result do not present a
dichotomy but rather a spectrum. To take an example, UNCLOS Article
61 provides:
Conservation of the living resources
1. The coastal State shall determine the allowable catch of the living
resources in its exclusive economic zone.
2. The coastal State, taking into account the best scientific evidence available
to it, shall ensure through proper conservation and management
measures that the maintenance of the living resources in the exclusive
economic zone is not endangered by over-exploitation. As appropriate,
the coastal State and competent international organizations, whether
subregional, regional or global, shall co-operate to this end.
3. Such measures shall also be designed to maintain or restore populations
of harvested species at levels which can produce the maximum
sustainable yield, as qualified by relevant environmental and economic
factors, including the economic needs of coastal fishing communities
and the special requirements of developing States, and taking into
account fishing patterns, the interdependence of stocks and any
generally recommended international minimum standards, whether
subregional, regional or global.

39 40
Crawford, Second Report, 24. Ibid., 26–7.
224 breach

4. In taking such measures the coastal State shall take into consideration
the effects on species associated with or dependent upon harvested
species with a view to maintaining or restoring populations of such
associated or dependent species above levels at which their
reproduction may become seriously threatened.
5. Available scientific information, catch and fishing effort statistics, and
other data relevant to the conservation of fish stocks shall be contributed
and exchanged on a regular basis through competent international
organizations, whether subregional, regional or global, where
appropriate and with participation by all States concerned, including
States whose nationals are allowed to fish in the exclusive economic zone.

Article 61 contains a number of interrelated obligations, many with

qualifications (‘[a]s appropriate’, ‘as qualified by’, ‘where appropriate’).
Article 61(1) requires the coastal state to determine the ‘allowable
catch’ – apparently an obligation of conduct – but it seems clear that
not just any determination will suffice: there are ends to be achieved, but
expressed with varying degrees of firmness (‘shall ensure’, ‘shall . . . be
designed to maintain or restore populations’, ‘with a view to maintain-
ing or restoring populations’), factors, sometimes countervailing, to be
taken into account (‘the economic needs of coastal fishing commu-
nities’), and data to be exchanged (but with no express obligation to
collect it). Moreover Article 61 is to be read against the background of
Article 56, which gives the coastal state ‘sovereign rights for the purpose
of exploring and exploiting, conserving and managing the natural
resources, whether living or non-living’ of the exclusive economic zone
(EEZ). Such a complex provision – an entirely typical product of multilat-
eral negotiations – is not usefully parsed by reference to the distinction
between obligations of conduct and result.
Third, distinguishing between the two may be inconclusive if the
obligation in question is in truth a hybrid, or belongs to a different class –
for example, obligations of prevention (discussed below in the context of
Draft Article 23) or what the International Court has described as ‘obli-
gations of performance’.41
In any event, the distinction between obligations of conduct and obli-
gations of result was not retained in the text of ARSIWA. The commen-
tary to Article 12 notes that the distinction may assist in ascertaining
when a breach has occurred, but that it is not exclusive and ‘does not

41
In Gabčı́kovo-Nagymaros the Court found that the parties had accepted ‘obligations of
conduct, obligations of performance, and obligations of result’: ICJ Rep. 1997 p. 7, 77.
But the Court does not seem to have derived any conclusion from these descriptions.
 the material element 225

seem to bear specific or direct consequences as far as the present articles

are concerned’.42 Nonetheless, the terminology of conduct and result
seems to have been retained in the jurisprudence of the International
Court, at least to an extent. In the Avena cases,43 Mexico alleged that the
United States was in breach of the Vienna Convention on Consular
Relations44 (VCCR) due to the latter’s failure to extend consular assist-
ance to certain Mexican nationals in US courts.45 In Avena itself, the
Court found in favour of Mexico, and in the dispositif ordered
that the appropriate reparation in this case 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 . . . by
taking account both of the violation of the rights set forth in Article 36 of the
Convention and of paragraphs 138 to 141 of this Judgment.46

Thus it was left to the discretion of the United States to determine how
the judgment in Avena was to be implemented. To this end President Bush
issued a memorandum to the US Attorney General, providing that ‘the
United States will discharge its international obligations under the deci-
sion of the International Court of Justice . . . by having State courts give
effect to the decision in accordance with the general principles of comity
in cases filed against 51 Mexican nationals addressed in that decision’.47
Implementation of the decision at the level of the individual US courts,
while successful in some cases,48 was frustrated in others by domestic US
criminal procedure (specifically, by the procedural default rule).49 The

42
ARSIWA Commentary, Art. 12, §11.
43
Avena and Other Mexican Nationals (Mexico v. US), ICJ Rep. 2004 p. 12; Request for
Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other
Mexican Nationals (Mexico v. US) (Mexico v. US), ICJ Rep. 2009 p. 3. Further: Dupuy and
Hoss, ‘Avena and Other Mexican Nationals (Mexico v. United States of America)’, (2009)
MPEPIL.
44
24 April 1963, 596 UNTS 261.
45
Further; LaGrand (Germany v. US), ICJ Rep. 2001 p. 226.
46
Avena, ICJ Rep. 2004 p. 12, 72.
47
Memorandum for the Attorney General from the President of the United States of America on
Compliance with the Decision of the International Court of Justice in Avena, 28 February 2005,
www.unhcr.org/refworld/docid/429c2fd94.html. This gesture was reduced somewhat by
US Secretary of State’s 7 March 2005 declaration that the United States would be
withdrawing from the Optional Protocol to the Vienna Convention on Consular
Relations concerning the Compulsory Settlement of Disputes, 24 April 1963, 596 UNTS
497, depriving the Court of compulsory jurisdiction for all future claims.
48
See Torres v. Oklahoma, No. PCD-04-442 (Oklahoma Ct Crim App, 13 May 2004). Further:
Levit, (2004) 12 Tulsa JCIL 163; Finstuen, (2005) 58 Ok. LR 255.
49
See e.g. Sanchez-Llamas v. Oregon, 548 US 331 (2006); Medellı́n v. Texas, 552 US 491 (2008).
226 breach

latter prompted Mexico to request an interpretation of the Avena

judgment under Article 60 of the ICJ Statute50 on the basis that a dispute
had arisen between the parties as to the meaning and scope of the
relevant part of the dispositif, namely the meaning of the obligation of
result contained in paragraph 153(9) of the Avena judgment. The United
States resisted the application, on the basis that there was in reality no
disagreement between the parties – both agreed that paragraph 153(9) of
Avena imposed an obligation of result on the United States. What they
did not agree on, the argument ran, was whether the obligation had been
breached, a determination outside the jurisdiction of the Court in the
context of the interpretation of a prior judgment.
Despite making a determination at the provisional measures stage that
a dispute existed between the parties,51 the Court in Avena Interpretation
ultimately accepted the US argument and held that an interpretation
could not be given. It did, however, give an indication – albeit tangential –
as to the content of the obligation of result imposed on the United States
by the original Avena judgment. It said:
The Avena Judgment nowhere lays down or implies that the courts in the United
States are required to give direct effect to paragraph 153(9). The obligation laid
down in that paragraph is indeed an obligation of result which clearly must be
performed unconditionally; non-performance of it constitutes internationally
wrongful conduct. However, the Judgment leaves it to the United States to choose
the means of implementation, not excluding the introduction within a reason-
able time of appropriate legislation, if deemed necessary under domestic consti-
tutional law. Nor moreover does the Avena Judgment prevent direct
enforceability of the obligation in question, if such an effect is permitted by
domestic law. In short, the question is not decided in the Court’s original
Judgment and thus cannot be submitted to it for interpretation under Article
60 of the Statute.52

7.4.2 Due diligence and obligations of prevention

The Draft Articles continued the analysis of different kinds of obligations
by making special provision for obligations of prevention. Draft Article
23 provided as follows:
Breach of an international obligation to prevent a given event
When the result required of a State by an international obligation is the
prevention, by means of its own choice, of the occurrence of a given event, there

50
Further: Zimmerman and Thienal, in Zimmerman, Tomuschat and Oellers-Frahm (2006)
1275.
51 52
Avena Interpretation, Provisional Measures, ICJ Rep. 2008 p. 331, 326. Ibid.
 the material element 227

is a breach of that obligation only if, by the conduct adopted, the State does not
achieve that result.

The commentary dealt with obligations of prevention in the following

way:
The characteristic feature . . . is precisely the notion of an event, i.e., an act of
man or of nature which, as such, involves no action by the State . . . [I]f the result
which the obligation requires the State to ensure is that one or another event
should not take place, the key indication of breach of the obligation is the
occurrence of the event, just as the non-occurrence of the event is the key
indication of fulfilment of the obligation . . . [T]he non-occurrence of the event
is the result that the State is required to ensure, and it is the occurrence of the
event that determines that the result has not been achieved.53

The commentary went on to assert that in the cases of obligations of

prevention, the mere failure to prevent is not a sufficient condition for
responsibility, although it is a necessary one: ‘The State can obviously be
required only to act in such a way that the possibility of the event is
obstructed, that is, to frustrate the occurrence of the event as far as lies
within its power.’54
Thus obligations of prevention are not warranties or guarantees that
an event will not occur; rather, they are inherently obligations to take all
reasonable or necessary measures to ensure that the event does not
occur. Although it has been said that an obligation of prevention ‘is
essentially regarded as a duty of due diligence’,55 when it comes to
assessing breach, obligations of prevention may be distinguished from
obligations of due diligence in the ordinary sense. A true obligation of
prevention is not breached unless the apprehended event occurs,56
whereas an obligation of due diligence would be breached by a failure
to exercise due diligence, even if the apprehended result did not (or not
yet) occur.57 Thus obligations of due diligence are relative, not abso-
lute.58 Despite the close relationship between obligations of prevention
53 54
Draft Articles Commentary, Art. 23, §34. Ibid., Art. 23, §6.
55
Rao, Second Report on International Liability for Injurious Consequences Arising out of
Acts Not Prohibited by International Law (prevention of transboundary damage from
hazardous activities), ILC Ybk 1999/I, 116.
56
ARSIWA, Art. 14(3) provides that the breach of an international obligation requiring a
state to prevent a given event ‘occurs when the event occurs . . .’ (emphasis added).
57
See Draft Articles Commentary, Art. 23, §4 n. 6. On due diligence see further e.g.
McCaffrey, Fourth Report on the Law of the Non-navigational Uses of International
Watercourses, ILC Ybk 1988/II(1), 237–42; Pisillo-Mazzeschi, (1992) 35 GYIL 9; Rao,
Second Report, ILC Ybk 1999/I.
58
Economides (2010), 376.
228 breach

and those of due diligence (which also usually apply in the context of
prevention),59 the latter were omitted from Draft Article 23.
On one view 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’.60 On a traditional categor-
ization, however, the provision could also be construed as concerning an
obligation of means, and thus once again the traditional conduct/result
distinction was not clearly rendered in the Draft Articles.61 It is tempting
to analyse obligations of prevention as ‘negative’ obligations of result.
For such obligations, the result in question is not the occurrence of
something but its non-occurrence. On the other hand, whether this is
so depends on the interpretation of the particular primary rule. As an
example of an obligation of prevention, the Draft Articles Commentary
cites Article 22(2) of the Vienna Convention on Diplomatic Relations
(VCDR), which provides:
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 and to prevent any
disturbance of the peace of the mission or impairment of its dignity.62

According to the commentary, this is an obligation ‘whose breach

similarly takes place only if that result [i.e. intrusion, damage or disturb-
ance] can be seen not to have been ensured’.63
Although there are ‘pure’ obligations of prevention in the sense explained
in the Draft Articles Commentary, it is clear that VCDR Article 22(2)

59
In particular, obligations of due diligence are ‘the standard basis for the protection of the
environment from harm’: Commentary to the ILC’s Articles on Prevention of
Transboundary Harm from Hazardous Activities, Art. 3, ILC Ybk 2001/II(2), 138; they are
also particularly relevant in connection with protection of foreign nationals and their
property, and protection of diplomatic and consular agents. For examples of due
diligence obligations see e.g. Convention on the Law of the Non-navigational Uses of
International Watercourses, 21 May 1997, UN Doc. A/51/229 (not yet in force), Arts. 7(1),
21(2), 22; Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95, Art.
22(2); Council of Europe Convention on Preventing and Combating Violence against
Women and Domestic Violence, 12 April 2011, CETS 210, Art. 5(2). In the human rights
context see also the UN Declaration on Elimination of Violence against Women, GA Res.
48/104, 20 December 1993, Art. 4(c).
60
Economides (2010), 376. See also Hafner and Buffard, in Crawford, Pellet and Olleson
(2010) 521, 522.
61
Economides (2010), 376.
62
VCDR, 18 April 1961, 500 UNTS 95. See Draft Articles Commentary, Art. 23, §§4, 12 n. 19.
63
Ibid., §12. According to the commentary, diplomatic protests made at an earlier time are
concerned with securing performance of the obligation and do not raise issues of
responsibility: ibid.
 the material element 229

is not such an obligation. It is an obligation of conduct. No doubt it does not

involve a warranty or guarantee against intrusion, but it is a continuing
obligation on the host state to take all appropriate steps to protect the
mission, which becomes more demanding if for any reason the mission is
invaded or disturbed. In the Tehran Hostages case, the International Court
referred to these and other provisions of the VCDR as imposing on the
receiving state ‘the most categorical obligations . . . to take appropriate steps
to ensure the protection of’ the US missions and their personnel.64 It went
on to hold that, through its inaction in the face of various threats from the
militants,
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 . . . [I]n the opinion of the Court . . . the
failure of the Iranian Government to take such steps was due to more than mere
negligence or lack of appropriate means . . . This inaction of the Iranian Govern-
ment by itself constituted clear and serious violation of Iran’s obligations to the
United States under the provisions of article 22, paragraph 2 . . .65

Moreover, the interpretation of VCDR Article 22(2) favoured in the

Draft Articles Commentary is undesirable in principle; states should not
be able to neglect that ‘special duty’ on the basis that intrusion, damage
or disturbance has not yet occurred and may never occur.
A better example of an obligation of prevention, also mentioned in the
commentary to Draft Article 23,66 is the principle enunciated in the Trail
Smelter arbitration, that a state should use its best efforts to prevent
cross-border damage by pollution to a neighbouring state. The commen-
tary goes on to assert that, ‘[e]ven in the specific case of an obligation to
prevent an event, the presence of damage is not an additional condition
for the existence of an internationally wrongful act’.67 This is true if the
situation which has to be prevented is not defined in terms of the
occurrence of damage, but it may be so defined. States can assume

64
Tehran Hostages, ICJ Rep. 1980 p. 3, 30.
65
Ibid., 31–2. The Court concluded that the Iranian conduct ‘clearly gave rise to repeated
and multiple breaches of the applicable provisions of the Vienna Conventions even more
serious than those which arose from their failure to take any steps to prevent the attacks
on the inviolability of these premises’ (ibid., 35–6). See also Rosenne (1985), 50, 67. This
point was also made by Germany in its comments on Draft Articles, Art. 20: UN Doc.
A/CN.4/488, 67.
66
Draft Articles Commentary, Art. 23, §11. For the decision see (1938 and 1941) 3 RIAA
1905.
67
Draft Articles Commentary, Art. 23, §5.
230 breach

obligations to prevent damage to particular persons or to the territory of

other states, and it may be that on the proper interpretation of the
particular obligation it is the occurrence of the damage which triggers
responsibility, rather than the failure to take steps to prevent it. If
responsibility is engaged by the failure to act in and of itself, regardless
of the outcome, then the obligation is better categorized as an obligation
of due diligence. But not all obligations directed towards preventing an
event from occurring are of this kind, and it was not intended to be the
function of the ARSIWA to force all such obligations into a single form.
On the whole, Draft Article 23 and its commentary were problematic
for their confusing treatment of obligations of prevention. The reaction
from governments was lukewarm at best; the United Kingdom felt that
the provision was uncontroversial but unnecessary, whereas France and
others observed that once again the provision related more to primary
obligations than secondary rules and had no place in the Articles.68 In
the end the ILC decided to delete Draft Article 23, and the final adopted
text of the ARSIWA only mentions obligations of prevention in the
context of the temporal elements of breach.69
In the Bosnian Genocide case, the International Court had to consider
the specific obligation of prevention in Article I of the Genocide Conven-
tion.70 The Court was careful to observe that the duty to prevent varies
from one instrument to another, depending on the primary rules, and
that it was not establishing a general jurisprudence applicable to all
obligations of prevention.71 Nonetheless, its comments on prevention
are of interest for present purposes. First, the Court described the obli-
gation to prevent genocide as an obligation of conduct:
[I]t is clear that the obligation in question is one of conduct and not one of result,
in the sense that a State cannot be under an obligation to succeed, whatever the
circumstances, in preventing the commission of genocide: the obligation of
States parties is rather to employ all means reasonably available to them, so as
to prevent genocide so far as possible. A State does not incur responsibility simply
because the desired result is not achieved; responsibility is however incurred if
the State manifestly failed to take all measures to prevent genocide which were
within its power, and which might have contributed to preventing the genocide.

68
See Crawford, Second Report, 27.
69
ARSIWA, Art. 14(3); see further ARSIWA Commentary, Art. 14, §14. Further: Chapter 8.
70
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December
1948, 78 UNTS 277.
71
Bosnian Genocide, ICJ Rep. 2007 p. 43, 220–1.
 the material element 231

In this area the notion of ‘due diligence’, which calls for an assessment
in concreto, is of critical importance.72

The Court’s formulation of the obligation to prevent genocide as an

obligation of conduct reinforces the decision to delete Draft Article 23
from ARSIWA, and is preferable to the view that obligations of preven-
tion are obligations of result.73 Further, the Court’s position is consistent
with the traditional conception of obligations of conduct as best efforts
measures,74 as well as with the position on obligations of prevention
taken by the ILC in the context of its work on international liability for
injurious consequences arising out of acts not prohibited by inter-
national law.75
The decision is also noteworthy for its conclusion that a state can only
be held responsible for breaching the obligation to prevent genocide if
genocide was actually committed, which distinguishes it from an obliga-
tion of due diligence:
It is at the time when commission of the prohibited act (genocide or any of the
other acts listed in Article III of the Convention) begins that the breach of an
obligation of prevention occurs . . . [A] State’s obligation to prevent, and the
corresponding duty to act, arise at the instant that the State learns of, or should
normally have learned of, the existence of a serious risk that genocide will be
committed. From that moment onwards, if the State has available to it means
likely to have a deterrent effect on those suspected of preparing genocide, or
reasonably suspected of harbouring specific intent (dolus specialis), it is under a
duty to make such use of these means as the circumstances permit. However, if
neither genocide nor any of the other acts listed in Article III of the Convention
are ultimately carried out, then a State that omitted to act when it could have
done so cannot be held responsible a posteriori, since the event did not happen
which, under the rule set out above, must occur for there to be a violation of the
obligation to prevent.76

Thus, although the Court acknowledged that due diligence is an

important factor in discharging the obligation of prevention, the latter
cannot be categorized as an obligation of due diligence per se, because

72
Ibid., 221.
73
See also Economides (2010), 378. Cf. Hafner and Buffard (2010), 521–2.
74
The Court later described the obligations of prevention in the Genocide Convention as
‘positive obligations, to do their best to ensure that such acts do not occur’; Bosnian
Genocide, ICJ Rep. 2007 p. 43, 223.
75
Rao, Second Report on International Liability for Injurious Consequences Arising out of
Acts Not Prohibited by International Law (prevention of transboundary damage from
hazardous activities), ILC Ybk 1999/I, 116.
76
Bosnian Genocide, ICJ Rep. 2007 p. 43, 221–2.
232 breach

such an obligation would be breached by a state party’s failure to take

action, regardless of whether the prohibited event in fact took place. The
obligation to prevent genocide requires both a failure to take steps and
the occurrence of genocide before responsibility is triggered.77

7.4.3 Substantive and procedural obligations

As has already been emphasized, the primary content or character of an
obligation does not affect the basic question whether its breach, attrib-
utable to the state, amounts to an internationally wrongful act. Thus
substantive obligations and procedural obligations will be treated in the
same manner for the purposes of establishing responsibility.
It is conceivable, however, that the distinction between substance and
procedure may become relevant for determining whether an act has a
continuing character for the purposes of deciding when the breach has
occurred. For example, in the Rainbow Warrior arbitration, the tribunal
relied on Draft Article 25(1) as a basis for holding that France’s obliga-
tion to detain the two officers on the island of Hao had terminated in
1989.78 Normally, an obligation to do something by a certain date
would be interpreted as involving two distinct obligations – to do the
thing, and to do it in a timely manner – with the result that the
procedural failure to comply with the time frame does not terminate
the substantive part of the obligation. On the contrary, the state con-
cerned would normally be in continuing breach of the main obligation
after the due date for its performance. The position might be different
if the conduct required was of no value to the obligee after the due date,
for example an obligation to inform another state of the intention to do
something, prior to doing it; but once again this will be a matter for the
primary rules.

7.5 Specific issues

Beyond the generally applicable rules for determining whether a breach
has occurred, certain specific issues may sometimes arise which make
that determination more complicated.

77
This is consistent with ARSIWA, Art. 14(3), which provides 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’ (emphasis added).
78
(1990) 20 RIAA 215.
 the material element 233

7.5.1 Anticipatory breach

In some cases, determining whether a breach has occurred may involve
considering the conduct of a state before the alleged breach. If the breach
of an obligation is merely threatened, preventive or remedial action may
be called for, but the breach will by definition not yet have occurred.79
But what if the state takes preparatory steps that are not on their face
unlawful but which are unequivocally associated with an intention to
breach? The difficulty lies in distinguishing apprehended, imminent or
anticipatory breaches from existing ones, and it is closely linked to
questions about when a wrongful act – defined in all cases by reference
to the primary rule – can be said to have occurred.
In some domestic legal systems, the concept of ‘anticipatory breach’ is
used to cover the definitive refusal by a party to perform a contractual
obligation, in advance of the time laid down for its performance; it
includes steps taken to make performance impossible. Confronted with
an anticipatory breach, the affected party is entitled to terminate the
contract and sue for damages.80 The notion of anticipatory breach is
particularly well established in common law jurisdictions; it was born
in 1853 in the English case of Hochster v. de la Tour.81 More recently the
doctrine has been framed in the English courts as follows:
The basis of the doctrine is that where a party to a contract before the date for
performance has arrived evinces an intention not to perform his part of the
contract, he has committed no breach until the date for performance arrives.
Nevertheless the innocent party will be relieved of his obligations under the
contract, if he so chooses, so as to render him free to arrange his affairs unham-
pered by the continued existence of those obligations.82

Other systems achieve similar results without using this concept, for
example by construing a refusal to perform in advance of the time for
performance as a ‘positive breach of contract’.83 There appears to be no
equivalent in international law, but VCLT Article 60(3)(a) defines a mater-
ial breach as including ‘a repudiation . . . not sanctioned by the present

79
Crawford, Second Report, 28.
80
See e.g. Ballantine, (1924) 22 Mich. LR 329; Gulotta, (1976) 50 Tulane LR 927, 927–33;
Kötz (1998), 508.
81
Hochster v. de la Tour, (1853) 2 El and Bl 678, 118 ER 922. See also Frost v. Knight, (1872) LR
7 Ex 111.
82
Gunton v. Richmond Borough Council, [1980] 3 WLR 714, 729A-B (Buckley LJ), cited in Tullett
Prebon Plc & Ors v. BGC Brokers LP & Ors, [2011] EWCA Civ 131, §46.
83
Zweigert and Kötz (1998), 494 (German law).
234 breach

Convention’, and it is clear that such a repudiation could occur in

advance of the time for performance.
The issue of anticipatory breach arose in the Gabčı́kovo-Nagymaros
case.84 Following Hungary’s refusal to continue with the project, as
provided for in a bilateral treaty of 1977, Czechoslovakia began actively
planning for, and subsequently building, a unilateral substitute scheme
(the so-called ‘Variant C’), using installations jointly constructed for the
original project and some additional elements constructed on Czechoslo-
vak territory. Variant C was actually implemented when the Danube was
diverted by means of the new installations, in October 1992. The Court
held that Variant C was unlawful for various reasons, notwithstanding
the prior Hungarian breach of the 1977 treaty. But the question was, at
what point had the Czechoslovak breach occurred?
The Court held (by a majority of nine to six) that the breach had not
occurred until the actual diversion of the Danube in October 1992. It
noted:
that between November 1991 and October 1992, Czechoslovakia confined itself
to the execution, on its own territory, of the works which were necessary for the
implementation of Variant C, but which could have been abandoned if an
agreement had been reached between the parties and did not therefore predeter-
mine the final decision to be taken. For as long as the Danube had not been
unilaterally dammed, Variant C had not in fact been applied.85

Considerations of sovereignty clearly played a part in the Court’s

decision; a state may construct whatever installations it wishes on its
own territory, and may for its own reasons invest whatever resources it
chooses into executing works such as those required for the implemen-
tation of Variant C, even though actually putting the plan into operation
would amount to a breach of its obligations. As the Court observed,
A wrongful act or offence is frequently preceded by preparatory actions which
are not to be confused with the act or offence itself. 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’ . . .86

Thus the Court distinguished between the actual commission of a

wrongful act and conduct of a preparatory character. Such conduct does

84 85
ICJ Rep. 1997 p. 7. Ibid., 54.
86
Ibid., citing Draft Articles Commentary, Art. 41. On this point six judges (President
Schwebel; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Rezek) dissented.
 the material element 235

not itself amount to a breach if it does not ‘predetermine the final

decision to be taken’. But whether that is so in any given case will depend
on the precise facts and on the content of the primary rule. The ARSIWA
does not include specific provision for anticipatory breach.87

7.5.2 Illusory obligations

Another aspect of domestic contract law that could have implications for
the question of determining breach in the context of state responsibility
is the doctrine of illusory obligations or illusory promises. In domestic
law it is a ground for invalidating a contract where one party remains
free not to perform.88
Illusory obligations in international law are those undertakings of
states that may appear to be obligations but which are in fact non-
binding, such as voluntary aid programmes or other acts that are motiv-
ated by political interests and comity instead of legal obligation. To
‘breach’ such understandings could not amount to breach in terms of
ARSIWA Article 12; at most it could be categorized as ‘unfriendly con-
duct’ along the lines of measures of retorsion,89 but it would not engage
the state’s responsibility.
The point may be illuminated by a comparison of the decisions of the
High Court of Australia in the Tasmanian Dam case90 and of the Inter-
national Court in Oil Platforms.91 Both cases concerned treaties which
contained arguably illusory ‘obligations’. In the former, the High Court
considered the Convention for the Protection of the World Cultural and
Natural Heritage,92 Article 4 of which makes provision for each state
party, inter alia, to identify, protect and conserve their natural and
cultural heritage for future generations, ‘to the utmost of its own
resources and, where appropriate, with any international assistance
and co-operation, in particular, financial, artistic, scientific and tech-
nical, which it may be able to obtain’. Article 5(d) provides that, in order
to ensure that adequate measures of preservation and conservation are
undertaken, states ‘take the appropriate legal, scientific, technical,
administrative and financial measures necessary for the identification,
protection, conservation, presentation and rehabilitation of this
heritage’.
87 88
See ARSIWA Commentary, Art. 14, §13. See Lowe, (2007) 6 WUGSLR 703, 710.
89
See ARSIWA Commentary, Pt III, Ch. II, §3.
90
Commonwealth v. Tasmania, (1983) 68 ILR 266. Generally: Zines, in Lee and Winterton
(eds.), Australian Constitutional Landmarks (2003) 262.
91 92
Oil Platforms (Iran v. US), ICJ Rep. 2003 p. 161. 16 November 1972, 1037 UNTS 151.
236 breach

On the basis of these provisions, the Commonwealth government

enacted measures to prevent the construction of a large hydroelectric
dam on the Franklin River in Tasmania.93 Under the terms of the Aus-
tralian Constitution, such measures could only be passed if they fell
within a recognized head of Commonwealth power. To this end, the
Commonwealth relied inter alia on section 51(xxix),94 which gives the
power to legislate with respect to ‘external affairs’, an area which
includes legislation giving effect to treaty obligations.95 The question,
then, was whether Articles 4 and 5 gave rise to ‘obligations’. With
respect to this, Gibbs CJ (dissenting) said:
It is . . . impossible to conclude that arts 4 and 5 were intended to impose a legal
duty of that kind on the States Parties to the Convention. If the conduct which
those articles purport to prescribe was intended to be legally enforceable, the
obligations thereby created would be of the most onerous and far reaching kind.
The obligations would extend to any property which might reasonably be
regarded as cultural or natural heritage within the meaning of arts 1 and 2 of
the Convention, whether or not it was included on the World Heritage List, and
would require a State Party to the Convention to take all legal measures within
its constitutional power that might reasonably be regarded as appropriate for the
identification and protection of such property, and to apply all of its financial
resources that it could possibly make available for the same purpose . . . The very
nature of these obligations is such as to indicate that the States Parties to the
Convention did not intend to assume a legal obligation to perform them.96

This assessment of Articles 4 and 5, however, was contradicted by the

majority of the Court. Mason J held that ‘Article 5 imposes a series of
obligations on parties to the Convention, one of which is the obligation
dealt with in [paragraph] (d) which includes the taking of legal meas-
ures’,97 and, further, that the provisions ‘[impose] binding obligations on
Australia’.98 Brennan J expressed a qualified agreement to this, holding
that ‘[t]here is a clear obligation upon Australia to act under [Articles] 4
and 5, though the extent of that obligation may be affected by decisions
taken by Australia in good faith’.99 Deane J commented that ‘[h]owever
loosely such obligations may be defined, it is apparent that Australia, by

93
See the World Heritage Properties Conservation Act 1983 (Cth).
94
Further: Zines, The High Court and the Constitution (5th edn, 2008), ch. 13.
95
Ibid., 377–91; de Jonge, in Shelton (ed.), International Law and Domestic Legal Systems (2011)
23, 28–42.
96
Tasmanian Dam, (1983) 68 ILR 266, 301. See also ibid., 390–2 (Wilson J, dissenting).
Dawson J (dissenting) accepted that the relevant provisions constituted obligations only
for the sake of argument: ibid., 495.
97 98 99
Ibid., 340. Ibid., 341. Ibid., 423.
 the material element 237

depositing its instrument of ratification, bound itself to observe the

terms of the Convention and assumed real and substantive obligations
under them.’100
Oil Platforms concerned claims under the US–Iran Treaty of Amity,
Economic Relations and Consular Rights.101 Iran accused the United
States of breaching Article X(1) of the Treaty (guaranteeing ‘[b]etween
the territories of the two High Contracting Parties . . . freedom of com-
merce and navigation’) by virtue of the latter’s destruction of three
Iranian oil platforms in the Persian Gulf, supposedly in self-defence.
But Iran also claimed that by its actions, the United States had breached
Article I of the Treaty, which provides that ‘[t]here shall be firm and
enduring peace and sincere friendship between the United States of
America and Iran.’ The United States contended that Article I could not
be used to found the jurisdiction of the Court, an argument which was
accepted.102 The Court noted that the form of words used in the clause
was common to a number of other treaties of friendship and commerce
or economic relations which the United States had concluded with a
variety of countries after the end of the Second World War. Article
I appeared to be purely preambular in nature, and was entirely without
substantive weight.103 In the light of this, the Court concluded that
the objective of peace and friendship proclaimed in Article I of the Treaty of 1955
is such as to throw light on the interpretation of the other Treaty provisions, and
in particular of Articles IV and X. Article I is thus not without legal significance
for such an interpretation, but cannot, taken in isolation, be a basis for the
jurisdiction of the Court.104

The Court found that it possessed jurisdiction only under Article X.105
As this contrast suggests, the determination of whether or not a treaty
provision is ‘illusory’ is a matter of treaty interpretation. In Tasmanian
Dam, the Convention – notwithstanding the reservations of Gibbs

100
Ibid., 454–5. Murphy J took an ever broader view of the power, not confined to the
implementation of international obligations: ibid., 373.
101
15 August 1955, 284 UNTS 93.
102
Oil Platforms, Preliminary Objections, ICJ Rep. 1996 p. 803, 814–15.
103
Ibid., 815. This impression was reinforced by a message from the Secretary of State to
the Senate concerning the equivalent provision in the United States–Ethiopia Treaty of
Amity and Economic Relations, 7 September 1951, 206 UNTS 41:
Such provisions, though not included in recent treaties of friendship, commerce
and navigation, are in keeping with the character of such instruments and
serve to emphasize the essentially friendly character of the treaty.
104 105
Ibid. Ibid., 820.
238 breach

CJ – clearly levelled some form of obligation on the parties, with the

relatively open-ended discretion granted to Australia reminiscent not of
an illusory obligation but of an obligation of result. In contrast, the
hortatory statement reflected in Article I of the Treaty in Oil Platforms
was revealed in context to be little more than an interpretive tool.

7.5.3 ‘Non-violation complaints’

It is not uncommon for states to complain that another state is causing
them some sort of loss or injury in circumstances where the latter state
is not actually in breach of its international obligations in the sense of
ARSIWA Article 12. Notably, a procedure for ‘non-violation complaints’
is specifically provided for in the WTO.106 General Agreement on Tariffs
and Trade 1994 (GATT) Article XXIII:1107 provides for dispute resolution
processes
[i]f any contracting party should consider that any benefit accruing to it
directly or indirectly under this Agreement is being nullified or impaired or
that the attainment of any objective of the Agreement is being impeded as the
result of
(a) the failure of another contracting party to carry out its obligations
under this Agreement, or
(b) the application by another contracting party of any measure, whether or
not it conflicts with the provisions of this Agreement, or
(c) the existence of any other situation.108

Thus the Dispute Settlement Body can be called on to consider nullifi-

cation or impairment of benefits independently of any question of
breach of a covered agreement.
Non-violation complaints such as those envisaged by Article XXIII:1(b)
have been described as a ‘legal fantasy’.109 But through the development
of the case law three basic conditions for a successful non-violation

106
See generally Spitzer, The Non-violation Complaint in WTO Law (2004).
107
Marrakesh Agreement establishing the World Trade Organization, 15 April 1994, 1867
UNTS 3, Annex 1A: General Agreement on Tariffs and Trade 1994.
108
Emphasis added. See also Marrakesh Agreement establishing the World Trade
Organization, 15 April 1994, 1867 UNTS 3, Annex 2: Understanding on the Rules and
Procedures Governing the Settlement of Disputes, Art. 26; Annex 1B: General
Agreement on Trade in Services, Art. XXIII:3; Annex 1C: Agreement on Trade-Related
Aspects of Intellectual Property Rights, Art. 64. Outside the WTO context see e.g. North
American Free Trade Agreement, Ch. 20, Annex 2004, which also permits complaints
based on proposed measures that have not yet been applied.
109
Pescatore, (1993) 27 JWT 5, 19.
 the material element 239

complaint under GATT have emerged:110 first, that a reciprocal conces-

sion was negotiated; second, that a governmental measure not inconsist-
ent with GATT was subsequently introduced, which upset the
competitive relationship between the bound product and directly com-
petitive products from other origins; and, third, that the measure could
not have been reasonably anticipated by the party to whom the binding
was made at the time of the negotiation of the tariff concession. As
Petersmann observes, these conditions suggest that non-violation com-
plaints are based on broad legal principles of effectiveness of treaty
obligations (effet utile), reciprocity and bona fide protection of ‘reasonable
expectations’.111 As for the secondary consequences of a finding of non-
violation nullification or impairment, however, the respondent state is
not under any obligation to withdraw the measure in question.112 In any
case, non-violation complaints remain very rare, and in the WTO system
no non-violation complaint has yet succeeded in isolation from a viola-
tion complaint.113 Non-violation complaints are seen as exceptional and
to be approached with caution.114
Another context in which disputes may arise over harm caused with-
out a breach of an international obligation is in the area of transbound-
ary harm from activities that are hazardous but not unlawful.115 The
scope of transboundary damage is not restricted to environmental
damage, although it is likely to be the most significant category covered.
To summarize, no breach does not necessarily mean there is no harm,
or no remedy. But the secondary legal consequences of state conduct that
has injurious effects for other states without breaching the former
state’s obligations fall outside the scope of the state responsibility regime
in ARSIWA. Rather, the consequences of lawful activity with injurious
effects will be prescribed by the primary rules and obligations applicable
in the circumstances.

110
For a detailed analysis see Spitzer (2004), 32–68.
111
Petersmann, The GATT/WTO Dispute Settlement System: International Law, International
Organizations and Dispute Settlement (1997), 172. For a discussion of the relevant GATT
case law see ibid., 150–70; for cases considered by panels see the first Appellate Body
report on GATT, Art. XXIII:1(b), EC – Measures Affecting Asbestos and Asbestos-Containing
Products, 12 March 2001, WT/DS135/AB/R, §§185–9, esp. n. 188.
112
Dispute Settlement Understanding, Art. 26:1(b).
113
Van den Bossche, The Law and Policy of the World Trade Organization (2nd edn, 2008), 185.
See also Petersmann (1997), 136.
114
Japan – Measures Affecting Consumer Photographic Film and Paper, 22 April 1998, WT/DS44/R,
§§10.36–10.37; EC – Asbestos, 12 March 2001, WT/DS135/AB/R, §186.
115
See generally Xue, Transboundary Damage in International Law (2003). See further Chapter 2.
8 Breach: the temporal element

8.1 Introduction
The breach of an international obligation is an act occurring in time. As
seen in Chapter 7, the material aspect of breach is dealt with in ARSIWA
Article 12. The corresponding questions of ‘what’ happened ‘when’ are
addressed in ARSIWA Articles 13–15. While these provisions, in the
abstract, were relatively uncontroversial when adopted, they have
proved problematic in their application – a situation not helped by the
fact that many preliminary challenges before international courts and
tribunals concern temporal jurisdiction (jurisdiction ratione temporis).1
The temporal element of breach involves two interrelated issues, to be
considered in turn. The first is the so-called intertemporal law – in
essence, the question of the law applicable to the relevant state at the
time of the alleged breach (ARSIWA Article 13). The second question
relates to the character of the breach itself, and whether it is resolved
immediately (an instantaneous breach), results in a continuing illegal
situation (a continuing breach) or is itself composed of multiple acts
which are considered unlawful by reason of their systematic relation to
each other (a composite breach). This is not just an analytical distinction:
the temporal character of a breach is taken into account in a number of
areas of international law that may be dispositive for the resolution of a
claim, including the temporal jurisdiction of an international court or

1
See e.g. Statute of the International Court of Justice, 26 June 1945, 15 UNCIO 355, Arts.
36(2), (3). Also Mavrommatis Palestine Concessions, (1924) PCIJ Ser. A No. 2, 35; Phosphates in
Morocco, (1938) PCIJ Ser. A/B No. 74, 26–8; Right of Passage over Indian Territory (Portugal v.
India), ICJ Rep. 1960 p. 6, 33–6; Northern Cameroons (Cameroon v. UK), Preliminary
Objections, ICJ Rep. 1963 p. 15, 128–9 (Judge Fitzmaurice). Further: Pauwelyn, (1995) 66
BYIL 415, 435–40.

240
 the temporal element 241

tribunal, the time at which diplomatic protection may be exercised, the

admissibility of a claim, and the remedies available.2

8.2 The intertemporal law3

8.2.1 Applications of the principle
8.2.1.1 Island of Palmas and Huber’s restatement
When discussing the intertemporal law, the standard initial reference is
to the dictum of Max Huber as arbitrator in the Island of Palmas case:
a juridical fact must be appreciated in light of the law contemporary with it, and
not of the law in force at the time when the dispute in regard to it arises or fails
to be settled.4

This statement reflects the maxim ‘tempus regit actum’ (‘time rules the
act’), already a principle of international law when it was restated by
Huber. The immediate context there was territorial acquisition, not state
responsibility. In applying the principle to the effect of ‘discovery’ in the
sixteenth century, Huber held that
[t]he effect of discovery [of the contested territory] by Spain is therefore to be
determined by the rules of international law in force in the first half of the sixteenth
century – or (to take the earliest date) in the first quarter of it, that is, at the time
when the Portuguese or Spaniards made their appearance in the Sea of Celebes.5

He then moved to introduce an additional aspect of the rule, noting that

[a]s regards the question which of different legal systems prevailing at successive
periods is to be applied in a particular case (the so-called inter-temporal law), a
distinction must be made between the creation of rights and the existence of rights.
The same principle which subjects the acts creative of a right to the law in force at the
time the right arises, demands that the existence of a right, in other words its
continued manifestation, shall follow the conditions required by the evolution of law.6

This second proposition does not prima facie sit easily with Huber’s
earlier statement: it appears to envisage that a right (or, conversely, an
obligation) which has been duly created under international law is not
necessarily stable but may evolve materially over time, increasing or
2
Pauwelyn (1995), 429–50; Salmon, in Crawford, Pellet and Olleson (2010) 383, 383.
3
Elias, (1980) 74 AJIL 285; Karl, in Spinedi and Simma (1987) 95, 106–14; Higgins, (1997) 46
ICLQ 501; Buyse, (2006) 75 Nordic JIL 63; Gardiner, Treaty Interpretation (2008), 252–3;
Kotzur, ‘Intertemporal law’, (2008) MPEPIL; Tavernier, in Crawford, Pellet and Olleson
(2010) 397; Brownlie’s Principles, 218–19.
4
Island of Palmas (Netherlands/US), (1928) 2 RIAA 829, 845. Further: Jessup, (1928) 22 AJIL 735.
5 6
(1928) 2 RIAA 829, 845. Ibid.
242 breach

decreasing in scope according to circumstance. Unlike the basic rule of

the intertemporal law, this appears to have been a novel contribution by
Huber7 and has been criticized, principally on the basis that its applica-
tion may lead to instability of title.8 That is not to say, however, that it is
incapable of being sensibly applied in other contexts.9

8.2.1.2 The intertemporal law and the law of treaties

The intertemporal law has important implications for the application
and interpretation of treaties, as several provisions of the Vienna Con-
vention on the Law of Treaties (VCLT) demonstrate.10 Thus VCLT Article
28 provides:
Unless a different intention appears from the treaty or is otherwise established,
its provisions do not bind a party in relation to any act or fact which took place or
any situation which ceased to exist before the date of the entry into force of the
treaty with respect to that party.11

In Ambatielos, the International Court rejected a Greek argument that

the treaty under consideration could be given retroactive application.
The Court observed:
To accept this theory would mean giving retroactive effect to Article 29 of
the Treaty of 1926, whereas Article 32 of this Treaty states that the Treaty,
which must mean all the provisions of the Treaty, shall come into force immedi-
ately upon ratification. Such a conclusion might have been rebutted if there had
been any special clause or any special object necessitating retroactive interpret-
ation. There is no such clause or object in the present case. It is therefore
impossible to hold that any of its provisions must be deemed to have been in
force earlier.12

An important corollary of the intertemporal law in the context of

treaties is the requirement that treaties and other international
7
See Jessup (1928), 739–40, referring to the proposition as Huber’s ‘theory’.
8
Lauterpacht, The Function of Law in the International Community (1933, repr. 2011), 283–5;
Jennings, (1967) 121 Hague Recueil 320, 422; Brownlie’s Principles, 218. Cf. Kotzur (2008),
§6. However, the two elements of the Island of Palmas case are less antithetical than they
may seem; stability due to the creation, and flexibility due to evolution in the existence
of rights, should be conceived as complementary principles.
9
See e.g. Minquiers and Ecrehos (France/UK), ICJ Rep. 1953 p. 47, 56; Western Sahara, ICJ Rep.
1975 p. 12, 38; ibid., 168 (Judge de Castro).
10
See e.g. Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331, Arts. 4,
28, 64, 71. Further: Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties
(2009), 379; Dopagne, in Corten and Klein (2011) 718.
11
Further: Villiger (2009), 379; Dopagne (2011).
12
Ambatielos (Greece v. UK), Preliminary Objection, ICJ Rep. 1952 p. 27, 40.
 the temporal element 243

instruments be interpreted in light of the conditions which subsided at

their time of conclusion.13 This was described by Fitzmaurice as the
‘principle of contemporaneity’, according to which
the terms of a treaty must be interpreted according to the meaning which they
possess, or which would have been attributed to them, and in light of the current
linguistic usage, at the time when the treaty was originally concluded.14

Contemporaneity was acknowledged by Waldock as ILC Special Rap-

porteur on the Law of Treaties as the counterpart to Huber’s restatement
in Island of Palmas.15 Although provisionally adopted by the ILC as a facet
of the unitary rule of interpretation in VCLT Article 31,16 it was not
incorporated expressly in the final text. But the ILC accepted Waldock’s
observation that it was an aspect of ‘common sense and good faith,
and . . . also implicit in the rule that the meaning of terms is to be
determined by reference to the context of the treaty and to its objects
and purposes’.17 It has been consistently adopted as an interpretative
rubric by international courts and tribunals.18 In its Namibia Advisory
Opinion the Court affirmed ‘the primary necessity of interpreting an
instrument in accordance with the intention of the parties at the time of
its conclusion’.19 In Cameroon v. Nigeria, the International Court held that
its role was to ‘ascertain the intention of the parties at the time’ that the

13
Elias (1980), 296–305; Rosenne, Developments in the Law of Treaties 1945–1986 (1989),
76–80; Jennings and Watts (eds.), 1 Oppenheim’s International Law (9th edn, 1992),
1281–2; Gardiner (2008), 64; Dawidowicz, (2011) 24 LJIL 201, 205–11.
14
Fitzmaurice, (1957) 33 BYIL 203, 212, 225–7.
15
Waldock, Third Report on the Law of Treaties, ILC Ybk 1964/II, 55.
16
Ibid., 56, and Draft Art. 69(1)(b) and commentary, ibid., 199.
17
Waldock, Sixth Report on the Law of Treaties, ILC Ybk 1966/II, 96, and Draft Art. 31 and
commentary, ibid., 222.
18
Rights of Nationals of the United States in Morocco (France v. US), ICJ Rep. 1952 p. 176, 189;
Right of Passage, ICJ Rep. 1960 p. 6, 37; Gabčı́kovo-Nagymaros Project (Hungary/Slovakia),
ICJ Rep. 1997 p. 7, 124 (President Bedjaoui); Eritrea and Yemen (Territorial Sovereignty),
(1998) 114 ILR 1, 46, 115; Kasikili/Sedudu Island (Botswana/Namibia), ICJ Rep. 1999 p. 1045,
1062; ibid., 1112 (Judge Higgins); Eritrea–Ethiopia Boundary Delimitation Decision, (2002) 130
ILR 1, 34. Most emphatically, see Aegean Sea Continental Shelf (Greece v. Turkey), ICJ Rep.
1978 p. 3, 63 (Judge de Castro, diss.):
The meaning of words may change with time. In order to interpret any
statement, to ascertain its real meaning, we must first of all concentrate on the
meaning which it could have had at the time when it was made. Words have no
intrinsic value in themselves . . . Their semantic value depends on the time and
circumstances in which they were uttered.
19
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Rep. 1971 p. 16, 31.
244 breach

relevant treaty was entered into.20 This approach was supported by Judge
Skotnikov and Judge ad hoc Guillaume in the Navigational and Related
Rights case.21 Whether it was adopted by the Court in that case is
discussed below.

8.2.1.3 The intertemporal law and the ILC’s work on

responsibility
From the beginning of its work on responsibility the ILC embraced the
intertemporal principle. Thus it stressed that an act of state will only be
considered to be a breach for the purposes of the Articles where it is in
violation of a rule of international law binding on the state at the time of
the act.22
The importance attached by the ILC to the intertemporal law in the
context of state responsibility was first evidenced by the adoption of
Draft Article 18 on first reading.23 Draft Article 18 consisted of five
lengthy paragraphs, the first two of which functioned as a restatement
of the intertemporal law. These read:
(1) An act of the State which is not in conformity with what is required of it by
an international obligation constitutes a breach of that obligation only if the act
was performed at the time when the obligation was in force for the State.
(2) However, an act of the State which, at the time 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 an internationally wrongful act if, subse-
quently, such an act has become compulsory by virtue of a peremptory norm of
international law.

20
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial
Guinea intervening), ICJ Rep. 2002 p. 303, 346; cf. the Separate Opinion of Judge Al-
Khasawneh, ibid., 500 (the role of the interpreter is to ‘enquire into the quality of the
juridical act in the light not only of the alleged practice, but in light of the totality of the
law’).
21
Navigational and Related Rights (Costa Rica v. Nicaragua), ICJ Rep. 2009 p. 213, 283–4 (Judge
Skotnikov); ibid., 297–9 (Judge ad hoc Guillaume).
22
See further the definition provided by the Institut de Droit International’s 1975
Resolution I on The Intertemporal Problem in International Law (Weisbaden, 11 August
1975), Art. 1:
Unless otherwise indicated, the temporal sphere of application of any norm of
public international law shall be determined in accordance with the general
principle of law by which any fact, action or situation must be assessed in light of
the rules which are contemporaneous with it.
23
The provision was provisionally adopted in 1976, well before the development of the
temporal elements of a wrongful act (Draft Articles, Arts. 24–6) on which it depended:
Karl (1987), 107 n. 74.
 the temporal element 245

The basic position of Draft Article 18(1) was considered relatively

uncontroversial and was quickly slated for retention.24 The deletion of
Draft Article 18(2), on the other hand, was broadly supported, as it catered
for a purely hypothetical situation.25 The provision was eventually refor-
mulated after a fashion as ARSIWA Article 26, to be returned to presently.
Following minor amendment of the Special Rapporteur’s proposed
wording by the Drafting Committee,26 Draft Article 18(1) was retained
as ARSIWA Article 13:
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.

This is merely an application of Huber’s basic restatement of the

intertemporal law in the Island of Palmas case,27 but it functions as an
important guarantee for states in terms of claims of responsibility. It
has, however, been criticized on the basis that it does not give sufficient
scope to the second part of Huber’s remarks and to the capacity of
international law to evolve over time.28

8.2.2 Some qualifications

8.2.2.1 Retrospective acceptance of responsibility
The intertemporal law is subject to qualification. Perhaps the most
straightforward caveat is that a state may expressly agree to have a later
law apply to its past acts, or for a treaty to evolve in meaning over time.
The former situation, though extremely rare,29 occurred in the Alabama
arbitration.30 Article VI of the 1871 Treaty of Washington31 defined the
applicable law of the dispute. In the course of the negotiations preceding
the treaty, the parties had been unable to achieve a common position,
and the provision itself recorded the inability of the British government
to agree that rules set down in Article VI were in force at the time of the
contested acts. Nonetheless, the arbitrators took it that the British gov-
ernment had agreed to be so bound.32

24
Crawford, Second Report, 17; ILC Ybk 1999/II(2), 56–7.
25
Ibid. Also Crawford, Second Report, 21–3; Tavernier (2010), 401.
26 27
ILC Ybk 1999/I, 277; ILC Ybk 2001/I, 95. ARSIWA Commentary, Art. 13, §1.
28 29
Tavernier (2010), 396–400. ARSIWA Commentary, Art. 13, §6.
30
Alabama Arbitration (Great Britain v. US) (1872), in Moore, 1 Int. Arb. 495. Further: Cook, The
‘Alabama’ Claims (1975); Bingham (2005); Bingham (2006).
31
Treaty between Great Britain and the United States for the Amicable Settlement of all
Causes of Difference between the Two Countries, 8 May 1871, 143 CTS 145.
32
Moore, 1 Int. Arb. 495, 654, 657.
246 breach

An example of the latter situation may be seen in Mavrommatis Palestine

Concessions, where the Permanent Court permitted a treaty to be given
retroactive effect on the basis of a special provision contained in that
treaty:
An essential characteristic of Protocol XII [is] that its effects extend to legal
situations dating from a time previous to its own existence. If provision were
not made in the clauses or in the Protocol for the protection of rights recognized
therein as against infringements before the coming into force of that instrument,
the Protocol would be ineffective as regards the very period at which the rights in
question are most in need of protection.33

Situations such as these are described in VCLT Article 28 as ‘a different

intention [of the parties appearing] from the treaty or . . . otherwise
established’. While its application in the case of treaties is sound, the
ILC was more circumspect in extending the scope of the principle more
generally to the context of state responsibility.34 Nonetheless, the com-
mentary makes reference to this qualification in the following terms:
[I]t is appropriate to apply the intertemporal principle to all international obliga-
tions, and article 13 is general in its application. It is however 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 obligation in force for
that State.35

The commentary notes that the lex specialis rule contained in ARSIWA
Article 55 can be used to deal with those rare cases where responsibility
is accepted retroactively.36

8.2.2.2 Evolutive interpretation of treaties37

As stated, the basic position regarding the temporal interpretation of
treaties is that of contemporaneity. But the meaning of a treaty is not
frozen in time, and in particular international courts and tribunals have
sometimes seen fit to depart from the intentions of the parties at the
time of conclusion of a treaty. This process is known as the ‘progressive’,
‘dynamic’ or ‘evolutive’ interpretation of treaties, and may be seen as

33 34
(1924) PCIJ Ser. A No. 2, 34. Tavernier (2010), 399–400.
35
ARSIWA Commentary, Art. 13, §6. Further: Tavernier (2010), 396–400.
36
ARSIWA Commentary, Art. 13, §6.
37
Bernhardt, (1999) 42 GYIL 12; Gardiner (2008), 253–6; Fitzmaurice, (2008) 21 Hague YIL
101; Fitzmaurice (2009) 22 Hague YIL 3; Fitzmaurice, in Orakhelashvili and Williams
(eds.), Forty Years of the Vienna Convention on the Law of Treaties (2010) 55; Dawidowicz
(2011).
 the temporal element 247

motivated by the second aspect of Huber’s dictum in Island of Palmas

concerning ‘the conditions required by the evolution of law’.38
The technique was first identified by the International Court in
Namibia.39 As we have seen, the Court began its discussion by identifying
as cardinal the principle of contemporaneity,40 but then moved to intro-
duce an evolutionary interpretation of the League of Nations mandate
system. More particularly, one of the contested issues of that case related
to the argument that the ‘C’ mandate for South West Africa could be
distinguished in a qualitative sense from class ‘A’ and ‘B’ mandates of
other nations. South Africa emphasized the contemporaneous intentions
of the parties, namely their intention that ‘C’ mandates should be effect-
ively assimilated to colonies.41 The Court rejected this argument on the
basis that
the Court is bound to take into account the fact that the concepts embodied in
Article 22 of the Covenant – ‘the strenuous conditions of the modern world’ and
‘the well-being and development’ of the peoples concerned – were not static, but
were by definition evolutionary, as also therefore was the concept of the ‘sacred
trust’. The parties to the Covenant must consequently be deemed to have
accepted them as such.42

A concise statement of the position was provided by the Court in

Navigational and Related Rights:
[T]here are situations in which the parties’ intent upon conclusion of the treaty
was, or may be presumed to have been, to give the terms used – or some of
them – a meaning or content capable of evolving, not one fixed once and for all,
so as to make allowance for, among other things, developments in international
law. In such instances, it is indeed in order to respect the parties’ common
intention at the time the treaty was concluded, not to depart from it, that
account should be taken of the meaning acquired by the terms in question upon
each occasion on which the treaty is to be applied.43

The case concerned the interpretation of the 1858 Treaty of Limits44

between Costa Rica and Nicaragua, which gave Nicaragua sovereignty
over the San Juan river as a border between the two countries, but
reserved for Costa Rica navigational rights ‘con articulos de comercio’

38
(1928) 2 RIAA 829, 845. Cf. Dupuy, in Cannizzaro (ed.), The Law of Treaties Beyond the
Vienna Convention (2011) 123, who divides instances of evolutive interpretation into those
supported by ‘memory’ and those tending towards ‘prophecy’.
39
Further: Dupuy (2011), 128–9; Dawidowicz (2011), 215–16.
40 41 42
ICJ Rep. 1971 p. 16, 31. Ibid., 28. Ibid., 31.
43 44
ICJ Rep. 2009 p. 213, 242. 15 April 1858, 118 CTS 439.
248 breach

(the meaning of which was disputed) along a 141-km stretch of the river.
The question for the Court was whether this expression encompassed
Costa Rican tourist traffic along the river, or was by its terms limited to
freight transport only. The Court concluded that the phrase called for an
evolutionary interpretation:
[W]here the parties have used generic terms in a treaty, the parties necessarily
having been aware that the meaning of the terms was likely to evolve over time,
and where the treaty has been entered into for a very long period or is ‘of
continuing duration’, the parties must be presumed, as a general rule, to have
intended those terms to have an evolving meaning. This is so in the present case
in respect of the term ‘comercio’ as used in Article VI of the 1858 Treaty. First, this
is a generic term, referring to a class of activity. Second, the 1858 Treaty was
entered into for an unlimited duration; from the outset it was intended to create
a legal regime characterized by its perpetuity.45

In this light, the Court held that ‘comercio’ had to be understood as

possessing a meaning contemporary to each application of the treaty,
rather than that which it might have borne at the time the treaty was
concluded, finding in favour of Costa Rica on the issue.46
Evolutionary interpretation does not contradict the basic premise of
the intertemporal law. In Mavrommatis Palestine Concessions, it was held
that the intertemporal law may be qualified where the express consent
of the parties is given – and similar qualifications may arise in the
presence of implicit agreement, for example where the parties employ
‘generic’ terminology as part of establishing a treaty regime of perpetual
(or at the least extensive) duration. While arguments made be made that
these indicia cut across the grain of legitimate treaty interpretation,47
from the point of view of the intertemporal law and ARSIWA Article 13
the wider process of evolutive interpretation may be legitimate.
Evolutive interpretation has been notably present in the jurisprudence
of human rights courts and tribunals. As Bernhardt has said:
If it is the purpose of a treaty to create longer and lasting and solid relations
between the parties, or to guarantee personal freedoms to citizens as well as
foreigners, it is hardly compatible with the purpose to eliminate new develop-
ments in the process of treaty interpretation. Multilateral treaties creating

45 46
ICJ Rep. 2009 p. 213, 243. Ibid., 244.
47
See e.g. Namibia, ICJ Rep. 1971 p. 16, 277 (Judge Fitzmaurice, diss.); Aegean Sea, ICJ Rep.
1978 p. 3, 62–3 (Judge de Castro, diss.); Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 121–2
(Judge Bedjaoui); Navigational and Related Rights, ICJ Rep. 2009 p. 213, 284 (Judge
Skotnikov).
 the temporal element 249

international organizations and human rights conventions are outstanding

examples of the need for evolutive treaty interpretation.48

For example, in Tyrer the European Court of Human Rights stressed

that the ECHR constituted
a living instrument which, as the Commission rightly stressed, must be inter-
preted in the light of present-day conditions. In the case now before it the Court
cannot but be influenced by the developments and commonly accepted standards
in the penal policy of the member States of the Council of Europe in this field.49

This position taken by the Court in Tyrer has served as a leitmotif for
the interpretation of the ECHR.50 It has been applied, inter alia, to the
patrimonial rights of children,51 conceptions of marriage,52 extradition
and the death penalty,53 and, in the case of Loizidou, to the right to
property.54 The conception of the ECHR as ‘special’ in such a context
may be seen in Ireland v. United Kingdom, where it was held that
[u]nlike other treaties of the classic 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 ‘collective enforcement’.55

From the point of view of state responsibility, no further discussion of

the matter is required. The question is essentially one of the correct
application of VCLT Article 31. It was for this reason that the ILC did
not consider the European Court of Human Rights to be any different
from the International Court insofar as the effect of evolutionary inter-
pretation on the intertemporal law was concerned.56 The commentary to
ARSIWA Article 13 states:
The basic principle stated in article 13 is thus well established. One possible
qualification concerns the progressive interpretation of obligations . . . But the

48
Bernhardt (1999), 16–17. Further: Fitzmaurice (2010), 55–9.
49
Tyrer v. United Kingdom, [1978] ECtHR 5856/72, § 31. This statement is reminiscent of the
International Court’s declaration in Namibia that ‘an international instrument has to be
interpreted and applied within the framework of the entire legal system prevailing at
the time of interpretation’: Namibia, ICJ Rep. 1971 p. 16, 31.
50 51
Dupuy (2011), 135. Marckx v. Belgium, (1979) 58 ILR 561, 589–90.
52
Johnson and Ors v. Ireland, [1986] ECtHR 9697/82, §53.
53
Soering v. UK, (1989) 98 ILR 270, 308–9.
54
Loizidou v. Turkey, Preliminary Objections, (1995) 103 ILR 622, 645–6.
55
Ireland v. UK, (1978) 58 ILR 188, 291.
56
Crawford, Second Report, 17–18. But cf. Higgins (1997), 517: ‘the inter-temporal
principle of international law, as it is commonly understood, does not apply in the
interpretation of human rights obligations’.
250 breach

intertemporal principle does not entail that treaty provisions are to be inter-
preted as if frozen in time. The evolutionary interpretation of treaty provisions is
permitted in certain cases but 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.57

8.2.2.3 New peremptory norms

With respect to the intertemporal application of peremptory rules of
international law, the general position remains the same. As the com-
mentary makes clear, the rules of state responsibility
can extend to acts of the utmost seriousness, and the regime of responsibility in
such cases will be correspondingly stringent. But even when a new peremptory
norm of general international law comes into existence, as contemplated by
[VCLT Article 64], this does not entail any retrospective assumption of
responsibility.58

Thus peremptory rules of international law cannot be retrospectively

applied absent the agreement of the state alleged to have ‘breached’ the
norm at some point in the past to have the later law applied to the
question of its responsibility.
What ARSIWA Article 13(1) fails to address is the interaction between
a new peremptory rule of international law and a pre-existing legal
obligation (as opposed to a simple act). Originally contained in Draft
Article 18(2), a paragraph considering the operation of new peremptory
norms on the intertemporal law in such a context was deleted on second
reading.59 The remnants of Draft Article 18(2) were folded into what
eventually became ARSIWA Article 26. This provision acts as a saving
clause to ARSIWA Chapter V, which considers circumstances precluding
wrongfulness, and provides materially that none of the excuses con-
tained therein will ‘preclude the wrongfulness of any act of a State which
is not in conformity with an obligation arising under a peremptory norm
of international law’. The commentary to the provision states:
Where there is an apparent conflict between primary obligations, one of which
arises for a State directly under a peremptory norm of general international law,
it is evident that such an obligation must prevail. The processes of interpretation

57
ARSIWA Commentary, Art. 13, §9.
58
Ibid., §5. Cf. Tavernier (2010), 400–1: ‘[the] statement is not explicit and would certainly
merit further development’.
59
Tavernier, in Crawford, Pellet and Olleson (2010) 397, 400–1.
 the temporal element 251

and application should resolve such questions without any need to resort to the
secondary rules of State responsibility. In theory one might imagine a conflict
arising on a subsequent occasion between a treaty obligation, apparently lawful
on its face and innocent in its purpose, and a peremptory norm. If such a case
were to arise it would be too much to invalidate the treaty as a whole merely
because its application in the given case was not foreseen. But in practice such
situations seem not to have occurred. Even if they were to arise, peremptory
norms of international law generate strong interpretive principles which will
resolve all or most apparent conflicts.60

This position would tend to indicate that while an international obli-

gation will not be automatically voided by virtue of its inconsistency
with a peremptory norm subsequently crystallized, a breach will not
occur where the earlier norm is breached by a party which observes
the later, peremptory, obligation at the expense of the former – even
where responsibility for breach of the earlier norm is already on foot.
Thus the emergence of a new peremptory norm is considered to be a
circumstance precluding wrongfulness that has retrospective applica-
tion. This broadly replicates the terms of Draft Article 18(2), although
the commentary reiterates one of the reasons that this provision was
deleted on second reading. As was noted by the Special Rapporteur,
Article 18, paragraph 2, contemplates nothing less than an act, specifically
prohibited by international law on day one, should itself have become compulsory
by virtue of a new norm of ius cogens on day two, or at least within such a period
of time as to allow issues of responsibility on day one to remain live but unre-
solved. Not even the slavery cases provide an example of this situation.61

8.2.3 Termination of the primary obligation

The final question on the interaction of the intertemporal law with state
responsibility concerns the effect of the termination of the norm on
which a claim of responsibility is based.62 While a terminated norm
evidently cannot be used as a new basis of claim, responsibility once
accrued is not erased by the subsequent termination of the obligation in
question. Thus, as the commentary notes, the intertemporal law ‘is not
only a necessary but a sufficient basis of responsibility’.63 The principle
expressed is similar to that of VCLT Article 70(1)(b), which provides that
60 61
ARSIWA Commentary, Art. 26, §3. Crawford, Second Report, 19.
62
Tavernier (2010), 396, 399.
63
ARSIWA Commentary, Art. 13, §7:
In other words, once responsibility has accrued as a result of an internationally
wrongful act, it is not affected by the subsequent termination of the obligation,
252 breach

the termination of a treaty ‘does not affect any right, obligation or legal
situation of the parties created through the execution of the treaty prior
to its termination’. As Lord McNair remarked, ‘such claims acquire an
existence independent of the treaty whose breach gave rise to them’.64
This applies equally to situations of state responsibility not based on a
treaty.
This rule is supported by the dictum of the International Court in
Northern Cameroons, where it said that
if during the life of the Trusteeship the Trustee was responsible for some act in
violation of the terms of the Trusteeship agreement which resulted in damage to
another Member of the United Nations or to one of its nationals, a claim for
reparation would not be liquidated by the termination of the Trust.65

A similar situation arose in the Rainbow Warrior arbitration between

New Zealand and France.66 There, a term of the 1986 exchange of
letters67 under which two French security agents were repatriated, pro-
vided that the French government was obliged to detain its agents on the
Pacific island of Hao ‘for a period of not less than three years’. In
December 1987, one of the agents, Major Marfart, was removed from
the island without New Zealand’s consent, ostensibly for medical
reasons. In May 1988, the second agent, Captain Prieur, was also evacu-
ated to Paris for medical and other compassionate reasons, again without
New Zealand’s consent. New Zealand protested, and in 1989 France
agreed to refer the matter to arbitration.68
The arbitral tribunal found that as France’s obligation to detain the
agents on Hao was only ever intended to run for ‘a period of . . . three years’
it was exhausted by 1990, when the award was handed down. But that did
not mean that France’s breach was excused. The tribunal remarked:
If the breach was a continuous one . . . that means that the violated obligation
also had to be running continuously and without interruption. The ‘time of
commission of the breach’ constituted an uninterrupted period, which was not
whether as a result of the termination of the treaty which has been breached or
of a change in international law.
64
Ambatelios, Preliminary Objections, ICJ Rep. 1952 p. 28, 63.
65
Northern Cameroons, Preliminary Objections, ICJ Rep. 1963 p. 15, 35.
66
Rainbow Warrior (New Zealand/France), (1990) 20 RIAA 215. Further: Wexler (1987); Hoss
and Morgan-Foster (2010).
67
As adjudicated by the UN Secretary-General: Rainbow Warrior (New Zealand/France), (1986)
74 ILR 256, 271–2.
68
Supplementary Agreement between the Government of the French Republic and the
Government of New Zealand relating to an Arbitral Tribunal, 14 February 1989, 1559
UNTS 249.
 the temporal element 253

and could not be intermittent, divided into fractions or subject to intervals. Since
it had begun on 22 July 1986, it had to end on 22 July 1989, at the expiry of the
three years stipulated.
Thus, while France continues to be liable for the breaches which occurred
before 22 July 1989, it cannot be said today that France is now in breach of its
international obligations.
This does not mean that the French Government is exempt from responsi-
bility on account of the previous breaches of its obligations, committed
while these obligations were in force . . . Consequently, the claims advanced
by New Zealand have an existence independent of the expiration of the First
Agreement and entitle New Zealand to obtain adequate relief for these
breaches.69

Again, in Phosphate Lands Australia’s administration of the Trust Terri-

tory of Nauru expired in 1968; Nauru brought its claim relating to the
administration in 1989. The International Court, applying a relatively
liberal standard of laches, declined to hold the claim inadmissible on
account of delay, but said that
it will be for the Court, in due time, to ensure that Nauru’s delay in seising it will
in no way cause prejudice to Australia with regard to both the establishment of
the facts and the determination of the content of the applicable law.70

The Court indicated that, according to the intertemporal law, it was

required to apply the Trustee Agreement for Nauru, which had termin-
ated on Nauru’s independence in 1968. The case settled before the merits
phase could be completed.71

8.3 Duration of the breach72

The second question which arises in considering the temporal element of
breach is the duration of the breach itself. The ILC envisaged several
categories of breach, each of which has different implications for the law
of state responsibility. The ARSIWA, relevantly, conceive of instantan-
eous breaches (ARSIWA Article 14(1)), continuing breaches (ARSIWA
Articles 14(2) and (3)) and composite breaches (ARSIWA Article 15).

69
(1990) 20 RIAA 215, 266.
70
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, ICJ Rep. 1992
p. 240, 235–5.
71
See the Settlement Agreement between Australia and Nauru, 10 August 1993, 1770
UNTS 379.
72
Brownlie (1983), Ch. XII; Karl (1987), 98–106; Pauwelyn (1995); Salmon (2010); van
Pachtenbeke and Haeck, [2010] 1 EHRLR 47.
254 breach

A fourth category – a complex breach – was introduced by Ago into the

Draft Articles on the first reading, but it was deleted during the second.73
As conceived of in ARSIWA Articles 14 and 15, no a priori distinction is
drawn between obligations of conduct, result and prevention. State
responsibility in this sense is concerned only with the existence of an
internationally unlawful situation as defined by a relevant primary
norm. Once the situation is identified, it is possible to determine whether
the breach in question is instantaneous, continuing or composite – but
beyond this, the basic contours of the law remain unaffected.

8.3.1 Instantaneous breaches

The first category of act conceived under the ARSIWA is ordinarily called,
for the sake of convenience, an ‘instantaneous breach’.74 This connotes
that the act and its consequences are fixed at a particular point in time.75
The concept is reflected in ARSIWA Article 14(1) as follows:
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 commentary itself gives no examples as to what may constitute an
instantaneous or non-continuing breach. However, the commentary to
its predecessor, Draft Article 24,76 includes a number of examples,77
such as the military forces of one state shooting down an aircraft from
another state lawfully flying over the territory of the former, the latter, a
third state, or a res communis area (e.g. the shooting down of Iran Air
73
Further: Crawford, Second Report, 20–9.
74
Karl (1987), 99–100; Pauwelyn (1995), 418. The term emerges from the Draft Articles
Commentary, Art. 24, §5 n. 417, which links the adjective ‘instantaneous’ to the general
theory of internal law, and to domestic crimes such as murder, the infliction of injury,
and arson. The term has also been employed by the International Court: Gabčı́kovo-
Nagymaros, ICJ Rep. 1997 p. 7, 54. Salmon suggests that ARSIWA, Art. 14(1) neglects to
take into account the preparation time inherent in any internationally wrongful act,
however short it may be: Salmon (2010), 384–5.
75
Salmon (2010), 384:
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.
76
The wording of which was substantially similar to ARSIWA, Art. 14(1):
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.
77
Draft Articles Commentary, Art. 24, §6.
 the temporal element 255

Flight 655 over the Strait of Hormuz by surface-to-air missiles fired by

the USS Vincennes on 3 July 198878); the torpedo boat or submarine of a
belligerent state sinking a neutral or unarmed non-combatant ship on
the high seas (e.g. the sinking of the US-flagged SS Robin Moor by the
German U-Boat U-69 on 21 May 194179); the police of one state (or its
agents) killing or wounding the representative of another state; or
organs of a state confiscating or destroying the building in which a
foreign diplomatic mission has its headquarters (e.g. the destruction by
US forces of the Chinese embassy in Belgrade on 7 May 1999 during
Operation Allied Force, the NATO bombing of Yugoslavia80). What all
these situations have in common is that the wrongful act itself can be
narrowed down to a single date – virtually a single moment in time – and
anything that continues afterwards represents the effects of the breach,
rather than a continuation of the act itself.81
It is not always easy to separate the continuation of the illegal act from
its effects. For example, in Phosphates in Morocco,82 the French govern-
ment accepted the jurisdiction of the Court by way of a declaration dated
25 April 1931, which provided that jurisdiction was accepted with
respect to ‘any disputes which may arise after ratification . . . with regard
to situations or facts subsequent to such ratifications’.83 Accordingly,
one of the key tasks of the Court was to fix the date of the wrongful
act relative to the declaration. The contested acts were a decision of
the Moroccan Department of Mines dated 8 January 1925 depriving
M. Tassara, an Italian citizen, of his property, and decrees of 1920
establishing a monopoly on the exploitation of phosphate reserves –
both prima facie in breach of France’s international obligations.
Italy attempted to bridge the temporal gulf between France’s acts
and its ratification of the Court’s jurisdiction by claiming that the
Department’s decision and the legislative monopoly were continuing
acts, that ‘extend[ed] over a period of time, so that when they [became]

78
Gray (2008), 162.
79
The incident was the subject of one of President F. D. Roosevelt’s famous fireside chats,
in which he declared the sinking to be ‘under circumstances violating long-established
international law and violating every principle of humanity’: Roosevelt, The Fireside Chats
of Franklin Delano Roosevelt (2007), 84.
80
Murphy, 1 (2002), 99–1c02.
81
See Karl (1987), 99: ‘Such acts may be preceded by long preparations and have durable
effects (such as the lasting physical disability of passengers); this does not, however, stop
them from being instantaneous acts.’
82
Phosphates in Morocco, Preliminary Objections, (1938) PCIJ Ser. A/B No. 74.
83
Ibid., 10.
256 breach

complete, in the sense that all their constituent elements [were] present,
they [did] not thereby cease to exist but continue[d] remaining identical
with a permanent character’.84 The Permanent Court disagreed, holding
that the decision of the Department was an instantaneous act with
lasting effects –
[a] definitive act which would, by itself, directly involve international responsi-
bility. This act being attributable to the State and described as contrary to the
treaty right of another State, international responsibility would be established
immediately as between the two States.85

The Court adopted a similar approach towards the phosphate monop-

oly, as it could not ‘be considered separately from the legislation of
which it is the result’.86 The Court continued:
If, by establishing the monopoly, Morocco and France violated [France’s inter-
national obligations], that violation is the outcome of the dahirs of 1920. In those
dahirs are to be sought the essential facts constituting the alleged monopoliza-
tion and, consequently, the facts which really gave rise to the dispute regarding
this monopolization. But these dahirs are ‘facts’ which, by reason of their date,
fall outside the Court’s jurisdiction.87

This position was the subject of dissent by Judges van Eysinga and
Cheng Tien-Hsi. The latter remarked:
The monopoly, although instituted by the legislation of 1920, is still existing
today. If it is wrongful, it is wrongful not merely in its creation but in its
continuance . . . This prejudice does not merely continue from an old existence
but assumed a new existence every day, so long as the legislation that first
created it remains in force.88

The view of the dissenters is reflected in modern commentaries on the

subject.89 But the question was not whether there was wrongful conduct
subsisting in 1931 when the French declaration was ratified: it is
whether Italy’s claim was one ‘with regard to situations or facts subse-
quent to’ that date. Any breach had its immediate and direct source in

84
Phosphates in Morocco, Observations and Submissions submitted by the Italian
Government, (1938) PCIJ Ser. C No. 84, 494.
85
(1938) PCIJ Ser. A/B No. 74, 28. This view was confirmed in both dissenting opinions: 33
(Judge van Eysinga); 36 (Judge Cheng Tien-Hsi). As the latter put it,
If [the declaration] was wrongful, it was a wrong done in 1925. If it subsists, it
subsists simply as an injury unredressed; but it does no new mischief, infringes
no new right, and therefore gives rise to no new fact or situation. Considered as a
wrong, it is not an existing fact, but entirely a thing of the past.
86 87 88 89
Ibid., 26. Ibid. Ibid., 36. See e.g. Pauwelyn (1995), 419–20.
 the temporal element 257

the decisions made by Moroccan authorities prior to that date; these

decisions were the very subject matter of the claim and the conditions
laid down in France’s own declaration were thus not met.
A further area which is the cause of disagreement is that of expropri-
ation of property. It may be considered that the taking of the property
itself is an instantaneous act, with the situation of deprivation that
follows reflective only of its consequences, as opposed to the act itself.90
This may be seen in the decision of the General Claims Commission in
Mariposa Development Company.91 The Commission was established by way
of a 1926 convention,92 ratified by way of exchange of instruments on 3
October 1931. The Commission’s jurisdiction ratione temporis did not
extend to acts occurring after the date of ratification.93
The case concerned an order of the Supreme Court of Panama dated 20
October 1931 (i.e. after the date of ratification) depriving the claimant of
its title. The order was in turn based on a law dated 27 December 1928
which permitted the recovery of public goods in the possession of indi-
viduals. The Commission considered that simple enactment of a law
making expropriation possible was not in breach of international law –
rather, the breach only crystallized with the decision of the Court, and
was completed in that moment. It said:
It was not until the rendition of the Supreme Court’s opinion that the possession
of the Mariposa Development Company was interfered with and its titles can-
celed. The Commission does not assert that legislation might not be passed of
such a character that its mere enactment would destroy the marketability of
private property, render it valueless and give rise forthwith to an international
claim, but it is the opinion of the Commission that ordinarily, and in this case, a
claim for the expropriation of property must be held to have arisen when the
possession of the owner is interfered with and not when the legislation is passed
which makes the later deprivation of possession possible.94

90
This was the view that was held by the ILC during Ago’s tenure: ILC Ybk 1976/II(2), 93;
Draft Articles Commentary, Art. 24, §7.
91
Mariposa Development Company v. Panama (US/Panama), (1933) 6 RIAA 338.
92
US–Panama Claims Convention, 28 July 1926, 138 LNTS 120.
93
(1933) 6 RIAA 338, 338–9.
94
Ibid., 940. See also ibid., 941:
Practical common sense indicates that the mere passage of an act under which
private property may later be expropriated without compensation by judicial or
executive action should not at once create an international claim on behalf of
every alien property holder in the country. There should be a locus penitentiae for
diplomatic representation and executive forbearance, and claims should arise
only when actual confiscation follows.
258 breach

Accordingly, the Commission dismissed the case for want of jurisdic-

tion ratione temporis.
Such questions depend very much on the facts of each case and the
precise basis of claim. An outright, acknowledged expropriation (e.g. by
decree or judicial decision) may well occur and be completed on a given
day, whereas a ‘creeping’ expropriation consisting of a series of acts
together amounting to virtual deprivation is in a different category –
even though the source of obligation may be the same. A fortiori if what is
complained about is not expropriation but refusal of access to property,
such as with a freezing order, the consequences may differ.95 This was
the basis of the decision of the European Court of Human Rights in
Loizidou.96 Turkey’s declaration accepting jurisdiction with respect to
the Court was valid only with respect to disputes arising after 22 June
1990. Turkey asserted that the property in the northern part of Cyprus
which was the subject of the dispute, although initially the subject only
of occupation, had turned into a full expropriation with the passage of
the Constitution of the Turkish Republic of Northern Cyprus (TRNC) in
1985. Thus, it argued, the Court lacked jurisdiction ratione temporis. The
Court treated the matter as a denial of access to property rather than an
expropriation.97 This allowed it to rule that every day that the claimant
was prevented from accessing her property continued the breach, carry-
ing it past the date of Turkey’s declaration and bringing it within the
Court’s jurisdiction.98 The case is distinguishable from Phosphates in
Morocco: the French declaration in the latter case was limited to claims
having their origin after the critical date, whereas Turkey’s reservation
to the European Convention was not so limited; it was sufficient that the
claim continued to arise after that date.

8.3.2 Continuing breaches

8.3.2.1 The concept of continuing breach
The counterpart of the ‘instantaneous act’ is the continuing act. In the
context of the ARSIWA,99 this is expressed in Article 14(2) as follows:

95 96
Pauwelyn (1995), 420–1. Loizidou v. Turkey, (1996) 108 ILR 443.
97
A conclusion motivated, in part, by the fact that any expropriation would have been
caused by the TRNC, an entity whose acts could not be recognized by the Court as a
matter of international law: ibid., 461–2.
98
Ibid., 462. Cf. the dissent of Judge Jambrek, 275–9.
99
The concept emerged early in the work of the ILC, being reflected in Draft Art. 25(1),
which declared that in the event of a continuing violation
 the temporal element 259

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.

In essence, a continuing wrongful act is characterized by a course of

conduct which extends over a period of time, remaining in breach of
international law throughout.100 The commentary states that the con-
tinuing act ‘occupies the entire period during which the act continues
and remains not in conformity with the international obligation, pro-
vided that the State is bound by the international obligation during that
period’.101 The concept of the continuing act is also relevant in cases of
succession as between states, as the continuation of an unlawful state of
events by a successor state is one of the exceptional situations in which
there may be succession to responsibility.102 Where the continuing act
concerns an obligation to prevent a given event, such as the obligation
contained in Article 22(2) of the Vienna Convention on Diplomatic Rela-
tions103 (VCDR) as breached by Iran in the Tehran Hostages case,104 or the
obligation to prevent transboundary harm established in the Trail Smelter

the breach . . . occurs at the moment when the 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.
100
Further: Karl (1987), 100; Salmon (2010), 386–7. Pauwelyn links this definition to the
concept in Belgian and French law of ‘infractions continus ou successives/voortdurende
misdrijven’, referred to also in common law jurisdictions as ‘continuing wrongs’:
Pauwelyn (1995), 417.
101
ARSIWA Commentary, Art. 14, §3.
102
See e.g. the case of Greece in the Lighthouses Arbitration, in which the continuation of an
unlawful situation initiated by Cretan authorities while under Turkish suzerainty
(namely Claim No. 4, the maintenance of a discriminatory concession) by Greece
resulted in succession to responsibility with respect to the entirety of the continuing
act: Lighthouses Arbitration between France and Greece (Claims Nos. 11 & 4), (1956) 23 ILR 81,
89–90. Further: Chapter 13.
103
16 April 1961, 500 UNTS 95, Art. 22(2):
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 and to prevent any
disturbance of the peace of the mission or the impairment of its dignity.
104
United States Diplomatic and Consular Staff in Tehran (US v. Iran), ICJ Rep. 1980 p. 3, 31–2:
[T]he 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 stop
it before it reached its completion . . . [I]n the opinion of the Court . . . the failure
of the Iranian Government to take such steps was due to more than mere
negligence or lack of appropriate means . . . This inaction of the Iranian
Government by itself constituted clear and serious violation of Iran’s obligations
to the United States under [VCDR Article 22].
260 breach

arbitration,105 ARSIWA Article 14(3) provides that ‘[t]he breach of [such]

an international obligation . . . occurs when the event occurs and extends
over the entire period during which the event continues and remains not
in conformity with that obligation.’106 Thus the focus of the inquiry is on
the situation contrary to international law on foot, and its duration.
Examples of this species of breach abound in the case law of the
International Court.107 Perhaps the most obvious example is Tehran
Hostages,108 where the continued detention of US diplomatic personnel
by the Iranian state – following the latter’s adoption of the actions of
non-state actors as its own within the meaning of ARSIWA Article 11 –
was in continuing violation of Iran’s responsibilities towards the United
States under the VCDR. Another example is Gabčı́kovo-Nagymaros, in
which the Hungarian non-performance of its agreement109 with Slovakia
regarding the damming of the Danube river constituted a continuing
breach for as long as the performance was not renewed.110 Conversely,
the Slovakian implementation of the so-called ‘Variant C’, which
diverted the Danube further onto Slovakian territory, was held to be in
breach of the same agreement vis-à-vis Hungary until such time as its
original course was restored.111 Most recently, the Court in Questions
Relating to the Obligation to Prosecute or Extradite112 held that Senegal’s
failure to try or extradite the former president of Chad, Hissène Habré,
for acts of torture and crimes against humanity constituted a continuing
breach of multiple provisions of the Convention Against Torture.113

105
Trail Smelter (Canada/United States), (1941) 1 IELR 278, 301:
[N]o State has the right to use or permit the use of its territory in such a manner
as to cause injury by fumes in or to the territory of another or the properties or
persons therein, when the case is of serious consequence and the injury is
established by clear and convincing evidence.
106
Further: Salmon (2010), 390–1.
107
The Commentary gives a variety of examples, such as the maintenance of legislative
provisions incompatible with the treaty obligations of the enacting state, the unlawful
detention of an embassy official or unlawful occupation of embassy premises,
maintenance of force by colonial domination, unlawful occupation of part of the
territory of another state or stationing armed forces in another state without its
consent: ARSIWA Commentary, Art. 14, §3. Also Salmon (2010), 386.
108
ICJ Rep. 1980 p. 3, 35–7.
109
Treaty concerning the Construction and Operation of the Gabčíkovo-Nagymaros System
of Locks, 16 September 1977, 1109 UNTS 211.
110 111
[1997] ICJ Rep. 17, 46. Ibid., 54, 57.
112
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ, 20 July
2012, §§71–117.
113
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 10 December 1984, 1465 UNTS 85, Arts. 5(2), 6(2), 7(1).
 the temporal element 261

Two bodies which have continuously sought (not always successfully)

to advance understanding of continuing breaches are the European
Commission on Human Rights and the European Court of Human
Rights.114 The Commission made one of the earliest identifications of
the concept in De Becker v. Belgium.115 In that case, a newspaper editor was
found guilty by the Belgian courts of collaborating with the German
occupation forces from 1940 to 1943. The final sentence – following an
appeal from the death penalty – was for life imprisonment accompanied
by the forfeiture of certain civil and political rights.116 This forfeiture
stood even after the claimant’s conditional release and emigration to
France in 1951. He subsequently brought a claim before the Commis-
sion, alleging breach of ECHR Article 10, with the Commission conclud-
ing that the case was admissible on the basis that although the
legislation under which the claimant was convicted entered into force
before the ECHR, it was of continuing effect:
It should be recalled, in this connection, that, in accordance with the general
principles of international law, borne out by the spirit of the Convention as well
as by the preliminary work, the Contracting Parties have undertaken, without
prejudice to the provisions of Article 64 of the Convention, to ensure that their
domestic legislation is compatible with the Convention and, if need be, to make
any necessary adjustments to this end, since the Convention is binding on all the
authorities of the Contracting Parties, including the legislative authority. It
follows that the Commission is competent to consider whether the domestic
legislation of the Contracting Parties is compatible with the Convention, and
that this competence exists likewise in respect of Laws promulgated before the
date on which the Convention came into force, if, like Article 123 sexies of the
Belgian Penal Code, they remain in force after that date.117

However, although De Becker represents a relatively clear-cut example

of a continuing situation (at least from the perspective of the ECHR), the
jurisprudence surrounding the ECHR reflects a marked inconsistency. In
the similar case of X v. Belgium,118 the Commission reached the opposite

114
Generally: van Pachtenbeke and Haeck (2010).
115
(1958) 25 ILR 172. For the case as it progressed before the European Court of Human
Rights, see De Becker v. Belgium, (1962) 33 ILR 205.
116
Including, inter alia, surrendering the right to hold a proprietary interest in, or take part
in the participation of, the administration, editing or distribution of a newspaper or
other publication: (1958) 25 ILR 172, 173.
117
Ibid., 180. Also Dudgeon v. UK, [1981] ECtHR 7525/76, §41: ‘the maintenance in force of
the impugned legislation constitutes a continuing interference with the applicant’s
right to respect of his private life’. Pauwelyn (1995), 422.
118
[1968] ECommHR 2568/65.
262 breach

conclusion as to the continuing nature of the act – and hence the

admissibility of the claim – on the basis that the act of state at which
the application was directed was a judicial decision.119 But legislative
decisions may create illegal situations which resolve instantaneously
(e.g. outright expropriation).120 The source of the act in terms of the
separation of powers within the state is irrelevant – what matters is the
character of the act itself.
Subsequent decisions of the European Court of Human Rights have
been less than helpful in clarifying the Court’s methodology. In Xheraj v.
Albania, the Court considered whether the quashing by the Albanian
Supreme Court of a previous acquittal could be considered a continuing
situation, and concluded that ‘the applicant continues to be subject to
the consequences of the quashing of the decision’,121 rendering the case
admissible. But the Court reversed itself again in Kravchenko v. Russia,
noting that ‘the quashing of a final judgment is an instantaneous act,
which does not create a continuing situation’.122 The Court’s confusion
continued into decisions relating to expropriation,123 with the jurispru-
dence indicating that cases of de facto expropriation – as in Loizidou –
may be considered continuing situations,124 while clear cases of de iure
expropriation are classified as instantaneous.125 The differentiating
factor would appear to be the retention of legal title over the property
by the claimant (present in the de facto case, but not in the de iure),126
though this might be criticized as an excessively technical way of dealing
with the issue. At the end of the day, the individual does not have
enjoyment of the property.

8.3.2.2 The distinction between instantaneous and

continuing breach
Thus it is necessary to reconsider the ways in which an instantaneous and
a continuing breach might be distinguished. As stated in the commentary,

119 120
Van Pachtenbeke and Haeck (2010), 50. Ibid. Also Pauwelyn (1995), 423.
121
[2008] ECtHR 37959/02, §82. The decision was described by some commentators as ‘an
unfortunate lapse on the part of the Court’: van Pachtenbeke and Haeck (2010), 51.
122
[2009] ECtHR 34615/02, §34.
123
Van Pachtenbeke and Haeck (2010), 51. Also ARSIWA Commentary, Art. 14, §§9, 10.
124
See e.g. Papamichalopoulos v. Greece, [1993] ECtHR 14556/89, §40; Vasilescu v. Romania,
[1998] ECtHR 27053/95, §49; Malama v. Greece, [2001] ECtHR 43622/98, §35.
125
See e.g. Malhous v. Czech Republic, [2000] ECtHR 33071/96; Kopecky v. Slovakia, [2004]
ECtHR 44912/98, §35; Von Maltzan v. Germany,[2005] ECtHR 71916/01 et al., §74; Blečic´ v.
Croatia, [2006] ECtHR 59532/00, §86; Beshiri v. Albania, [2006] ECtHR 7352/03, §76.
126
Altiparmak, (1999) 21 Turkish YHR 3, 14; van Pachtenbeke and Haeck (2010), 51.
 the temporal element 263

An act does not have a continuing character merely because its effects or conse-
quences extend in time. It must be the wrongful act as such which continues. In
many cases of internationally wrongful acts, their consequences may be pro-
longed. The pain and suffering caused by earlier acts of torture or the economic
effects of the expropriation of property continue even though the torture has
ceased or title to the property has passed. Such consequences are the subject of
secondary obligations of reparation, including restitution, as required by Part
Two of the articles. The prolongation of such effects will be relevant, for example,
in determining the amount of compensation payable. They do not, however,
entail that the breach is a continuing one.127

Pauwelyn128 has developed three criteria of identification as between

instantaneous and continuing acts. In the first place, ‘the focus should be
on the definition of the international obligation, rather than the act
breaching it and its effects’.129 Put another way, the inquiry should
examine the broad arc of the situation in question, rather than the
existence or non-existence of a particular fact. To a certain extent, this
inquiry will be directed by the norm in question, and its susceptibility to
instantaneous resolution (e.g. a discrete use of unlawful force) or con-
tinuation (e.g. a forced or involuntary disappearance, defined as a con-
tinuing wrongful act which continues for as long as the person in
question is unaccounted for130).
Pauwelyn notes that an inquiry as to whether the state in question
intended that the act continue, whilst relevant in a domestic context
concerning a private individual, is irrelevant when considering state
responsibility, as an assessment of the internal decision-making process
of the state and associated corporate zeitgeist is an inappropriate task for
an international tribunal.131
Pauwelyn’s first factor is useful but is open to the criticism that it adds
little to the analysis.132 His second factor is a useful supplement, address-
ing the question of cessation under ARSIWA Article 30(a) and using that
as a device to determine whether a breach is to be classed as continu-
ing.133 Put simply, if cessation remains a useful remedy, then the breach
is clearly still en train.134 This was highlighted obliquely by the Inter-
national Court in the Tehran Hostages case:

127 128
ARSIWA Commentary, Art. 14, §6. Pauwelyn (1995), 420–1.
129
Ibid., 420. Further: Buyse (2006), 76–8.
130 131
Blake v. Guatemala, [1998] IACtHR Ser. C No. 36, §67. Pauwelyn (1995), 420.
132
Buyse (2006), 76.
133
Also Salmon (2010), 388; ARSIWA Commentary, Art. 14, §12.
134
Conversely, if the only appropriate remedy is restitution in kind or compensation, then
the breach has concluded: Pauwelyn (1995), 420–1.
264 breach

[VCDR Articles 22(1) and (3)] have also been infringed, and continue to be
infringed, since they forbid agents of a receiving State to enter the premises of
the mission without consent . . . [T]hey constitute continuing breaches of [VCDR]
Article 29 . . . which forbids any arrest or detention of a diplomatic agent . . . [T]he
Iranian authorities are without doubt in continuing breach of the provisions of
[VCDR] Articles 25, 26 and 27 . . .135

To this end, the Court ordered cessation on the part of Iran.136

Thus, in the case of a continuing breach perpetrated by legislation,
cessation entails the repeal of the law in question, thereby ending the
breach.137 Similarly, in the case of an involuntary disappearance, the
return of the individual will end the breach. In the case of a discrimin-
atory trade regime, the lifting of illegal tariffs or the ending of unfair
trade practices is considered dispositive. As Buyse notes, however, this
second tool does not always stand on its own, and in difficult cases –
particularly when considering a continuing omission under an obliga-
tion of prevention – it may need to be supplemented by the overall
analysis of the first tool.138
Third, Pauwelyn requires that one assess whether the act complained
of can be plausibly thought of as continually renewed or repeated for
each day the breach ‘continues’, or whether only its effects can be
detected.139 As with his first factor, this effectively restates the prob-
lem,140 although Pauwelyn does usefully reframe the question as it
concerns the legal status of a person – if it is affected more or less
consistently for a given period of time, the act is a continuing one.141

8.3.2.3 Completion of the act

Whatever its status while on foot, a continuing act once completed – by
way of cessation or otherwise – is no longer considered a breach of
international law and falls, to all intents and purposes, within the mean-
ing of ARSIWA Article 14(1). The commentary notes that
the distinction between completed and continuing acts is a relative one.
A continuing wrongful act itself can cease: thus a hostage can be released, or
the body of a disappeared person returned to the next of kin. In essence a

135 136
ICJ Rep. 1980 p. 3, 37. Ibid., 44–5.
137
Pauwelyn points out that this may end only one element of the breach. If expropriation
is to be considered a continuing breach, the repeal of an expropriation law will not cure
it – only the return of the property will suffice: Pauwelyn (1995), 421. Further: Buyse
(2006), 76.
138 139 140
Buyse (2006), 77. Pauwelyn (1995), 421. Buyse (2006), 77.
141
Pauwelyn (1995), 421.
 the temporal element 265

continuing wrongful act is one which has been commenced but has not been
completed at the relevant time. Where a continuing wrongful act has ceased, for
example by release of hostages or the withdrawal of forces from territory unlaw-
fully occupied, the act is considered for the future as no longer having a continu-
ing character, even though certain effects of the act may continue. In this respect
it is covered by paragraph 1 of article 14.142

The conclusion that completion results in the equation of a continuing

act with an instantaneous act within the meaning of ARSIWA 14(1) has
led some commentators to call for the abandonment of the instantan-
eous/continuing distinction and a focus simply on incomplete/complete
acts, with instantaneous acts being there described as acts which are
‘complete’ from their inception.143 But as a method of characterization
the former distinction remains useful, and in any event it is entrenched
in the literature.
Alternatively, the wrongful act may ‘cease’ in the sense that it is no
longer to be considered as such, that is, because of the termination of the
obligation or a change in the law (although this is subject to the inter-
temporal law insofar as the bringing of the claim is concerned). In
Rainbow Warrior the tribunal held (somewhat controversially) that
France’s obligation to maintain its two agents on Hao ended after three
years had passed, including times when they had not been on the island
in breach of the treaty. It followed from this (less controversially) that
the breach complained of was no longer continuing. The tribunal said:
Obviously a breach ceases to have 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 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 cessation or discontinuance of the wrongful conduct would serve no
useful purpose and cannot be issued.144

8.3.3 Composite breaches

8.3.3.1 The character of the composite breach
The third class of breach covered by the ARSIWA is that of the composite
breach, expressed in ARSIWA Article 15 as follows:

142 143
ARSIWA Commentary, Art. 14, §5. Salmon (2010), 389.
144
(1990) 82 ILR 499, 573.
266 breach

(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.

As Salmon notes, the composite act of state is 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’.145
The concept of the composite act was introduced by Ago and passed
through the first reading as Draft Article 25(2).146 During the second
reading, efforts were made to particularize the provision so as to apply
only to ‘systematic’147 obligations – that is, primary norms which define
acts as wrongful in terms of their inherently wrongful or systematic
character.148 The European Court has defined the concept in terms of a
practice contrary to the ECHR, being ‘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’.149 Thus a composite act is more than a simple
series of repeated actions, but, rather, a legal entity the whole of which
represents more than the sum of its parts. The composite act may itself
be made up of a series of individually unlawful acts.150
It is useful to take examples of both the systematic and non-systematic
primary rules in order to test the idea of the composite wrongful act. The
145
Salmon (2010), 391.
146
See also Draft Art. 18(4), providing that ‘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’.
147
Referred to by some commentators as the requirement of ‘globality’: Salmon (2010),
391–3.
148
Crawford, Second Report, 35–7. Also Salmon (2010), 391.
149
Ireland v. UK, (1978) 58 ILR 188, 197.
150
ARSIWA Commentary, Art. 15, §9:
While composite acts are made up of a series of actions or omissions defined in
aggregate as wrongful, this does not exclude the possibility that every single act
in the series could be wrongful in accordance with another obligation. For
example, the wrongful act of genocide is generally made up of a series of acts
which are themselves internationally wrongful. Nor does it affect the temporal
element in the commission of the acts: a series of acts or omissions may occur at
the same time or sequentially, at different times.
 the temporal element 267

prohibition against genocide,151 formulated in identical terms in the

Convention on the Prevention and Punishment of the Crime of Geno-
cide152 and later instruments153 is a good example of a ‘systematic’
primary rule, in the sense that it implies, if it does not actually
require,154 that the responsible entity (including a government) will have
adopted a systematic policy or practice, and that the individual acts in
question which together constitute genocide would not or might not do
so taken individually. According to Article II(a) of the Genocide Conven-
tion, the prime case of ‘genocide’ is ‘[k]illing members of [a national,
ethnic, racial or religious] group’ with the intent to destroy that group,
in whole or in part. Killing one person within the meaning of Article II(a),
whatever the motive, is not genocide: the killing has to be multiple,155
and carried out with the relevant intention, that is, the elimination of
the relevant group as such.
In this context, the idea of a composite wrongful act elaborated in
ARSIWA Article 15 is entirely appropriate. Genocide is not committed
until there has been an accumulation of acts of killing, causing harm and
so forth, committed with the relevant intent, so as to satisfy the definition
contained in Article II of the Genocide Convention. But once the threshold
is crossed, it is reasonable to say that the time of commission extends over
the whole period during which any of the acts was committed. Assuming
that the intertemporal law applies to genocide, it is also reasonable to say
that genocide is committed if the acts committed during the period when
the Convention was in force (and latterly, as reflecting certain peremptory
norms of international law) were sufficient to constitute genocide.156

151 152
Ibid., §3. 9 December 1948, 78 UNTS 277.
153
See e.g. Statute of the International Criminal Tribunal for the former Yugoslavia,
SC Res. 827, 23 May 1993, Art. 4; Statute of the International Criminal Tribunal for
Rwanda, SC Res. 955, 8 November 1994, Art. 2; Rome Statute of the International
Criminal Court, 17 July 1998, 2187 UNTS 3, Art. 6.
154
Cf. the case of crimes against humanity, which in some formulations will require
‘a widespread or systematic attack directed against any civilian population’: ICC
Statute, Art. 7(1). For further examples see ARSIWA Commentary, Art. 15, §2.
155
As Judge ad hoc Lauterpacht acknowledged in Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Order on Counter-Claims, 17 December 1997, ICJ Rep. 1997 p. 243, 282. This does not
mean that a camp guard who participated in genocidal acts but was personally
responsible for killing only one member of the group would necessarily be innocent:
such conduct committed with the necessary intent would clearly involve complicity
with genocide within the meaning of the Convention on the Prevention and
Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, Art. III(e).
156
It is, however, doubtful that the intertemporal law applies to the Genocide Convention
as such, since according to Article I thereof it is declaratory in character, and it is
268 breach

The ‘systematic’ example of genocide may be contrasted with an

example based on the situation in Gabčı́kovo-Nagymaros. Two parties to a
boundary waters agreement are under a simple obligation to ensure that
each takes no more than a specified volume of water from a boundary
river in a calendar year. If it is assumed that one of the parties authorizes
different users to take each month volumes of water which (while
themselves not unlawful under the agreement) make it likely that over
the year the total taken will exceed the quota, then can the entire series
of takings constitute a composite act within the meaning of ARSIWA
Article 15? The approach of the majority in Gabčı́kovo-Nagymaros suggests
that at least until the act occurs which predetermines the final decision
to exceed the quota, no wrongful act will have been committed157 –
indeed, no wrongful act will be committed until the quota itself is
exceeded. Perhaps if the state set out with the deliberate intention to
violate the treaty and gave monthly permits accordingly, it might be said
that the breach began in January. But it cannot be said that the primary
norm in question exhibits a ‘systematic’ character whereby individual
acts are translated in a legal sense into something else. Rather, the state
in question has simply breached a binary obligation (n mega litres versus
not-n mega litres) not to take more than a certain amount of water from
the river.
Accordingly, just because a simple obligation is breached by a composite
act there is no reason to treat the breach as different in kind. No doubt
composite acts are likely to give rise to continuing breaches, but simple acts
can cause continuing breaches as well (e.g. the detention of a diplomat). The
position is different, however, when the obligation itself (and thus the
primary underlying rule) fixes on the cumulative character of the conduct
as constituting the essence of the wrongful act. Apartheid was qualitatively
different from other acts of racial discrimination, and genocide may be
distinguished from individual acts of ethnically motivated killing.158

8.3.3.2 Determining the scope of the composite breach

As noted in the commentary to ARSIWA Article 15, the character of a
composite act is such that the original act of state which inaugurated the

therefore probable that the obligation of aut dedere aut iudicare in relation to genocide
relates to genocide whenever committed. The International Court clearly acted on this
basis in the Bosnian Genocide case: Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections, ICJ Rep. 1996 p. 595, 616.
157 158
ICJ Rep. 1997 p. 7, 54. ARSIWA Commentary, Art. 15, §4.
 the temporal element 269

series of actions leading to the breach cannot be the same as the time at
which the act is deemed to have matured or been accomplished.159 The
role of the first link in the chain can only be appreciated once the whole
chain – or at least a significant part of it – is visible.
ARSIWA Article 15(1) accordingly defines the time at which the com-
posite act occurs as when ‘the action or omission occurs which, taken
with the other actions or omissions, is sufficient to constitute the wrong-
ful act’. It is not a requirement that the breach also be the last in the
series (i.e. completing the breach), and the composite act in this sense
may be seen as taking on the proportions of a continuing act.
The existence of a composite act is dependent on the primary norm in
question. As the commentary states,
The number of actions or omissions which must occur to constitute a breach of
the obligation, is also determined by the formulation and purpose of the primary
rule. The actions or omissions must be part of a series but [ARSIWA Article 15]
does not require that the whole series of wrongful acts has to be committed in
order to fall into the category of a composite wrongful act, provided a sufficient
number of wrongful acts has occurred to constitute a breach. At the time when
the act occurs which is sufficient to constitute the breach it may not be clear that
further acts are to follow and the series is not complete. Further, the fact that the
series of actions or omissions was interrupted so that it was never completed will
not necessarily prevent those actions or omissions which have occurred as being
classified as a composite wrongful act if, taken together, they are sufficient to
constitute a breach.160

ARSIWA Article 15(2) deals with the extension of time of the composite
act. Once a sufficient number of actions or omissions have occurred to
produce the composite act, the breach is in effect backdated to the first
of the acts in the series.161 In this way, an act of ethnically motivated
murder may in retrospect be considered to be the first act of a genocidal
campaign, or a single instance of racial discrimination the beginning of a
regime of apartheid.

8.3.4 Complex breaches

Mention may be made in passing of a category of breach reflected in the
first reading of the ARSIWA but which was eliminated in the course of
the second.162 The concept of the ‘complex’ breach was introduced by
Ago as counsel for Italy in Phosphates in Morocco. As an alternative

159 160 161

Ibid., §7. Ibid., §8. Ibid., §9.
162
Generally: Pauwelyn (1995), 428–9; Salmon (2010), 393–5.
270 breach

argument before the Permanent Court, Italy contended that all acts
occurring prior to the critical date of the Court’s jurisdiction ratione
temporis should be deemed a single entity by virtue of a connection with
facts arising subsequent to the critical date:
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 its constituent
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.163

Ago’s views were straightforwardly rejected by the Permanent

Court,164 but in his capacity as ILC Special Rapporteur he prevailed on
the ILC to endorse them, thus gaining a retrospective ‘win’ in the first
case of his career. Draft Article 25(2) provided:
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 commis-
sion of the breach extends over the entire period between the action or omission
which initiated the breach and that which completed it.

Thus a complex breach was considered by Ago to be constituted by a

succession of acts emanating from state organs which related to some
common situation (i.e. the monopolization of phosphate production in
Morocco). Taken as a whole, it was said, these could be considered a
single act.165 Examples included in the Draft Articles Commentary
included acquittal at all the successive jurisdictional levels of the perpet-
rators of a crime against a representative of a foreign government and
denial of justice in the case of a foreign investor.166 The complex act may

163
Phosphates in Morocco, (1938) PCIJ Ser. C No. 85, 1234.
164
Phosphates in Morocco, (1938) PCIJ Ser. A/B No. 74, 26, 28–9:
In these circumstances the alleged denial of justice, resulting either from a
lacuna in the judicial organization or from the refusal of administrative or
extraordinary methods of redress designed to supplement its deficiencies, merely
results in allowing the unlawful act to subsist. It exercises no influence either on
the accomplishment of the act or on the responsibility ensuing from it.
165
Salmon (2010), 393.
166
Draft Articles Commentary, Art. 25, §15. Also Salmon (2010), 394.
 the temporal element 271

be distinguished from the composite act by reference to the primary

norm under consideration. In the case of a composite act such as apart-
heid, there is a systematic policy which elevates the situation as a whole
above that of a series of individual acts of discrimination. Such individ-
ual acts, however, may on their own constitute complex acts because of
the collusion between different organs or conduct against the individual
concerned over a period of time but in any event involving the same case
throughout.167
The notion of a ‘complex act’ was the subject of considerable contro-
versy following the first reading.168 If Ago’s position was correct, as
Pauwelyn notes, a continuing violation could be established which
existed during the entire period required by a state to take a final
decision on a specific case, even where the obligation in question was
breached only at the end of that period.169 This is markedly inconsistent
with later cases such as Gabčı́kovo-Nagymaros. There, the Court held that
Czechoslovakia was entitled to build the necessary components of the so-
called ‘Variant C’ on its territory so long as the project was not put into
effect. When Variant C was activated so as to divert the waters of the
Danube, the Court held that the breach by Czechoslovakia (and later,
Slovakia) began and continued from the time of diversion in October
1992, rather than the point at which preparations for the alternative
commenced in November 1991.170 This was despite the fact that, by
Ago’s reckoning, the entire process of planning would have represented
a complex act within the meaning of Draft Article 25(3), and thus
susceptible to consideration as a whole.171
The ILC did not treat the category of complex acts kindly on second
reading, with the Special Rapporteur noting its inconsistency with the
approach of the Court in Gabčı́kovo-Nagymaros.172 Further problems with

167
Crawford, Second Report, 35.
168
See e.g. Perrin, in Diez et al. (1980) 271; Salmon, (1982) 28 AFDI 709; Pauwelyn (1995),
427–8; Salmon (2010), 393–5. See also Crawford, Second Report, 30–1.
169 170
Pauwelyn (1995), 428 ICJ Rep. 1997 p. 7, 54.
171
Counsel for Hungary argued the contrary but not on grounds of the ‘complex act’:
instead, the decision to proceed with Variant C was to be seen as a repudiation of the
1977 treaty or alternatively an ‘anticipatory breach’ of the treaty: ICJ Doc. CR 1997/6,
25–35 (Crawford). The Court held that as Variant C was in significant part a response to
Hungary’s prior breach, Hungary was precluded from relying on it as a ground for
termination under VCLT, Art. 60: ICJ Rep. 1997 p. 7, 55–6, 60–2, 66–7. Thus a treaty
‘more honour’d in the breach than in the observance’ became in effect interminable (cf.
Hamlet, I.iv.16).
172
Crawford, Second Report, 37.
272 breach

the position were also identified. Ago’s formulation drew a sharp distinc-
tion between composite and complex acts. In the case of composite acts,
the observer was required to address the first act in the series which,
taken alongside the earlier events in the chain, was sufficient to consti-
tute the breach (i.e. the culminating act). In contrast, the observer in the
case of a complex act was required to look at the last act. Why such a
difference should exist was not explained. At the time the culminating
act is performed, it may not be clear that further acts are to follow and
that the series is not yet complete. Yet if up to that point the injured state
is justified in holding that a wrong has been committed, why should it
not be able to act on that basis at that time?
A similar complaint was identified by the ILC with respect to the
interaction between a complex act and the intertemporal law. Until the
series of acts is complete, one may not know precisely how to character-
ize the wrongful act, for example, in Foremost Tehran Inc. v. Islamic Republic
of Iran whether the appropriate action is for discrimination against
foreign shareholders or de facto expropriation.173 Yet if analysed
through the lens of the complex act, the application of the law in force
at the time the first act in the series occurs may depend on how the
whole series is to be characterized. The issue of the intertemporal law is
thus made uncertain and to some extent subjective. This is exacerbated
in that the distinction between complex and composite acts depends on
what is identified as the relevant ‘case’, yet this can be done in different
ways. As seen in Ireland v. United Kingdom,174 for example, the applicant
may focus on the ‘practice’ of which individual incidents are merely
examples. Is the practice the ‘case’ or is it the individual incidents which
are induced, non-exhaustively, to prove the practice?
The distinction between the composite and complex act is thus
dependent on the unspecified notion of a ‘case’, yet important questions
of the intertemporal law may be seen to turn on the difference between
the two. Issues of such importance ought not to be dependent on the
manner in which the applicant formulates the claim. In any event, it is
far from clear why, in principle, the law in force at the time of the first
act in the series should apply throughout the chain. Either the individual

173
The Iran–US Claims Tribunal held that the acts in question did not constitute
expropriation by the terminal date of the Tribunal’s jurisdiction: (1986) 10 Iran–US CTR
228.
174
(1978) 58 ILR 188, 197. See also the US counterclaim in Oil Platforms (Iran v. US), Order on
Counter-Claim, 10 March 1998, ICJ Rep. 1998 p. 190, which likewise focused on a
general situation rather than specific instances.
 the temporal element 273

acts are to be assessed individually, in which case the law in force at the
time that each act was committed should be applied, or they should be
assessed as a series, in which case the rule as applied to the composite act
appears to be equally appropriate. On neither formulation is there any
reason to freeze the applicable law as it was on the date when the
complex act began. For these reasons, the notion of ‘complex act’ was
abandoned by the ILC on second reading,175 to the general endorsement
of the Sixth Committee.176

175
Crawford, Second Report, 38; ILC Ybk 1999/I, 49–54.
176
13 January 2000, UN Doc. A/C.6/54/SR.21, §3.
9 Circumstances precluding
wrongfulness1

9.1 Justifications and excuses in international law

The philosopher J. L. Austin, who considered excuses to form ‘a whole
branch, even a ramiculated branch, of philosophy’, warned that ‘we do
not use the terms justification and excuse as carefully as we might’ and
‘a miscellany of even less clear terms . . . hovers uneasily between partial
justification and partial excuse’.2 This is certainly true of justifications
and excuses in international law. ARSIWA Part One, Chapter V attempts
to clarify the variegated customary rules on that ‘miscellany of even less
clear terms’.3 This chapter first discusses the category of ‘circumstances
precluding wrongfulness’ and how it differs from the termination or
suspension of an obligation. It then considers each such circumstance in
turn: consent (Article 20), self-defence (Article 21), countermeasures in
respect of an internationally wrongful act (Article 22), force majeure
(Article 23), distress (Article 24) and – the most controversial – necessity
(Article 25). Lastly it considers three further matters: acts that do not
conform to obligations under peremptory norms (Article 26); compen-
sation for material loss caused by an act whose wrongfulness is pre-
cluded (Article 27); and the burden of proof.

9.1.1 The category of ‘circumstances precluding wrongfulness’

The six circumstances in Part One, Chapter V do not self-evidently fall
into a single category. It is true that each ‘provides a shield against
1
Generally: Brownlie’s Principles, 563–5; Christakis, in Angelet et al. (eds.), Droit du pouvoir,
Pouvoir du droit – Mélanges offerts à Jean Salmon (2007) 223; Crawford, Pellet and Olleson
(2010), 427–501; Jagota, (1985) 16 NYIL 249; Lowe, (1999) 10 EJIL 405; Spinedi and Simma
(eds.), United Nations Codification of State Responsibility (1987), 143–285; Thirlway, (1995) 66
BYIL 1, 70–80.
2 3
Austin, (1956–7) 57 PAriS 1, 1–3. ILC Ybk 1999/I, 137.

274
 circumstances precluding wrongfulness 275

an otherwise well-founded claim for the breach of an international

obligation’.4 But that could be true of an armoury of other defensive
arguments. The category might be defined negatively; it does not extend
to requirements necessary for a primary obligation to arise in the first
place and it excludes principles of admissibility and jurisdiction.5 There
is, however, something the six arguments share (with the arguable
exception of consent) that those others lack. Like analogous defences in
domestic law, they preclude the wrongfulness of an act.6 They accord with
the premise, underlying the ARSIWA, that fault is objective rather than
subjective.7 Any act or omission attributable to a state under inter-
national law that breaches an international obligation of that state is
internationally wrongful (Article 2) and entails its international responsi-
bility (Article 1). Nothing – neither a lack of subjective fault nor anything
else – can absolve a state of that responsibility.8 So circumstances can
have the effect of precluding wrongfulness and therefore responsibility
only if they mean that there is no breach.
Most of the omissions from the category that have aroused discussion
can be explained as primary rules or as concerned with admissibility or
jurisdiction. Although an analysis of those omissions illustrates the
essential coherence of the category, it also reveals the fuzziness of its
boundaries. Some of them can be understood historically.9 The Prepara-
tory Committee of the Hague Conference 1930 identified the ‘immediate
necessity of self-defence against the danger with which the foreigner
threatened the State or other persons’ and ‘circumstances justifying
the exercise of reprisals’ (countermeasures).10 Two ILC projects later

4 5
ARSIWA Commentary, Pt I, Ch. V, §1. Ibid., §7.
6
Crawford, Second Report, 58–9; Draft Articles Commentary, Ch. V, §2.
7
On subjective and objective fault in this context see Szurek, in Crawford, Pellet and
Olleson (2010) 427, 433–5. On the position taken by the ARSIWA generally see Chapter 2.
8
The Draft Articles Commentary, Ch. V, §4 postulates that although any circumstance
precluding wrongfulness ‘necessarily’ also precludes responsibility,
[t]here is no reason why, from a purely theoretical standpoint, there should not
be some circumstances that, while precluding responsibility, would not at the
same time preclude the wrongfulness of an act which, by way of exception, would
not give rise to responsibility.
But characterizing an act as wrongful without attaching any adverse legal
consequences to it would have no obvious point and would ‘be in flagrant
contradiction with one of the dominant characteristics of a system of law so
imbued with effectiveness as the international legal order’: §5.
9
On this history see further Jagota (1985).
10
The Committee listed them in its Bases of Discussion along with two other
circumstances – concerning the invocation of domestic law and the Calvo clause – that
are not relevant for present purposes. It also considered, though the points were not
276 breach

expanded the category. In his work on international responsibility for

injuries to aliens, García Amador listed force majeure, necessity and fault
on the part of the alien, but not self-defence or three circumstances that
he considered ‘inadmissible’: reprisals, non-recognition of a state or
government and severance or suspension of diplomatic relations.11 In
his work on the law of treaties (which ultimately left aside excuses
for the non-performance of treaties as it did state responsibility in
general12), Fitzmaurice listed some of the circumstances now included
in the ARSIWA (Articles 21–23) plus three others: incompatibility with a
new rule in the nature of ius cogens; acceptance of non-performance by
the other party, now perhaps subsumed by consent (Article 20); and
previous non-performance by another party (exceptio inadimplenti non est
adimplendum).13
The ARSIWA’s list of six survived, slightly modified but essentially
intact, from Ago’s initial work.14 The list was inspired by Fitzmaurice15
but dropped his provision on peremptory norms and the two proposals
on non-performance. The ILC subsequently considered the restoration
of the former16 and the addition of a narrow exceptio ‘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 inter-
national obligation by another State’.17 Reference to peremptory
norms did find its way in, albeit in a negative form (Article 26). But,
following a mixed reception,18 the exceptio did not, for two reasons. The

carried to any conclusion, that in diplomatic protection the ‘provocative attitude’ of an

injured person could affect state responsibility and that a state could decline
responsibility for damage by its armed forces in quelling ‘an insurrection, riot or other
disturbance’: ILC Ybk 1956/II, 224–5. Also ARSIWA Commentary, Pt I, Ch. V, §5;
Crawford, Second Report, 57.
11
García Amador, Third Report, ILC Ybk 1958/II, 50–5, 72.
12
22 May 1969, 1155 UNTS 331, Art. 73.
13
Fitzmaurice, Fourth Report on the Law of Treaties, ILC Ybk 1959/II, 43–7, 63–74;
Crawford, Second Report, 58.
14
Except perhaps the removal of ‘fortuitous event’ from the force majeure provision. But
that was because in international law those two terms denote the same thing and
because not all cases of fortuitous event in French law (‘cas fortuit’, whence the term
comes) amount to force majeure under Art. 23: Crawford, Second Report, 67. See further
Szurek, in Crawford, Pellet and Olleson (2010) 475, 476–7.
15 16
ILC Ybk 1999/I, 137. Crawford, Second Report, 78, 87.
17
Crawford, Second Report, 82, 87–8. This narrow formulation was recognized in Factory at
Chorzów, Jurisdiction, (1927) PCIJ Ser. A No. 9, 21.
18
Crawford, Third Report, 95–6. For a summary of the debate on the proposal see ILC Ybk
1999/II(2), 78–80. For a summary of states’ responses see UN Doc. A/CN.4/504, 15–17.
 circumstances precluding wrongfulness 277

first was that in its broad form the exceptio is based on interpretation: the
treaty or contract treats performance of the same or related obligations
(synallagmatic obligations19) as conditional. So it can properly be classified
as a primary rule and not a circumstance precluding wrongfulness.20 By
contrast the six circumstances that were retained are all of general applica-
tion – meaning that they apply to breaches of obligations arising from
general international law, treaties, unilateral acts, membership of inter-
national organizations or anything else – unless a treaty or other lex specialis
(Article 55) otherwise provides.21 A practical reason for omitting a broad
formulation of the exceptio is that it might produce escalating
non-compliance by the two states involved, which would in effect negate
the underlying obligation. The justification of the non-performance of
synallagmatic obligations is better left to countermeasures or to the applic-
able law dealing with the termination or suspension of those obligations.22
But this explanation does not dispose of the proposed narrow exceptio.
It is an application of the general principle that a party cannot rely on the
consequences of its own unlawful conduct. Whether to include an aspect
of that general principle in Part One, Chapter V was a matter of judge-
ment in that it would be preserved by what is now Article 56 anyway.23
The fact that the ILC declined to include it, even though it was capable of
generating new consequences in the field of state responsibility, raises
the prospect that the six circumstances that are included form a non-
exhaustive list. Certainly on first reading the ILC did not want ‘to be
construed as closing the door’ on the possibility that a circumstance that
was not at that time held to preclude wrongfulness might have that
effect in future.24 But, as Szurek notes, ‘one cannot envisage that such

19
Including in the ARSIWA Commentary, Pt I, Ch. V, §9: ‘[the exceptio] is best seen as a
specific feature of certain mutual or synallagmatic obligations and not a circumstance
precluding wrongfulness’.
20
Crawford, Third Report, 95.
21
ARSIWA Commentary, Pt I, Ch. V, §2; Crawford, Second Report, 57.
22
Crawford, Second Report, 82. On the exceptio generally see Chapter 21. On the
relationship of the broad form with countermeasures, which are juridically distinct, see
Crawford, Third Report, 95.
23
Crawford, Third Report, 95. There were also difficulties in formulating it (95–6 n. 734):
If . . . it is still technically possible for State B to perform (e.g. by using its own
resources rather than those which State A should have provided), it cannot
be said that State A has actually prevented performance: State B’s excuse rests
on equity, not impossibility.
This suggested a need for flexibility and reinforced the case for leaving it to what is now
Art. 56.
24
Draft Articles Commentary, Art. 34, §29.
278 breach

a situation would occur easily’. Two further unresolved matters she

identifies are ‘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’.25 Despite such possibilities, the six
circumstances included can be considered the main ones applicable in
general international law.26
A candidate more readily dismissed was the putative ‘clean hands’
doctrine.27 This was for two reasons. First, whether it exists at all is
debated: according to Jean Salmon, ‘La jurisprudence citée par les
auteurs . . . est assez ancienne et partagée.’28 Second, where it has been
relied on, such as by Judge Schwebel in his dissent in Nicaragua,29 it
appears to operate not as a circumstance precluding wrongfulness but
as a ground for the inadmissibility of a claim.30
The intentional omission of circumstances on the basis that they
concern the requirements for primary obligations or admissibility does
not entirely answer Austin’s warning that the language of excuses and
justifications is ‘a miscellany’. The monolith31 that is Part One, Chapter
V welds together components of diverse origins and morphology. It is
not obvious that they apply in the same way or to the same extent.
Instead, at least two subcategories might be distinguished: circum-
stances that seemingly render an act lawful (including at least consent
and self-defence, which is an ‘inherent right’32) and a residual one with
less easily discernible consequences, in which the other state’s interests
must still be taken into account to determine whether the circumstances

25
Szurek (2010) 427, 431–2.
26
Crawford, Second Report, 76. As Szurek (2010) 427, 430–1 notes, Ago’s initial list can be
found, albeit in different terms, in Sereni, 3 Diritto internazionale (1962), 1523ff.
27
The ‘clean hands’ doctrine (if it exists) overlaps with García Amador’s concept of fault on
the part of the alien in diplomatic protection, which is now subsumed by ARSIWA, Art.
39 insofar as it affects reparation, discussed in Chapter 15. Other candidates considered
for inclusion in Pt I, Ch. V but quickly dismissed were due diligence, which ‘was
considered logically connected to the distinction between breaches of the obligation of
result, conduct and prevention’ rather than a circumstance precluding wrongfulness,
and duress, which was considered to be covered by force majeure: UN Doc. A/CN.4/504, 17.
28
Salmon, (1964) 10 AFDI 225, 249 and see also 259. Translation: ‘The jurisprudence cited
by the authors . . . is somewhat old and divided.’ Further: Crawford, Second Report, 83.
29
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Rep. 1986
p. 14, 392–4. Cases on diplomatic protection are discussed in Salmon (1964).
30
Crawford, Second Report, 83.
31
‘Le bloc monolithique proposé par la CDI dans le chapitre V peut-il être affiné?’:
Christakis (2007), 225.
32
UN Charter, Art. 51.
 circumstances precluding wrongfulness 279

justify the act (including distress and necessity).33 Several states agreed
that consent, self-defence and countermeasures differ from distress, neces-
sity and perhaps force majeure in that the state is, ‘because its action is not
unlawful, under no duty to pay compensation’.34 The two groups might be
called, respectively, ‘justifications’ and ‘excuses’. This is analogous to the
distinction – a lexical rather than a legal one – drawn by Austin:
In the one defence, briefly, we accept responsibility but deny that it was bad
[justification]: in the other, we admit that it was bad but don’t accept full, or even
any, responsibility [excuse] . . . You dropped the tea-tray: Certainly, but an emo-
tional storm was about to break out: or, Yes, but there was a wasp. In each case
the defence, very soundly, insists on a fuller description of the event in its
context; but the first is a justification, the second an excuse.35

Legal scholars have proposed comparable distinctions.36 Christakis

wonders: ‘si, en fin de compte, le comportement de l’État a été licite,
pourquoi parle-t-on d’“illicéité”?’.37 In proposing not two but three ca-
tegories to dispel this ‘sophisme’, he concurs with the view (expressed
below) that consent does not belong in Part One, Chapter V at all:
[1] Il nous semble, tout d’abord, que certaines ‘circonstances’ – et surtout le
consentement – doivent être extraites de ce Chapitre, comme d’ailleurs du
projet dans son ensemble, car elles n’ont rien à voir avec les règles ‘secon-
daires’ de la responsabilité et ne concernent, en réalité, que les règles
primaires . . .
[2] Pour d’autres circonstances, on pourrait peut-être accepter leur maintien
dans la catégorie existante d’‘exclusion d’illicéité’, soit parce que l’État qui les
invoque a agi de manière complètement involontaire (force majeure), soit parce
que la pratique semble les avoir profondément enracinées dans cette catégorie
(cas éventuel des représailles) . . .
[3] Mais pour une dernière série de circonstances, incluant surtout
l’état de nécessité (mais aussi la détresse), il est sans doute préférable de parler

33
Crawford, Second Report, 60.
34
This quotation is from the United Kingdom, which commented that in cases of necessity
and distress the state has a choice whether to comply: ILC Ybk 1998/II(1), 130. France
suggested the same division: ibid. Japan added force majeure to necessity and distress and
queried whether any of those three circumstances ‘would not preclude wrongfulness but
render it non-existent’: ILC Ybk 1999/II(1), 107. See further below on compensation for
material loss caused by acts whose wrongfulness is precluded.
35
Austin (1956–7), 2. Naturally the meaning of the word ‘responsibility’ is looser here than
when used as a legal term in the ARSIWA.
36
E.g. Dupuy (1984), 41.
37
Christakis (2007), 223. Translation: ‘if, in the final analysis, the state’s conduct was
lawful, why does one speak of “wrongfulness”?’
280 breach

de circonstances ‘excluant ou atténuant la responsabilité’ et la pratique semble,

derrière le paravent des mots, confirmer cette analyse . . .38

A more dramatic critique is Lowe’s. He argues that the ARSIWA should

have left out Part I, Chapter V entirely and instead provided that they
were without prejudice to the rules on the six circumstances, without
detailing what those rules were:
I am not suggesting that the ‘exculpation’ approach proposed by the ILC [justifi-
cation: in which the act is not wrongful] is wrong in law. It is defensible and
coherent. It does, however, have its drawbacks . . . My plea is to restore the
flexibility of response to states, allowing them to decide on a case-by-case basis
whether to follow the exculpation or the excuse approach [in which the act is
wrongful but excused], rather than imposing one blanket solution.39

Lowe’s concern that the ILC’s justification approach neglects the effect
of an act on third states is pursued further below in discussing compen-
sation under Article 27(b), as is the distinction between excuses and
justifications generally. Lowe otherwise frames his argument as one of
policy rather than as a deduction from the jurisprudence. It can partly be
answered by observing that to have left this topic out of the ARSIWA
would have left states without the clear guidance they were intended to
provide. Indeed, states did not question the need for it on second read-
ing.40 The result is that no categorical distinction between justifications
and excuses appears in the ARSIWA. But in the sense that the six
circumstances are recognized as having a single consequence – namely,
precluding wrongfulness – they do cohere.

38
Christakis (2007), 244. Translation:
[1] It seems to us, first of all, that certain ‘circumstances’ – and above all consent –
should be removed from the Chapter, and indeed from the project altogether, for
they have nothing to do with ‘secondary’ rules and concern, in reality, only primary
rules . . .
[2] As for some other circumstances, one might accept their retention in the
existing category of ‘precluding wrongfulness’, either because the State that
invokes them has acted in a completely involuntary manner (force majeure) or
because practice seems to have deeply entrenched them in that category
(potentially reprisals) . . .
[3] But as for a final set of circumstances, including above all necessity (but also
distress), it is surely preferable to speak of circumstances ‘precluding or mitigating
responsibility’, and practice seems, behind the veneer of the terms used, to confirm
this analysis.
Further: ibid., 244–5, 251ff.
39 40
Lowe (1999), 411. Further: Christakis (2007), 225ff. ILC Ybk 1998/II(1) 81.
 circumstances precluding wrongfulness 281

9.1.2 Termination and suspension of obligations

Precluding the wrongfulness of a particular act does not necessarily
mean terminating or suspending the obligation. It is in this sense that
the six circumstances act less as a sword than as a shield: they cut down
neither the obligation nor the primary rule underlying it; they merely
defend against them.41 Each of the circumstances justifies a state’s non-
performance only so long as it subsists. As Fitzmaurice put it: the non-
performance ‘is not only justified, but “looks towards” a resumption
of performance so soon as the factors causing and justifying the non-
performance are no longer present’.42 The consequences of this are
illustrated by two cases. In Gabčı́kovo-Nagymaros, Hungary pleaded neces-
sity to terminate a treaty with Czechoslovakia (succeeded to by Slovakia)
requiring it to complete a dam project. It had already invoked the same
circumstance – a threat to the environment – to preclude the wrongful-
ness of its discontinuance of work on the project some years earlier. The
International Court rebuffed it:
[E]ven if a state of necessity is found to exist, it is not ground for the termination
of a treaty. It may only be invoked to exonerate from its responsibility a State
which has failed to implement a treaty . . . [T]he Treaty may be ineffective as long
as the condition of necessity continues to exist, but – unless the parties by
mutual agreement terminate the Treaty – it continues to exist. As soon as the
state of necessity ceases to exist, the duty to comply with treaty obligations
revives.43

In Rainbow Warrior, France had failed to detain two agents on a

Polynesian island for the three years required by a treaty with New
Zealand. The tribunal held that ‘both the customary Law of Treaties
and the customary Law of State Responsibility are relevant and applic-
able’. It fell to the law of treaties to determine whether the treaty was
still in force. But so long as it remained in force, such matters as
the determination of the circumstances that may exclude wrongfulness (and
render the breach only apparent) and the appropriate remedies for breach, are
subjects that belong to the customary Law of State Responsibility.44

It is a similar situation with non-treaty obligations; thus a unilateral

obligation can be terminated only under the law on the termination of

41
Crawford, Second Report, 59. See also ARSIWA Commentary, Pt I, Ch. V, §§2–3.
42
Fitzmaurice, Fourth Report on the Law of Treaties, ILC Ybk 1959/II, 41.
43
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7, 63. See also 38–9.
44
Rainbow Warrior (New Zealand/France), (1990) 20 RIAA 217, 251.
282 breach

unilateral obligations, and an obligation under general international law

only in accordance with the applicable rules on customary obligations.
What matters is that in none of these cases is termination within the
remit of state responsibility. Since the obligation may remain in force
even though a circumstance precludes wrongfulness, it is misleading
to say that the circumstance renders the obligation ‘definitively or
temporarily inoperative’ (a phrase that appears in the Draft Articles
Commentary45). That might imply – incorrectly – that the act is ‘in
conformity’ with the obligation. It is not in conformity.46 It is merely
that insofar as the circumstance precludes the wrongfulness of the act, it
is also not in breach.47 It was on this ground that in Gabčı́kovo-Nagymaros
the Court observed that ‘necessity . . . could not permit the conclusion
that [Hungary] had acted in accordance with its obligations under [the
treaty] or that those obligations had ceased to be binding upon it’.48
Article 27(a) confirms one consequence of this distinction between the
preclusion of wrongfulness and the termination or suspension of an
obligation: ‘The invocation of a circumstance precluding wrongfulness
in accordance with this Chapter is without prejudice to: . . . (a) compli-
ance with the obligation in question, if and to the extent that the
circumstance precluding wrongfulness no longer exists’. The phrase
‘compliance with the obligation in question’ includes ceasing the act
whose wrongfulness the circumstance precluded. The phrase ‘to the
extent’ suggests that the circumstance may lessen gradually and allow
for partial performance of the obligation. The provision does not answer
questions about how to resume performance of an obligation (except by
providing that invocation of the circumstance is without prejudice to
compliance with it).49
All of this is not to suggest that the same facts cannot justify both the
preclusion of wrongfulness and the termination of an obligation. This is
why Article 27(a) is framed as a ‘without prejudice’ provision. For
example, a breach of a treaty might both justify countermeasures and
constitute ‘a material breach’ justifying the termination of the treaty

45
Draft Articles Commentary, Pt I, Ch. V, §9.
46
But contra Christakis (2007), 223: ‘Les “circonstances excluant l’illicéité” . . .
transforment par leur touche magique un acte illicite en un acte conforme au droit
international’. Translation: ‘The “circumstances precluding wrongfulness” . . . transform
with their magic touch a wrongful act into an act conforming to international law’.
47
Crawford, Second Report, 60.
48
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 39. One reason that consent may not belong in Pt I,
Ch. V is that it could render an obligation inoperative: Crawford, Second Report, 61–2.
49
ARSIWA Commentary, Art. 27, §§2, 3.
 circumstances precluding wrongfulness 283

under VCLT Article 60.50 Or facts might amount to both force majeure and
a supervening impossibility of performing the treaty from which that
obligation arises, justifying its suspension or termination under VCLT
Article 61. The principles in this example differ in three ways: they are
grounded in different fields of law; force majeure affects the particular
obligation, whereas the impossibility affects the treaty itself; and force
majeure justifies non-performance only so long as the circumstance sub-
sists. Another aspect of the operation of a supervening impossibility of
performing a treaty is that it terminates the treaty not automatically but
only if one of the parties so decides.51 In contrast, even on facts such as
those justifying force majeure, a state’s unilateral act does not normally
terminate an obligation arising from general international law.52

9.2 General justifications and excuses

9.2.1 Consent
Consent highlights the distinction between the termination or suspen-
sion of an obligation and the mere preclusion of wrongfulness. States
may, of course, terminate or suspend a treaty by consent and thereby
terminate or suspend obligations arising from it.53 But that is not the
situation dealt with here. Rather, Article 20 provides: ‘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.’ As the reference to
‘limits’ implies, the primary obligation continues to govern relations
between the two states; they dispense with it only for the particular
occasion or purpose consented to.54 This is most obvious where an
obligation is owed to multiple states, in that the consent of one will
not preclude wrongfulness to others: it concerns only the bilateral rela-
tions between the acting state and the consenting state.55 For instance,
Austria’s consent to a customs union with Germany in 1931 (though in
the event disallowed by the Treaty of Saint-Germain-en-Laye56) could not
preclude the wrongfulness of Germany’s conduct insofar as it breached

50
Ibid., §3.
51
Ibid., Pt I, Ch. V, §4. Further: Crawford, Second Report, 59; Paddeu, (2011) 82 BYIL
(forthcoming).
52 53
Crawford, Second Report, 59. VCLT, Art. 54(b).
54
ARSIWA Commentary, Art. 20, §2; Crawford, Second Report, 60.
55 56
Crawford, Second Report, 60–1. 10 September 1919, (1920) 14 AJIL Supp. 30.
284 breach

its obligation to the parties to the Treaty of Versailles57 to respect

Austrian independence.58
An example of the operation of consent is Armed Activities on the
Territory of the Congo. There the International Court appeared to proceed
on the assumption that insofar as the Democratic Republic of the Congo
had consented, that precluded the wrongfulness of Uganda’s conduct in
sending troops on to its territory.59 Other cases that might fall under
Article 20 include a state’s consent to transit through its airspace or
waters, to a facility built on its territory, to the conduct of an official
investigation there or to humanitarian relief or rescue operations.60 As
the Court affirmed in Armed Activities, no particular formalities are
required for its withdrawal.61
One difficulty with including consent in Part One, Chapter V is that
whereas the other five circumstances are defined in the ARSIWA (coun-
termeasures, force majeure, distress and necessity) or by the UN Charter
and the well-developed rules of general international law connected to it
(self-defence), consent is qualified only by that elliptical term ‘valid’.62
The meaning of ‘valid’ is a vexed question, reaching beyond the law of
state responsibility into other realms about which little can be said
here.63 First, consent must be ‘clearly established’ and ‘actually
expressed by the State rather than merely presumed on the basis that
the State would have consented if it had been asked’.64 But this does not
prevent consent from being tacit or implicit rather than communicated
in some formal way. In Savarkar, a tribunal held that France had
impliedly consented to an arrest made on its territory by British agents –
otherwise a breach of its sovereignty – through the conduct of a French
57
28 June 1919, 225 CTS 188.
58
Customs Régime between Germany and Austria, (1931) 41 PCIJ Ser. A/B No. 41, 37, 46, 49;
ARSIWA Commentary, Art. 20, §9 n. 346. One state – Austria – queried the phrase ‘in
relation to that State’ in a draft of Art. 20 (which survived essentially intact) ‘since
consent may render conduct lawful generally’: Crawford, Second Report, 61. But even if
that ‘may’ be so, it is not so in all cases.
59
Armed Activities on the Territory of the Congo (DRC v. Uganda), ICJ Rep. 2005 p. 168, 212–13
(various treaties, with a limited exception, did not ‘constitute consent by the DRC to the
presence of Ugandan troops on its territory for the period after July 1999, in the sense of
validating that presence in law’), 215, 224 (‘Uganda engaged in the use of force for
purposes and in locations for which it had no consent whatsoever’). See Ben Mansour, in
Crawford, Pellet and Olleson (2010) 439, 440–1.
60
ARSIWA Commentary, Art. 20, §1.
61
Armed Activities (DRC v. Uganda), ICJ Rep. 2005 p. 168, 198.
62 63
Crawford, Second Report, 61. See Abass, (2004) 53 ICLQ 211.
64
ARSIWA Commentary, Art. 20, §6; Armed Activities (DRC v. Uganda), ICJ Rep. 2005
p. 168, 211.
 circumstances precluding wrongfulness 285

brigadier who assisted them, even though he had no authority to enter

into international agreements on its behalf.65 And in Russian Indemnity,
its ambassador having accepting repayments from Turkey of only the
capital of an indemnity over many years without reservation, Russia had
waived any interest payable for delay.66 Ben Mansour suggests that one
difference between these cases of tacit or implicit consent established
from conduct and those of presumed and hence invalid ‘consent’ is the
perception of the acting state: whether it believes in good faith, as the
British police did in Savarkar, that the other state has consented.67
Second, the person who consents must be authorized to do so on the
state’s behalf. This is not the same as attributing the act to the state –
although that is also required for consent to be valid.68 For example, in
1960 a province of the Congo69 ostensibly consented to a military inter-
vention by Belgian forces on Congolese territory. Simply attributing that
act to the Congo (which would nowadays occur under ARSIWA Article 4)
could not resolve whether a subnational entity such as a province could
give consent, as opposed to the national government alone.70 The same
would be true of an ostensible consent by an insurrectional movement.71
Of the possibility that the contras might have asked the United States to
intervene in Nicaragua, the International Court said: ‘it is difficult to see
what would remain of the principle of non-intervention in international
law if intervention, which is already allowable at the request of the
government of a State, were also to be allowed at the request of the
opposition’.72 Thirlway comments that apart from this ‘pragmatic justi-
fication’, an opposition group simply does not have status to consent ‘to
what would otherwise be an unlawful act against the State’.73 In fact,
who can consent to acts that would otherwise breach different primary
rules – entering the premises of a diplomatic mission, establishing a

65
Savarkar (Great Britain/France), (1911) 11 RIAA 243, 252–5; ARSIWA Commentary,
Art. 20, §8.
66
Russian Indemnity (Russia/Turkey), (1912) 11 RIAA 421, 446.
67
Ben Mansour (2010), 442.
68
Draft Articles Commentary, Art. 29, §11; Ben Mansour (2010), 443.
69
Then the Republic of the Congo or Congo-Léopoldville and now the Democratic Republic
of the Congo.
70
Belgium made little attempt to justify its intervention to the Security Council except to
ensure safety (UN Doc. S/PV.873, §§186–8): ‘in the state of anarchy at present existing in
the Congo, is it possible to refuse assistance to the lawful, constitutional head of a
provincial government constituted in accordance with the fundamental law of the
Congolese State?’ See further ARSIWA Commentary, Art. 20, §5.
71
Crawford, Second Report, 61, citing comments by the United Kingdom.
72 73
Nicaragua, ICJ Rep. 1986 p. 14, 126. Thirlway (1995), 73.
286 breach

foreign military base or intervention by Belgian or US troops – might

differ depending on those rules.74 In the case of the diplomatic mission,
only its head could consent.75 Factors relevant to authorization might
include whether the legitimacy of an authority ostensibly consenting has
been called into question; the state’s domestic law, which might author-
ize different persons or authorities to consent in different situations; the
international law rules on the will of the state; and, if a person or
authority who ostensibly consented was not authorized to do so, whether
the state whose act they ostensibly consented to knew or ought to have
known that.76
Third, consent must be freely given. Thus the Nuremberg Tribunal
implied that any consent by Austria to the Anschluss with Germany in
1938 would have been coerced: matters such as ‘the strong desire
expressed in many quarters for the union of Austria and Germany’,
about which the Tribunal expressed scepticism, were in any case imma-
terial, because the ‘ultimate factor was the armed might of Germany
ready to be used if any resistance was encountered’.77 Consent must
likewise not be vitiated by error, fraud or corruption. The commentary
suggests that the rules on the validity of consent to treaties provide
guidance on these matters.78 There are also cases where consent can
never be validly given (discussed below under Article 26 on peremptory
norms).
Also illustrated by the Anschluss is the scope of consent. Consent by
Austria to the customs union in 1931 would not have gone far enough to
preclude the wrongfulness of Germany’s conduct in annexing it. Equally,
consent to overflight by civilian aircraft is not consent to overflight by
aircraft transporting troops or arms, and consent to stationing foreign
troops for a fixed period cannot extend beyond that period. This much is
clear from Article 20: consent is to ‘a given act’ within ‘the limits’ of that
consent.79 In Armed Activities the Court emphasized that the Congo’s
consent to Uganda’s military presence was further limited by place and

74
ARSIWA Commentary, Art. 20, §6.
75
Vienna Convention on Diplomatic Relations, 16 April 1961, 500 UNTS 95, Art. 22(1).
76
ARSIWA Commentary, Art. 20, §§4–6.
77
International Military Tribunal (Nuremburg), Judgment and Sentences, 1 October 1946,
(1947) 41 AJIL 172, 194; ARSIWA Commentary, Art. 20, §4 n. 341.
78
ARSIWA Commentary, Art. 20, §6. But France and the United Kingdom pointed out that
analogies with other areas of law ‘provide uncertain guidance as to whether a particular
official had authority to “preclude the wrongfulness” of conduct by consenting to it’:
Crawford, Second Report, 61.
79
ARSIWA Commentary, Art. 20, §9.
 circumstances precluding wrongfulness 287

objective: to action ‘against rebels in the eastern border and in particular

to stop them operating across the common border’.80 If, however, con-
sent is conditional – say, if a foreign military presence is conditional on
paying rent for use of the host state’s facilities – a breach of the condition
will be wrongful but ‘will not necessarily take conduct outside of the
limits of consent’.81
Article 20 excludes cases where consent is ostensibly given after the
act has occurred, which are more properly treated as a form of waiver or
acquiescence (Article 45).82 Consent must instead be given in advance or
at the time the act is occurring.83 But Abass rightly observes that ‘[w]hilst
it is desirable that consent to an internationally wrongful act precedes
the commission of that act, States rarely consent in advance to unlawful
acts against themselves.’ He adds that the principle of volenti non fit
iniuria – which Article 20 embodies – is limited even in domestic law,
in that the consenting party may not have full knowledge of the extent
or nature of the risk; the principle will not excuse unforeseeable acts.84
This problem of unforeseeability in cases of consent per se (as distinct
from cases of waiver) is, as with the scope of consent more generally,
partly dealt with by the limitations imposed on Article 20 by its terms:
consent to ‘a given act’ precludes the wrongfulness only of ‘that act’.
Article 20 refers to ‘consent by a State’ rather than by individuals,
companies or other non-states. But particular primary rules may still
take consent by those parties into account. For instance, consent by
an investor to arbitration under the ICSID Convention Article 27(1)85
suspends the right of diplomatic protection by that investor’s state. In
contrast, at least some human rights conferred (or ‘recognized’) by the
International Covenant on Civil and Political Rights (ICCPR) or other
treaties cannot be waived, although an individual’s freely given consent
may be relevant to their application.86
Questions about the meaning of ‘valid’ and the scope of consent reflect
a more fundamental anomaly – one related to the argument that, unlike
certain other circumstances, consent in advance simply renders an act

80
Armed Activities (DRC v. Uganda), ICJ Rep. 2005 p. 168, 198–9.
81
ARSIWA Commentary, Art. 20, §9 n. 347.
82 83
On waiver see Chapter 2. ARSIWA Commentary, Art. 20, §3.
84
Abass (2004), 216–17, citing Wooldrige v. Summer, [1963] 2 QB 43, 69.
85
Convention on the Settlement of Investment Disputes between States and Nationals of
Other States, 18 March 1965, 575 UNTS 159.
86
E.g. International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS
171, Arts. 7, 8(3), 14(1)(g), 23(3); see ARSIWA Commentary Art. 20, §10.
288 breach

lawful. If it is true that consent can be given only in advance, and if it is

also true that its validity varies so drastically from case to case,
depending in part on the applicable rules about authority to consent, it
is difficult to distinguish between consent as an element of the definition
of a primary obligation and consent as a circumstance precluding the
wrongfulness of the non-performance of that obligation. Abass writes:
Although it is true that consent is a well-established principle of international
law, its pedigree . . . may very well be misleading in reality, at least insofar as its
application to daily intercourse amongst States is concerned. There are no given
rules of international law governing consent and international tribunals always
treat the matter on the basis of facts and materials of cases appearing before
them. The [ARSIWA] contain no provisions for these issues.87

Consent can be seen as being incorporated into particular primary

rules, perhaps in different ways in different cases. It could thus have
been deleted from the ARSIWA altogether.88 Against this, Pellet sup-
ported a comment by Addo that ‘experience should prevail over logic’,
adding that ‘the relevant experience and practice’ supported retaining
consent: there were both primary rules that could exclude it as a possi-
bility and a general one that when a state consented not to apply a rule of
positive law, ‘the wrongfulness itself was expunged’.89 It is indeed pos-
sible to envisage cases where an obligation is properly formulated in
absolute terms – without a qualification for consent – but where consent
nonetheless precludes the wrongfulness of an act. But it is hard to find
any in practice. The examples of consent in the Draft Articles Commen-
tary all relate to primary rules that are not formulated in absolute terms
but instead allow the target state to validly consent to conduct that
would otherwise constitute a breach: prohibitions on the exercise of
jurisdiction on another state’s territory, on the use of force against it,
on intervention in its internal affairs and so on.90
That most states ultimately preferred to retain consent, despite the
objection that it does not so much preclude the wrongfulness of an
otherwise wrongful act as render the obligation inapplicable in the first
place, reflects their understandable anxiety that ‘too many abuses had
been committed in the name of prior consent validly given’, including
‘blatant acts of intervention’, and that deleting it ‘could be interpreted as
the abrogation of an important principle’ and leave states in ‘want of

87 88
Abass (2004), 213. Crawford, Second Report, 61–2.
89
ILC Ybk 1999/I, 150. See further Ben Mansour (2010), 444.
90
Crawford, Second Report, 62 and n. 455.
 circumstances precluding wrongfulness 289

clearly stated limits’.91 Examples such as the Anschluss and Armed Activities
bolster this anxiety. The retention of consent is hence best explained as a
pragmatic widening of the boundary that insulates secondary from pri-
mary rules. Ben Mansour writes:
[C]onsent was retained . . . 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.92

9.2.2 Self-defence
Another provision whose presence in Part One, Chapter V might at first
seem incongruous is Article 21: ‘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.’ This echoes the
reservation by UN Charter Article 51 of the ‘inherent right of individual
or collective self-defence’ despite the ban on ‘the threat or use of force’ in
Article 2(4).93 As the term ‘lawful’ implies, Article 21 imports wholesale
the primary rules applicable under the UN Charter (including the
requirements of proportionality and necessity94) on when and to what
extent self-defence operates.95 The ILC baulked at expressing a view on
‘any total identity of content between the rule in Article 51 of the
Charter and the customary rule of international law on self-defence’ on
the ground that it was enough to be faithful to the Charter.96 Recent
state practice bears this out, in that states seem to assume self-defence as
recognized in the Charter is the sole justification available for uses of
force other than authorization by the Security Council under UN Charter
Chapter VII. In 2008, for instance, Turkey proffered it to justify pursuing
Partiya Karkerên Kurdistanê (PKK) guerrillas into northern Iraq.97
91 92
ILC Ybk 1999/II(2), 74–5; Ben Mansour (2010), 442. Ben Mansour (2010), 447.
93
See Legality of the Threat or Use of Nuclear Weapons, ICJ Rep. 1996 p. 226, 244, 263.
94
See Brownlie’s Principles, 747–57; Thouvenin, in Crawford, Pellet and Olleson (2010) 455.
95
ARSIWA Commentary, Art. 21, §6. See further Thirlway (1995), 73–9.
96
Draft Articles Commentary, Art. 34, §20. For a discussion of some of those controversies,
see Thouvenin (2010), 456–9.
97
‘La Turquie, en lançant une opération militaire dans le nord de l’Irak, a fait usage de son
“droit légitime à l’autodéfense” contre les rebelles kurdes, a déclaré mardi le Premier
ministre turc Recep Tayyip Erdogan’: ‘Rebelles kurdes: l’Irak condamne l’incursion
turque dans le nord du pays’, Agence France-Presse, 26 February 2008, available at www.
ladepeche.fr/article/2008/02/26/437366-rebelles-kurdes-l-irak-condamne-l-incursion-
turque-dans-le-nord-du-pays.html, cited in Thouvenin (2010), 458. Translation: ‘Turkey,
in launching a military operation in northern Iraq, exercised its “lawful right to self-
defence” against the Kurdish rebels, declared Turkish Prime Minister Recep Tayyip
Erdogan on Tuesday.’
290 breach

The seeming incongruity of Article 21 is because – as, arguably, with

consent – states that are acting in self-defence are not even potentially in
breach of UN Charter Article 2(4); the ‘inherent right’ so to act is part of
the primary obligation itself.98 Such a right does not belong among
circumstances precluding wrongfulness.99 The ILC accepted this.100
Self-defence, however, may justify not only action taken despite UN
Charter Article 2(4) but also the non-performance of other obligations
if it is related to that action.101 It can be seen as both a right and a
circumstance precluding wrongfulness.102 A state acting in self-defence
may trespass on to the aggressor state’s territory, interfere in its internal
affairs or disrupt its external trade contrary to the provisions of a
treaty.103 The separate legal regime that, historically, resolved this
problem by simply suspending most treaties between warring states is
nowadays of little use. So is the VCLT in this respect: Article 73 simply
states that it does not ‘prejudge any question that may arise in regard to
a treaty . . . from the outbreak of hostilities between States’. Since the
inception of the UN Charter, declarations of war have been rare. Instead,
states mostly invoke self-defence against other states with which they
are notionally at peace.104 For instance, in Oil Platforms, even while a
treaty for ‘firm and enduring peace and sincere friendship’ between Iran
and the United States105 remained in force, the United States claimed
that attacks it made against Iranian oil platforms could be ‘justified as
acts of self-defence, in response to what it regarded as armed attacks by
Iran’, and the International Court considered this claim in the light of
‘the prohibition in international law on the use of force, and the qualifi-
cation to it constituted by the right of self-defence’.106

98
ARSIWA Commentary, Art. 21, §1.
99
Thouvenin (2010), 459. Ago argued that self-defence connotes ‘a situation or de facto
conditions, not a subjective right’: Ago, Eighth Report, ILC Ybk 1980/II(1), 53.
100 101
Crawford, Second Report, 74. ARSIWA Commentary, Art. 21, §2.
102 103
Thouvenin (2010), 459–61. Crawford, Second Report, 74–5.
104
ARSIWA Commentary, Art. 21, §2.
105
Treaty of Amity, Economic Relations and Consular Rights, 15 August 1955, 284 UNTS
93, Art. I.
106
Oil Platforms (Iran v. US), ICJ Rep. 2003 p. 61, 181, 183. The Court’s jurisdiction under the
Treaty of Amity, Economic Relations and Consular Rights to decide questions of the
interpretation or application of Art. XX(1)(d) (quoted above) extended to ‘the
determination whether action alleged to be justified under that paragraph was or was
not an unlawful use of force’, by reference to the applicable international law, including
the UN Charter and customary law: ibid., 182–3. Since the United States’ actions
constituted a use of force not qualifying as self-defence, they could not constitute
measures permitted by that provision: ibid., 199.
 circumstances precluding wrongfulness 291

So it falls to the principle codified in Article 21 to preclude the wrong-

fulness of the non-performance of obligations related to action under UN
Charter Article 51. But it does not apply to all such related obligations.
First, human rights treaties distinguish between rights from which
states can and cannot derogate in times of public emergency, including
action in self-defence.107 For instance, the ICCPR provides that the rights
to life and not to be subjected to torture or slavery, among others, are
non-derogable even in times of public emergency.108 Second, rules of
international humanitarian law such as those codified in the Geneva
Conventions 1949 and their First Protocol 1977109 are ‘intransgressible
principles of international customary law’.110 So why can self-defence
not preclude the wrongfulness of not performing such obligations? The
International Court suggested the answer in Legality of the Threat or Use of
Nuclear Weapons. In considering whether environmental damage caused
by a nuclear weapon would breach certain environmental protection
treaties, it said:
[T]he issue is not whether the treaties . . . are or are not applicable during an
armed conflict, but rather whether the obligations stemming from these treaties
were intended to be obligations of total restraint during military conflict.
The Court does not consider that the treaties . . . could have intended to deprive
a State of the exercise of its right of self-defence under international law because
of its obligations to protect the environment. Nonetheless, States must take
environmental considerations into account when assessing what is necessary
and proportionate in the pursuit of legitimate military objectives.111

On first reading, the word ‘lawful’ in what is now Article 21 was related
only to the requirements of proportionality, necessity and an armed
attack.112 It could have been amended to refer to the requirement that

107
See Gross and Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006),
Ch. 5; Oráa, Human Rights in States of Emergency in International Law (1992), chs. 4, 9.
108
ICCPR, Art. 4(2).
109
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
287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125
UNTS 609 (1st Protocol).
110
Nuclear Weapons, ICJ Rep. 1996 p. 226, 257.
111
Ibid., 242. See ARSIWA Commentary, Art. 21, §4.
112
Draft Articles Commentary, Art. 34.
292 breach

an obligation not be ‘expressed or intended’ to be one of ‘total restraint,

even for States engaged in armed conflict or acting in self-defence’.113
But ultimately it was agreed that ‘lawful’ would be understood to cover
such matters of ius in bello as intransgressible rules of international
humanitarian law.114 According to Thouvenin, such rules are lex specialis:
they explicitly or implicitly reject the self-defence principle.115 But lex
specialis operates where there is a conflict of norms, and since Article 21
permits only ‘lawful’ self-defence, arguably there is no such conflict.
Also left to the primary rules is the effect of self-defence on other –
neutral116 – states. The position is somewhat different from that in
cases of consent. Whereas consent by one state unquestionably does
not preclude the wrongfulness of acts to non-consenting states, the
ARSIWA leaves unanswered the question whether self-defence can
preclude the wrongfulness of acts vis-à-vis neutral states. It may be that
a state of war affects them in that a state acting in self-defence has
certain belligerent rights, even against neutrals. But the ILC chose not to
enter into the debate about the extent to which the law of neutrality has
survived the UN Charter unchanged.117 Thouvenin speculates that
the text of Article 21 implies an answer of a sort ‘by not specifying’ that
self-defence may be only against an aggressor state: ‘[u]nder Charter law
the “option of third States” remains open.’118 But this just begs the
question, since the option ‘remains open’ primarily in the sense of
remaining controversial. So the better view is that the effect of Article
21 is what the ILC intended it to be and what the commentary says it is:
that it ‘leaves open all issues of the effect of action in self-defence vis-à-
vis third States’.119

9.2.3 Countermeasures
When countermeasures (the term now preferred to ‘sanctions’, ‘reac-
tions’, ‘legitimate reprisals’, ‘self-protection’ and ‘self-help’120) will be
lawful is dealt with elsewhere.121 Two things matter here. First, they can
be lawful against a state responsible for an internationally wrongful act

113 114
Crawford, Second Report, 75, 87. ILC Ybk 1999/II(2), 77–8.
115
Thouvenin (2010), 465.
116
The law of neutrality distinguishes between acts against belligerents and neutrals. It is
fundamental and applies to all international armed conflict: Nuclear Weapons, ICJ Rep.
1996 p. 226, 261.
117 118
Crawford, Second Report, 76. Thouvenin (2010), 464.
119 120
ARSIWA Commentary, Art. 21, §5. Ibid., Art. 22, §3.
121
ARSIWA and Commentary, Pt III, Ch. II. Further: Chapter 21.
 circumstances precluding wrongfulness 293

on certain conditions (Articles 49–54).122 Second – like all circumstances

precluding wrongfulness – they do not suspend or terminate an injured
state’s obligations to the responsible state but ‘are limited to the non-
performance for the time being’ of those obligations (Article 49(2)).
Article 22 covers any measure meeting those conditions.123 It is confined
to providing:
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.124

Although controversy about the bifurcated approach to countermeas-

ures in the ARSIWA and about the conditions for countermeasures articu-
lated in Part III, Chapter II was evident during drafting and in some
respects continues, there can be no doubting the essence of Article 22.
The International Court acknowledged the principle in Gabčı́kovo-
Nagymaros. Having found that Czechoslovakia committed an (otherwise)
internationally wrongful act by putting a certain variant of the dam into
operation, it considered whether that act constituted a countermeasure.
The question was ‘whether such wrongfulness 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’.125 The
tribunal in Corn Products International Inc. v. Mexico, one of several cases
where Mexico defended a tax on high-fructose corn syrup as a counter-
measure in response to breaches of the North American Free Trade
Agreement (NAFTA) by the United States, adopted this view:
That a countermeasure which complied with certain conditions could preclude
the wrongfulness of an act which would otherwise be contrary to international
law was expressly recognized [in Gabčı́kovo-Nagymaros] . . . It is generally agreed

122
See ARSIWA Commentary, Art. 22, §2, citing as examples confirming the lawfulness of
countermeasures Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 55; Naulilaa (Responsibility of
Germany for damage caused in the Portuguese colonies in the south of Africa) (Portugal/Germany),
(1928) 2 RIAA 1011, 1025–6; Cyne (Responsibility of Germany for acts committed subsequent to
31 July 1914 and before Portugal entered the war) (Portugal/Germany), (1930) 2 RIAA 1035,
1052; Air Services Agreement of 27 March 1946 between the US and France (US/France), (1979)
18 RIAA 417.
123
ARSIWA Commentary, Art. 22, §6.
124
The ILC rejected an approach similar to the one it took in the case of self-defence of
referring only to ‘lawful’ countermeasures and thereby obviating the need for Pt III,
Ch. II: ILC Ybk 1999/II(2), 87.
125
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 55.
294 breach

that the conditions which a countermeasure is required to meet are set out in the
ILC Articles on State Responsibility (notably Articles 22 and 49–53).126

The NAFTA tribunal in Archer Daniels v. Mexico, another of those cases,

took ‘as an authoritative statement of customary international law on
countermeasures the position of the International Court of Justice, as
confirmed by the ILC Articles’.127
Here the position of third states (other than the injured state and the
responsible state) is different again from those in cases of consent and
self-defence. There are two questions to consider. First, as the phrase
‘against the latter [responsible] state’ indicates, by definition the injured
state cannot take countermeasures against a third state; they must be
bilateral. But this does not preclude the possibility of indirect or conse-
quential effects on a third state provided that they do not arise from a
breach of an obligation to that third state.128 In Cysne, which concerned
Germany’s responsibility for damage to certain Portuguese interests
before Portugal entered the First World War, the tribunal said of belli-
gerent reprisals (which, although distinct from countermeasures, oper-
ate on a similar principle):
[L]es représailles, consistant en un acte en principe contraire, ne peuvent se
justifier qu’autant qu’elles ont été provoquées par un autre acte également con-
traire à ce droit. Les représailles ne sont admissible que contre l’État provocateur. Il se
peut, il est vrai, que des représailles légitimes, exercées contre un État offenseur,
atteignent des ressortissants d’un État innocent. Mais il s’agira là d’une consé-
quence indirecte, involontaire, que l’État offensé s’efforcera, en pratique, tou-
jours d’éviter ou de limiter autant que possible.129

126
Corn Products International Inc. v. Mexico, Decision on Responsibility, ICSID Case No. ARB
(AF)/04/01, 15 January 2008, 146 ILR 581, 624 (§145).
127
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. Mexico, ICSID
Case No. ARB(AF)/04/05, 21 November 2007, 146 ILR 445, 488 (§125). Cf. also Cargill Inc.
v. Mexico, ICSID Case No. ARB(AF)/05/02, 18 September 2009, 146 ILR 642, 763 (§420):
Under customary international law, a countermeasure may constitute a
circumstance precluding the wrongfulness of an act. The ILC articles regarding
countermeasures provide an important point of departure in ascertaining more
precisely the content of that custom.
Further: Lesaffre, in Crawford, Pellet and Olleson (2010) 469, 473.
128
ARSIWA Commentary, Art. 22, §§4–5.
129
Cyne (Responsibility of Germany for acts committed subsequent to 31 July 1914 and before
Portugal entered the war) (Portugal/Germany), (1930) 2 RIAA 1035, 1056–7 (emphasis in
original). Translation from ARSIWA Commentary, Art. 22, §5:
[R]eprisals, which constitute an act in principle contrary to the law of nations, are
defensible only in so far as they were provoked by some other act likewise contrary
to that law. Only reprisals taken against the provoking State are permissible. Admittedly,
it can happen that legitimate reprisals taken against an offending State may
 circumstances precluding wrongfulness 295

In Gabčı́kovo-Nagymaros, the International Court affirmed that a coun-

termeasure must be taken only against the target state: it ‘must be taken
in response to a previous internationally wrongful act of another State
and must be directed against that State’.130
Article 22 does not answer the second question concerning third
states, namely, whether a third state to which the responsible state owes
the relevant obligation but that is not itself injured by that state’s act can
take countermeasures against that state. This turns partly on the notion
of erga omnes obligations and is discussed in Chapter 11.

9.2.4 Force majeure131

The remaining three circumstances precluding wrongfulness – force
majeure, distress and necessity – all denote cases where, at least in some
sense, a state is compelled to commit an act that does not conform with
an international obligation. But as the term force majeure (literally,
‘superior force’) implies, it differs from those other two circumstances
in that the state’s act is due to something beyond its control. That is to
say: it is essentially involuntary.132 States often invoke it in interstate
cases as a principle of customary international law, and analogous
doctrines exist in domestic legal systems.133 It also operates in inter-
national commercial arbitration and may amount to a general principle
of law.134 Article 23(1), which has been described as ‘narrow and strict’
compared with past formulations of force majeure,135 requires three
elements to be satisfied:
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

affect the nationals of an innocent State. But that would be an indirect

and unintentional consequence which, in practice, the injured State will always
endeavour to avoid or limit as far as possible.
130 131
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 55. Generally: Paddeu (2011).
132
ARSIWA Commentary, Art. 23, §1. This is a different matter from intention (or
subjective fault). ‘An involuntary act is one outside the control of the will, such as a
sneeze; an unintentional act is one not aimed at or desired, such as a person’s death
resulting from a misdirected shot’: ‘Unintentional; involuntary’, in Garner, A Dictionary
of Modern Legal Usage (2nd edn, 1995) 900.
133
Paddeu (2011).
134
ARSIWA Commentary, Art. 23, §§1, 9; Crawford, Second Report, 66. See also ILC Ybk
1978/II(1) 61. For force majeure in the Iran–US Claims Tribunal see Aldrich, The
Jurisprudence of the Iran–United States Claims Tribunal (1996), 306–20.
135
Paddeu (2011).
296 breach

control of the State, making it materially impossible in the circumstances

to perform the obligation.

As for the first element, an irresistible force or unforeseen event:

The adjective ‘irresistible’ qualifying the word ‘force’ emphasizes that there must
be a constraint which the State was unable to avoid or oppose by its own means.
To have been ‘unforeseen’ the event must have been neither foreseen nor or an
easily foreseeable kind. Further the ‘irresistible force’ or ‘unforeseen event’ must
be causally linked to the situation of material impossibility, as indicated by the
words ‘due to force majeure . . . making it materially impossible’.136

In Lighthouses, France sought restitution of a lighthouse that Greece

had requisitioned from a French company in the First World War and
that had then been bombarded by enemy attacks. That event was caus-
ally linked to the situation: the damage constituted by the impossibility
of restoring the lighthouse in the same state ‘a été causé non par la
main-mise de la Grèce, mais par le bombardement qui l’a fortement
endommagé, bombardement constituant un cas de force majeure’.137
In Wipperman, the United States claimed an indemnity from Venezuela
for the loss of a boat carrying a consul and other property that indigen-
ous people had pillaged in 1862. But a tribunal held:
[T]here is nothing in the record to show that the Government [of Venezuela] had
any notice of the incursion or any cause to expect that such a raid was
threatened, and while it may be true that Governments are prima facie respon-
sible for the acts of their subjects and aliens commorant [i.e. resident] within
their jurisdiction, this is a presumption which is always rebuttable by any facts
which will afford a reasonable excuse for the dereliction against which the
complaint is aimed.

Instead, it ‘was one of those occasional and unexpected outbreaks

against which ordinary and reasonable foresight could not provide’.138

136
ARSIWA Commentary, Art. 23, §2 (ellipsis in original).
137
Ottoman Empire Lighthouses Concession (France/Greece), (1956) 12 RIAA 155, 219–20.
Translation: ‘was caused not by the seizure by Greece, but by the bombardment that
badly damaged it, bombardment constituting a case of force majeure’.
138
Wipperman (US/Venezuela), (1889) 3 Moore, Int. Arb. 3039, 3042–3, discussed in ILC Ybk
1978/II(1) 61, 156. The tribunal contrasted this situation with that of a consul in a city
whose house is destroyed by acts of violence ‘aimed at him in his official capacity’ that
the military or police presumably ought to have been able to prevent. But it added
(3041):
The case would present more points of comparison if some savage tribe of Indians
on the warpath had unexpectedly stumbled upon a consul, we will say of
Venezuela, travelling for his health in some of the secluded byways of Arizona or
 circumstances precluding wrongfulness 297

The commentary interprets this and a series of comparable cases before

US–British, US–Venezuelan and British–Mexican mixed claims tribunals
involving rebel attacks as relying on the ‘unforeseeability’ of events to
preclude state responsibility for resulting injury to foreigners.139
More fraught is what ‘materially impossible’ means. It might result from
a natural event: a flood, earthquake or drought or weather that forces
aircraft into foreign airspace.140 In 1946, Yugoslavia indicated by
diplomatic note that it expected US aircraft not to enter its airspace
unauthorized ‘except in the case of emergency or bad weather, for which
arrangements could be made by agreement’, and the United States
replied that it presumed that Yugoslavia recognized an exception in
‘circumstances over which there is no control, such as bad weather, loss
of direction, and mechanical trouble’. Although this exchange also con-
cerned distress, the phrase ‘no control’ places the situations just mentioned
in the category of force majeure.141 The impossibility might also result from
human intervention. Lighthouses is one example involving acts of war or
duress by another state; others include American Electric & Manufacturing
Co.,142 Kelley v. Mexico143 and Chevreau (France v. UK).144 Cases involving
insurrections include the mixed claims tribunal cases and Spanish Zone of
Morocco.145 In Gould Marketing, the Iran–US Claims Tribunal said that by force
majeure it meant ‘social and economic forces beyond the power of the state
to control through the exercise of due diligence’.146 And in Anaconda-Iran
it confirmed that ‘strikes, riots and other civil strife in the course of
[the Iranian] Revolution had created classic force majeure conditions’.147

New Mexico, and then and there, without respect to the dignity of the consular
office and the law of nations, had divested him of all his valuables and then
proceeded suo more to take his scalp . . . [O]utrages of this kind on the western
frontier of the United States are more or less frequent, and . . . the whole military
force of that country out of garrison has not been sufficient to prevent the
occasional robbery or murder of innocent persons.
This shows that the tribunal also took account of the material impossibility of
preventing the raid.
139
ARSIWA Commentary, Art. 23, §7 n. 376, citing Saint Albans Raid (UK/US), (1873) 4
Moore, Int. Arb. 4042; De Brissot and ors (US/Venezuela), (1889) 3 Moore, Int. Arb. 2967; Gill
(1931) 5 RIAA 157; all discussed in ILC Ybk 1978/II(1) 61, 152–3, 157, 182.
140
For cases of aircraft diverted during the First World War, including due to fog or losing
their way in the clouds, see ILC Ybk 1978/II(1) 61, 124–5.
141 142 143
ILC Ybk 1978/II(1) 61, 103. (1905) 9 RIAA 145. (1930) 4 RIAA 608.
144 145
(1931) 2 RIAA 1113, 1123. (1925) 2 RIAA 615, 642.
146
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.
147
Anaconda-Iran, Inc. v. Iran et al., Interlocutory Award No. ITL 65-167-3, 10 December 1986,
13 Iran–US CTR 199, 213.
298 breach

Finally, a material impossibility might also result from both natural and
human factors combined, such as where the presence of rebels in an area
of natural disaster prevents a state from assisting foreigners affected by
the disaster.148
One thing it certainly does not cover is mere negligence. In 1906, a
bullet fired during rifle practice on a French warship mortally wounded
an American sailor while his ship was entering a harbour. The United
States claimed that although it was an accident, it suggested ‘a lack of
proper precaution’ and ‘cannot be regarded as belonging to the unavoid-
able class whereby no responsibility is entailed’. France subsequently
made reparation to the sailor’s family.149 States on both sides of the First
World War – France and Germany – likewise undertook to make repar-
ation for damage and to punish airmen who negligently bombed towns
in neutral Switzerland.150
It is equally certain that ‘materially impossible’ means more than just
materially difficult.151 This is clear from Russian Indemnity. There it did not
suffice that Turkey had found itself ‘aux prises avec des difficultés
financières de la plus extrême gravité, cumulées avec des événements
intérieurs et extérieurs (insurrections, guerres)’.152 The relatively negli-
gible sum it owed Russia would not imperil its existence or seriously
compromise its internal or external position. Likewise, the Permanent
Court said of force majeure in Serbian Loans: ‘It cannot be maintained that
the [First World War] itself, despite its grave economic consequences,
affected the legal obligations of the contracts between the Serbian
Government and the French bondholders’.153 The Sempra Energy tribunal
accepted that force majeure does not cover political or economic crises
that merely render performance of an obligation more difficult.154
Equally clear was the Rainbow Warrior tribunal. It quoted a comment in
the Draft Articles Commentary that the ‘adverb “materially” preceding

148
Szurek (2010) 475, 477; ARSIWA Commentary, Art. 23, §3.
149 150 151
ILC Ybk 1978/II(1) 61, 101. Ibid., 125. ARSIWA Commentary, Art. 23, §3.
152
Russian Indemnity (Russia/Turkey), (1912) 11 RIAA 421, 443. Translation: ‘in the grip of
financial difficulties of the most extreme seriousness, combined with internal and
external events (uprisings, wars)’. Although phrases such as ‘mis en péril l’existence de
l’Empire Ottoman’ (‘imperil the Ottoman Empire’s existence’) might equally evoke
necessity, the tribunal was specifically addressing force majeure.
153
Serbian Loans, (1929) PCIJ Ser. A No. 20, 39–40. The PCIJ rejected a similar plea, relying
on the ‘economic dislocation caused by the Great War’ in Brazilian Loans, (1929) PCIJ Ser.
A No. 21, 120.
154
Sempra Energy International v. Argentina, ICSID Case No. ARB/02/16, 28 September 2007,
§246. Further: Szurek (2010) 475, 480.
 circumstances precluding wrongfulness 299

the word “impossible” is intended to show that . . . it would not suffice

for the “irresistible force” or the “unforeseen external event” to have
made it very difficult for the State to act in conformity with the obliga-
tion’. It then held that force majeure did not apply ‘because the test of its
applicability is of absolute and material impossibility, and because a
circumstance rendering performance more difficult or burdensome does
not constitute a case of force majeure’.155
But this equating of material impossibility with ‘absolute’ impossi-
bility is perhaps misleading. In emphasizing the negligible amount of
Turkey’s debt, the Russian Indemnity tribunal seemed to leave open
whether, say, Greece could claim that the financial crisis triggered in
2010 by its high sovereign debt renders the performance of international
obligations materially impossible (provided, of course, that it could
establish the other elements of force majeure). The Vienna Conference
had such economic circumstances in mind when it fixed on a narrow
formulation for VCLT Article 61. It requires ‘the permanent disappear-
ance or destruction of an object indispensable for the execution of the
treaty’ before a treaty can be terminated or suspended. Although (as
discussed above) the same facts might amount to both force majeure and
a supervening impossibility of performing a treaty under that provision,
that will not necessarily be so. As the International Court explained in
Gabčı́kovo-Nagymaros,
During the conference, a proposal was made to extend the scope of the article
by including in it cases such as the impossibility to make certain payments
because of serious financial difficulties . . . Although it was recognized that such
situations could lead to a preclusion of the wrongfulness of non-performance
by a party of its treaty obligations, the participating States were not prepared
to consider such situations to be a ground for terminating or suspending a
treaty . . .156

In other words, the bar for material impossibility under ARSIWA

Article 23 is lower than that for terminating or suspending a treaty.157
It falls short of what – Rainbow Warrior notwithstanding – might be
called complete or absolute impossibility.
There are also instances where force majeure operates not as a circum-
stance generally precluding the wrongfulness of an otherwise wrongful
155
Rainbow Warrior, (1990) 20 RIAA 217, 253, quoting Draft Articles Commentary, Art. 31,
§40.
156
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 63. On the ‘economic impossibility’ of
performance see further Szurek (2010) 475, 479–80.
157
ARSIWA Commentary, Art. 23, §4.
300 breach

act but as a component of a specific primary obligation itself. These

include the Convention on the Territorial Sea and the Contiguous Zone
Article 14(3);158 the United Nations Convention on the Law of the Sea
(UNCLOS) Article 18(2);159 and the Convention on Transit Trade of Land-
locked States Article 7(1).160 The existence of such primary rules to the
same effect as the secondary rule codified in Article 23 does not prevent
them coexisting.161 Different again is where force majeure operates under
a contract between a state and an individual. There it might be able to
terminate the contract per se, whereas a circumstance precluding
wrongfulness does not terminate the obligation in question but merely
blocks its application for the time being.162
Article 23(2) contains two provisos. The first is that Article 23(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’.
In Libyan Arab Foreign Investment Company v. Burundi the ‘alleged impossi-
bility [was] not the result of an irresistible force or an unforeseen exter-
nal event beyond the control of Burundi’ but rather ‘the result of a
unilateral decision of that State’.163 This implies that the proviso simply
spells out an aspect of the requirement for a causal link between the
elements of force majeure. There is a similar exclusion under VCLT Article
61 of cases where ‘the impossibility is the result of a breach by that party
either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty’. This is stricter than
Article 23(2)(a) in that it requires a breach of obligation. But Article 23(2)(a)
is not so broad as to encompass any contribution by a state to a
situation of force majeure. In a previous draft it did require only that
a state had ‘contributed’. But such a formulation would have excluded

158
516 UNTS 205: ‘Passage includes stopping and anchoring, but only insofar as the same
are incidental to ordinary navigation or are rendered necessary by force majeure or by
distress.’
159
1833 UNTS 397. This effectively replicates the former provision but adds ‘or for the
purpose of rendering assistance to persons, ships or aircraft in danger or distress’.
160
597 UNTS 42: ‘Except in cases of force majeure all measures shall be taken by
Contracting States to avoid delays in or restrictions on traffic in transit.’
161
ARSIWA Commentary, Art. 23, §6.
162
See Szurek (2010) 475, 479 n. 23, citing among other authorities Mobil Oil Iran, Inc., et al.,
Partial Award No. 311-74/76/81/150-3, 14 July 1987, 16 Iran–US CTR 3. There the tribunal
said that it accords with practice in contract law for force majeure conditions merely to
suspend certain provisions of a contract and that usually they ‘will have the effect of
terminating a contract only if they make performance definitively impossible or
impossible for a long period of time’: ibid., 38 (§116).
163
(1994) 96 ILR 279, 318.
 circumstances precluding wrongfulness 301

cases where a state contributes unwittingly to the situation by an act

that does not in itself render the event less foreseen.164 As it stands
that is not enough; for the situation to be ‘due’ to the state’s conduct,
its role must be substantial.165
The second proviso is that Article 23(1) does not apply if ‘(b) the State
has assumed the risk of that situation occurring’. If a state accepts
responsibility for a particular risk, it renounces its right to rely on force
majeure to evade that responsibility. It may do so expressly, by agree-
ment, or by clear implication.166

9.2.5 Distress
Distress is distinct from force majeure in two ways.167 First, it precludes
the wrongfulness of voluntary acts. Whereas force majeure requires
material impossibility, in distress the author of the act has no real choice
than to breach an obligation. Second, it deals with a specific type of act
by individuals. Article 24(1) states: ‘The wrongfulness of an act of a State
not in conformity with an international obligation 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.’ The nationality of such other persons is
irrelevant, although they must have a special relationship with the
relevant state organ.168 The reason the requisite relationship was limited
to entrustment to the author’s care was to exclude situations that
depend on moral choice rather than compulsion.169
One reason to bear these distinctions in mind is that inclement
weather or other facts might result, in different cases, in either force
majeure or distress. In the diplomatic exchange discussed above, the
United States wrote that it presumed that Yugoslavia recognized ‘that
in case a plane and its occupants are jeopardized, the aircraft may
change its course so as to seek safety even though such action may result
in flying over Yugoslav territory without prior clearance’.170 Voluntarily
changing the course of an aircraft will bring the situation outside the
164 165
Crawford, Second Report, 67. ARSIWA Commentary, Art. 23, §9.
166
Ibid., §10.
167
On this distinction and that between distress and necessity see Paddeu (2011).
168
ARSIWA Commentary, Art. 24, §§1, 7. On second reading the United Kingdom criticized
this limitation and suggested that the article expressly recognize emergency
humanitarian action. But that is more a matter of necessity than of distress: Crawford,
Second Report, 67–8.
169
ILC Ybk 1999/I, 180.
170
ILC Ybk 1978/II(1) 61, 103; ARSIWA Commentary, Art. 24, §2.
302 breach

scope of force majeure but potentially within that of distress. Similarly, in

1975 the United Kingdom told the UN Security Council that the reason
its naval vessels had entered Icelandic territorial waters was ‘to seek
shelter from severe weather, as they have the right to do under custom-
ary international law . . . there was a severe snowstorm in progress, with
winds of force 8 gusting to force 9, and very high seas’.171 Iceland
disagreed on the facts (claiming that the United Kingdom intended to
provoke an incident) but did not take any legal point. Indeed, cases of
distress mostly occur in the seas or skies. Even the example of a land
frontier violation cited in the commentary occurred, if not at sea, at least
on a river: Italian officials crossed one to rescue a half-drowned soldier
whose ‘cries of distress’ they had heard coming from an Austro-
Hungarian island.172 And the same provisions of maritime treaties that
reproduce force majeure as a primary rule – the Convention on the
Territorial Sea and the Contiguous Zone Article 14(3) and UNCLOS
Article 18(2) – also permit ships to stop and anchor while passing
through foreign territorial seas if they are in distress. Some treaties on
maritime pollution also recognize distress.173
Rainbow Warrior illustrates distress against a more colourful back-
ground. France claimed that medical considerations had justified its
early removal from the island of the two agents whom its treaty with
New Zealand required it to detain there. It described those consider-
ations as ‘circumstances of distress in a case of extreme urgency involv-
ing elementary humanitarian considerations affecting the acting organs
of the state’. The tribunal accepted this as a possibility. But France had to
show, first, the re-establishment of its compliance with the treaty (on the

171
UN Doc. S/PV.1866, §24; ARSIWA Commentary, Art. 24, §3.
172
ARSIWA Commentary, Art. 24, §4 n. 390; ILC Ybk 1978/II(1) 61, 99.
173
An example is the Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter, 29 December 1972, 138 UNTS 1046, Art. V(1): the prohibition
on dumping wastes
shall not apply when it is necessary to secure the safety of human life or of
vessels, aircraft, platforms or other man-made structures at sea . . . in any case
which constitutes a danger to human life or a real threat to vessels, aircraft,
platforms or other man-made structures at sea, if dumping appears to be the only
way of averting the threat and if there is every probability that the damage
consequent upon such dumping will be less than would otherwise occur.
Insofar as this applies to threats to ‘human life’ it is consistent with distress under Art.
24, including the proviso in Art. 24(2)(b), but it is also broader insofar as it applies to
threats to ‘vessels [etc.]’. It also applies ‘in cases of force majeure caused by stress of
weather’ and so to that extent reproduces Art. 23. For other maritime treaties referring
to distress see further ARSIWA Commentary, Art. 24, §5 n. 395.
 circumstances precluding wrongfulness 303

principle discussed above that a circumstance precludes wrongfulness

only so long as it subsists); second, a good-faith effort to obtain New
Zealand’s consent in terms of the treaty; and, third,174
[t]he existence of very exceptional circumstances of extreme urgency involving
medical or other considerations of an elementary nature, provided always that a
prompt recognition of the existence of those exceptional circumstances is subse-
quently obtained from the other interested party or is clearly demonstrated.

One agent was pregnant. The tribunal concluded that her consequent
need for a medical examination and her desire to see her dying father did
not suffice for distress.175 Nor did the medical danger to the other agent
plainly jeopardize his life (though it might have done). Nonetheless, the
tribunal held that it did suffice for distress.176
The tribunal had earlier quoted a statement in the Draft Articles
Commentary that distress ‘may at most include a situation of serious
danger, but not necessarily one that jeopardizes the very existence of the
person concerned’.177 This approach is also implied by its reference to
‘elementary humanitarian considerations’ rather than more specifically
to threats to life. But if the tribunal intended to take the view that such a
lesser situation may suffice, it is inconsistent with the view of the ILC as
expressed in the commentary that ‘Article 24 is limited to cases where
human life is at stake.’178 A lower limit than this, extending to less-than-
life-threatening situations, would inevitably be a blurred one. Such a
lower limit is not needed insofar as necessity already covers emergency
situations more generally. On first reading this strictness was empha-
sized by the term ‘extreme distress’. But the word ‘extreme’ was deleted
on the ground that it added nothing of substance and that it should not
be open to a state to argue that even though life was at stake the
situation was not extreme enough.179
The strictness of Article 24 is also mitigated by the requirement that
there be no other ‘reasonable’ way to save the life at stake: it gives the
author some flexibility in choosing to save it, acknowledging that there
may be neither the time nor the personnel to conduct a proper examin-
ation before acting, yet still confines distress to urgent cases. Szurek calls
this a ‘psychological’ element (coupled with the ‘material’ element of
peril).180 But it is not a subjective test; it turns on reasonable belief rather

174 175
Rainbow Warrior, (1990) 20 RIAA 217, 255. Ibid., 259–64.
176 177
Ibid., 254, 255–9. Draft Articles Commentary, Art. 32, §10.
178 179
ARSIWA Commentary, Art. 24, §6. Ibid., §§6, 7; Crawford, Second Report, 68–9.
180
Szurek, in Crawford, Pellet and Olleson (2010) 481, 482–3.
304 breach

than the author’s psychological state as such. Thus in Hoff the Mexico–US
General Claims Commission appeared to apply an objective test. It for-
mulated ‘certain reasonably concrete criteria’ for when a ship could seek
refuge in a foreign port on the ground of distress:
Assuredly a ship floundering in distress, resulting either from the weather or
from other causes affecting management of the vessel, need not be in such a
condition that it is dashed helplessly on the shore or against rocks before a claim
of distress can properly be invoked in its behalf. The fact that it may be able to
come into port under its own power can obviously not be cited as conclusive
evidence that the plea is unjustifiable. 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.
Clearly an important consideration may be the determination of the question
whether there is any evidence in a given case of a fraudulent attempt to circum-
vent local laws. And even in the absence of any such attempt, it can probably be
correctly said that a mere matter of convenience in making repairs or in avoiding
a measure of difficulty in navigation can not justify a disregard of local laws.181

Among other factors justifying distress in that case, the captain’s

‘apprehension of the loss of the vessel and cargo’ was ‘well-grounded’
(that is to say: reasonable), and he ‘had no intent to perpetrate a fraud on
Mexican customs laws’.
A corollary of limiting distress to threats to life is that it is also limited
to conduct necessary to avoid those threats. So it will not always preclude
the wrongfulness of the non-performance of other international obliga-
tions or of requirements of another state’s domestic law. These may
include notifying the relevant authorities of the arrival of a ship or
aircraft. But this will depend on the obligation. In Hoff, it was unlawful
for Mexico to seize merchandise for breach of a customs law, because the
entry of the ship into port met the relevant criteria.182 In Cashin and Lewis
v. The King, in contrast, the Exchequer Court of Canada held that ‘[i]n
entering the port of Halifax, even under constraint or in distress’, a ship

181
Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison, Deceased (USA) v. Mexico, (1929) 4
RIAA 444, 447–8. The Commission slips between the terms ‘distress’ and ‘necessity’.
Indeed, the references to ‘the preservation of the ship’ and ‘the cargo’, as distinct from
the references to ‘the lives of people on board’, are strictly irrelevant to distress as
formulated in the ARSIWA. This shows the connection between distress and necessity
(Szurek (2010) 481, 485) but also the confusion that can result from a less precise
approach to distress than that taken by the ARSIWA.
182
Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison, Deceased (USA) v. Mexico, (1929) 4
RIAA 444. See further ARSIWA Commentary, Art. 24, §8 (in which the case is cited as
The Rebecca, (1929) 23 AJIL 860) and cases cited in ibid., n. 396.
 circumstances precluding wrongfulness 305

‘became subject to the laws of Canada and her master was bound to
make a report to the collector of customs’ in compliance with a Canadian
statute.183
Of the two provisos in Article 24(2), the first has substantively the
same effect as the first proviso to force majeure: Article 24(1) does not
apply if ‘(a) the situation of distress is due, either alone or in combination
with other factors, to the conduct of the State invoking it’. The second
proviso is different. It elaborates on the requirement that there be ‘no
other reasonable way’ to save the life at stake by providing that Article
24(1) does not apply if ‘(b) the act in question is likely to create a
comparable or greater peril’. This is an objective test. Although it refers
only to ‘peril’ – rather than specifically to peril to human lives – it
operates on the basis that the overall purpose of Article 24 is to
save human lives. So distress might not preclude the wrongfulness of
an emergency landing by an aircraft carrying explosives or the entry into
port of a damaged nuclear submarine whose radioactivity might
contaminate the area.184

9.2.6 Necessity
Necessity (previously ‘state of necessity’, mirroring the French ‘état de
necessité’185) has been described as ‘a material source or extra-legal
blueprint of all legal defences at the level of primary rules’.186 But if it
is a blueprint, the lines indicating its foundations and boundaries have
often seemed faint. In the nineteenth century, necessity was often prem-
ised on an inherent or fundamental right of states to their self-
preservation that had priority over other states’ subjective rights,
although this theory has since been rejected and does not underlie the
ARSIWA.187 A famous example of its abuse is the German occupation of
neutral Belgium and Luxembourg at the outbreak of the First World
War: the German Chancellor told the Reichstag ‘we are in a state of self-
defence and necessity knows no law’.188 Germany invoked it again in the
Second World War to justify occupying the same two states as well as

183 184
[1935] Ex CR 103, 110–11. ARSIWA Commentary, Art. 24, §10.
185
See Crawford, Second Report, 73.
186
Heathcote, in Crawford, Pellet and Olleson (2010) 491, 496.
187
Draft Articles Commentary, Art. 33, §4; Heathcote (2010), 492–4, 496–7. The ILC treated
necessity as a fact and distinguished it from the ‘fundamental right of State survival’
raised in Legality of the Threat or Use of Nuclear Weapons, ICJ Rep. 1996 p. 226.
188
Chancellor von Bethmann-Hollweg, 4 August 1914, 3 Jahrbuch des Völkerrechts (1916),
728, cited in ARSIWA Commentary, Art. 25, §2 n. 398. See also Heathcote (2010), 492.
306 breach

Denmark, Norway and the Netherlands, as did Italy regarding Greece.

Earlier cases include the annexations of Krakow by Austria (1846), of
Rome by Italy (1870), of Bosnia-Herzegovina by Austria-Hungary (1908)
and of Ethiopia by Italy (1936), and Japan’s occupation of Korea in the
Russo-Japanese War (1904–5).189 Such abuses have led many to doubt
that necessity has any place in international law. The Rainbow Warrior
tribunal described the Draft Article codifying necessity, which it noted
‘allegedly authorizes a State to take unlawful action invoking a state of
necessity’, as being ‘controversial’. It contrasted this with the ‘general
acceptance’ of the principle of distress.190
Yet it is partly because of the danger of abuse that, despite the lack of a
consensus on the existence and scope of necessity, the ARSIWA treat
it not as a political pretext for conduct ‘that knows no law’ but as a
legal principle narrowly defined by cumulative conditions. On first
reading the ILC accepted that opinion was divided, but concluded that
necessity was
too deeply rooted in general legal thinking for silence on the subject to be
considered a sufficient reason for regarding the notion as totally inapplicable
in international law, and, in any case, there would be no justification for
regarding it as totally so. The fact that abuses are feared – abuses which are
avoidable if detailed and carefully worded provisions are adopted – is no reason
to bar the legitimate operation of a ground for precluding the wrongfulness of
conduct by a State in cases in which the utility of this ground is generally
acknowledged.191

Jagota comments: ‘bearing in mind the fact that necessity affects the
essential interest of the State itself, big or small, a properly drafted
limited provision on necessity ensuring against abuse, may be more
useful than no provision on necessity, particularly when the limitations
clearly [protect] jus cogens and the humanitarian interests’.192 To empha-
size how exceptional the conditions for necessity are, Article 25 – unlike
the other circumstances precluding wrongfulness – phrases them in the
negative (that is to say, as restricting rather than authorizing it):193

189
Salmon, in Makarczyk (1984) 235, 241–2; Heathcote (2010), 492.
190
Rainbow Warrior, (1990) 20 RIAA 217, 254. On the disagreement about the existence and
scope of necessity see further: Draft Articles Commentary, Art. 33, §29; Heathcote
(2010), 492–4; Barboza, in Makarczyk (1984) 27; Salmon (1984); Paddeu (2011).
191 192
Draft Articles Commentary, Art. 33, §31. Jagota (1985), 271.
193
The ILC adopted this negative formulation (Draft Articles Commentary, Art. 33, §40)
in order to show, by this formal means also, that the case of invocation of a state
of necessity as a justification must be considered as really constituting an
 circumstances precluding wrongfulness 307

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 obliga-
tion of that State unless the act:
(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 preclud-
ing wrongfulness if:
(a) the international obligation in question excludes the possibility of invok-
ing necessity; or
(b) the State has contributed to the situation of necessity.

Article 25(1)(a) in fact contains three requirements: an ‘essential inter-

est’, a ‘grave and imminent peril’ and that the act be the ‘only means’.
The basis for each of these in state practice will be discussed in turn,
followed by the other conditions.
Like distress and unlike force majeure, necessity involves a choice by a
state to act inconsistently with an international obligation to protect
some other interest. The nature of the obligation does not matter; it
could be customary or conventional.194 What distinguishes it from dis-
tress is the nature of the interest: it is not confined to human life but
must be ‘essential’ – a word whose origin (Greek ousia: being) suggests a
connection to the ‘life’ of the state.195 Threats to the existence of the
state are indeed the most obvious cases. On one view of Russian Indemnity,
Turkey’s plea that its financial circumstances constituted force majeure
would fit more properly into necessity. The tribunal noted: ‘Le Gouverne-
ment Impérial Russe admet expressément . . . que l’obligation pour un
exception – and one even more rarely admissible than is the case with the other
circumstances precluding wrongfulness.
The International Court referred to the negative formulation of the provision in
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 40. It mirrors VCLT, Art. 62 on fundamental
change of circumstances, to which many of the same considerations apply.
194
ARSIWA Commentary, Art. 25, §14. The predecessor of Art. 25 (Draft Art. 33) also
applied regardless of the source of an obligation. But what is now Art. 25(2)(b)
previously stated: ‘if the international obligation with which the act of the State is not
in conformity is laid down by a treaty which, explicitly or implicitly, excludes the
possibility of invoking the state of necessity with respect to that obligation’. That is to
say, it applied only to treaty obligations. But since the ARSIWA proceed on the basis that
non-treaty obligations have similar consequences, this was amended: Crawford, Second
Report, 73.
195
Distress has been referred to as being a specific instance of necessity: see Paddeu (2011).
Other authors have criticized the distinction between the two principles: Salmon (1984).
See also Szurek (2010) 481, 483.
308 breach

État d’exécuter les traités peut fléchir “si l’existence même de l’État vient
à être en danger, si l’observation du devoir international est . . . self
destructive”’.196 This can be taken as a statement that what the ARSIWA
now defines as necessity can apply in principle in such cases (although
Turkey’s plea failed on the facts).197 But they are not the only possible
cases. Sloane suggests that if Article 25 had been applicable in Russian
Indemnity, ‘Turkey’s severe lack of economic health could quite plausibly
have been characterized as an “essential interest”’, even in the absence of
a threat to its existence as a state.198 Indeed on first reading the ILC
found ‘that the cases in which a state of necessity has been invoked in
order to safeguard an interest of the State other than the preservation of
its very existence have ultimately proved more frequent and less contro-
versial’.199 This is partly because the positive law of self-defence already
operates to safeguard the state’s existence.200
The extent to which an interest is ‘essential’ depends on all the cir-
cumstances.201 Necessity has thus been invoked – and accepted as applic-
able in principle, or at least not rejected – to protect not only the
existence of the state but also the environment and the safety of civil-
ians. Environmental cases are among the most prominent. In 1893, the
Russian Minister for Foreign Affairs justified a decree prohibiting sealing
in an area of the high seas, outside its own territory and not subject to
any international regulation, in view of the ‘absolute necessity of imme-
diate provisional measures’.202 The essential interest here was the pro-
tection of the fur seal population from extermination. A similar issue
arose in Fisheries Jurisdiction, although the International Court held that it
lacked jurisdiction: Canada’s Coastal Fisheries Protection Act 1994
declared that the straddling stocks of the Grand Bank were ‘threatened
with extinction’ and enabled it ‘to take urgent action necessary to pre-
vent further destruction of those stocks and to permit their rebuilding’.

196
Russian Indemnity (Russia/Turkey), (1912) 11 RIAA 421, 443. Translation from ARSIWA
Commentary, Art. 25, §7: ‘The Imperial Russian Government expressly admits . . . that
the obligation for a State to execute treaties may be weakened “if the very existence of
the State is endangered, if observation of the international duty is . . . self-destructive”.’
197
Greece likewise sought to rely on its serious financial situation to justify not paying a
debt in Société Commerciale de Belgique, (1939) PCIJ Ser. A/B No. 78, 160. See also Serbian
Loans, (1929) PCIJ Ser. A No. 20; French Company of Venezuela Railroads, (1902) 10 RIAA 285,
353 (referring to force majeure).
198 199
Sloane, (2012) 106 AJIL 447, 461. Draft Articles Commentary, Art. 33, §32.
200 201
Crawford, Second Report, 70. ARSIWA Commentary, Art. 25, §15.
202
Letter to the British Ambassador, 12/24 February 1893, 86 BFSP 220; ILC Ybk 1978/II(1)
105.
 circumstances precluding wrongfulness 309

Its officials subsequently seized a Spanish fishing ship on the high seas
and argued that its conduct was ‘necessary’ to prevent overfishing of
Greenland halibut.203 What might be considered a case of necessity to
protect a different environmental interest occurred in 1967. After a Liber-
ian oil tanker ran aground off the Cornish coast, outside UK territorial
waters, the United Kingdom bombed it to burn off the remaining oil.
Although the United Kingdom did not refer expressly to necessity, it
emphasized the danger that the oil spilt from the ship posed to its coast-
line and that it had decided to bomb the ship only after other remedial
attempts had failed, and other states did not object to its conduct.204
Sloane argues that these cases are inapposite because the states involved
may not have believed either that they were invoking necessity or that it
precluded wrongfulness (a lack of opinio iuris) or may not have had in mind
the exact conditions in Article 25.205 In view of the imprecision of the
terms used at that time to distinguish different justifications and excuses
and of the widespread invocation of necessity by states then and since, this
seems an inappropriately strict view of state practice. A more clearly
progressive development of the law, however – and a notable one, given
the application of necessity in environmental cases – is the extension of
‘essential interest’ beyond the particular interests of the state and its
people to those of the international community as a whole.206
The second requirement in Article 25(1)(a), for a ‘grave and imminent
peril’, is a long-standing one. In 1832, the UK government was advised
that Portugal might well be able to use ‘those means, which may be
absolutely and indispensably necessary to the safety, and even to the very
existence of the State’ but that the ‘extent of the necessity, which will
justify . . . an appropriation of the Property of British Subjects, must
depend upon the circumstances of the particular case, but it must be
imminent and urgent’.207 The Caroline incident of five years later sheds
further light on this requirement of imminence or urgency.208 The

203
Fisheries Jurisdiction (Spain v. Canada), ICJ Rep. 1998 p. 431, 443. See further ARSIWA
Commentary, Art. 25, §12 and n. 419.
204
UK Home Office, ‘Torrey Canyon’, Command Paper No. 3246 (1967), cited in ARSIWA
Commentary, Art. 25, §9. The International Convention Relating to Intervention on the
High Seas in Cases of Oil Pollution Casualties, 29 November 1969, 970 UNTS 211, now
covers such situations.
205
Sloane (2012), 466–9.
206
ARSIWA Commentary, Art. 25, §15; Heathcote (2010), 497.
207
McNair, 2 Opinions 232.
208
This is often cited as a case of self-defence rather than necessity. But though it may have
influenced self-defence, it is anachronous: 1837 was long before UN Charter, Art. 2(4)
310 breach

Caroline was a vessel owned by Americans that was carrying recruits and
military and other materials to insurgents in (British) Canada. British
armed forces entered US territory and destroyed it. The United States
argued that ‘nothing less than a clear and absolute necessity can afford
ground of justification’ for ‘hostile acts within the territory of a Power at
Peace’ and that what the United Kingdom had to demonstrate was ‘a
necessity of self-defence, instant, overwhelming, leaving no choice of
means, and no moment for deliberation’.209 Since the United States
expected an apology, Heathcote doubts whether it can be concluded that
any necessity that did exist had the effect of precluding the wrongfulness
of the United Kingdom’s conduct.210 But such a conclusion accords with
their final exchanges in 1842, in which the United Kingdom’s envoy
accepted the principle asserted by the United States and added:
[I]t is admitted by all writers, by all Jurists, by the occasional practice of all
nations, including your own, that a strong overpowering necessity may arise,
when this great principle [the obligation of respect for the independent territory
of another state] may and must be suspended. It must be so for the shortest
possible period, during the continuance of an admitted over-ruling necessity, and
strictly confined within the narrowest limits imposed by that necessity . . . Agree-
ing therefore on the general principle and on the possible exception to which it is
liable, the only question between us is whether this occurrence came within the
limits fairly to be assigned to such exception . . .211

This answers the criticism that the early cases are inapposite insofar as
they do not clearly embody an opinio iuris that necessity precludes
wrongfulness.
The word ‘imminent’ in Article 25 may not have the same connota-
tions as some of the formulations used by the United States in the
Caroline incident, such as ‘instant’ and ‘leaving . . . no moment for delib-
eration’, might appear to have. In Gabčı́kovo-Nagymaros, the International
Court considered the predecessor of Article 25 in the Draft Articles,
which also used the term ‘imminent’. It said that ‘the mere apprehen-
sion of a possible “peril” could not suffice’ and that ‘“[i]mminence” is
synonymous with “immediacy” or “proximity” and goes far beyond the
concept of “possibility”’. Nonetheless, ‘a “peril” appearing in the long
term might be held to be “imminent” as soon as it is established, at the
relevant point in time, that the realization of that peril, however far off it

prohibited ‘the threat or use of force’ and Art. 51 preserved the ‘inherent right of
individual or collective self-defence’.
209 210 211
McNair, 2 Opinions 222. Heathcote (2010), 493. McNair, 2 Opinions 222–3.
 circumstances precluding wrongfulness 311

might be, is not thereby any less certain and inevitable’.212 As this
implies, a grave and imminent peril must still be objectively established.
The state itself is not the sole judge of whether the conditions for
necessity are met.213 But complete certainty is not required, especially
since the relevant essential interests, such as the conservation of the
environment and the safety of large structures, may be subject to diver-
gent scientific or expert views.214 This is in harmony with the precau-
tionary principle. In order to keep necessity within tight bounds,
however, Article 25 was not amended to reflect this expressly.215
The requirement that an act must be ‘the only means’ for the state to
safeguard an essential interest against such a peril is already visible in
the Caroline incident: the United States suggested that necessity must
leave ‘no choice of means’. Here ‘only’ means ‘only’; it is not enough if
another lawful means is more expensive or less convenient. Nor does it
matter if it requires co-operation with other states or international
organizations. In Fisheries Jurisdiction, for example, Spain might have been
able to establish that Canada could instead have taken conservation
measures through the Northwest Atlantic Fisheries Organization,
although Canada argued that its regulatory measures had previously
been ineffective.216 In his individual opinion in Oscar Chinn, Judge Anzi-
lotti noted that he did not believe that Belgium meant to plead necessity,
merely that the measures in question ‘were taken for grave reasons of
public interest in order to save the colony [the Congo] from the disas-
trous consequences of the collapse in prices’. But:
The situation would have been entirely different if the Belgian Government had
been acting under the law of necessity, since necessity may excuse the non-
observance of international obligations . . . [T]here are certain undisputed facts
which appear inconsistent with a plea of necessity. To begin with, there is the
fact that . . . it chose, from among several possible measures . . . that which it
regarded as the most appropriate in the circumstances. No one can, or does,
dispute that it rested with the Belgian Government to say what were the meas-
ures best adapted to overcome the crisis: provided always that the measures
selected were not inconsistent with its international obligations, for the Govern-
ment’s freedom of choice was indisputably limited by the duty of observing those

212 213
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 42. Ibid., 40.
214
ARSIWA Commentary, Art. 25, §§15–16.
215
An alternative to the eventual Art. 25(1)(a) was considered, that stated: ‘The act was the
only means of safeguarding an essential interest of the State against a grave and
imminent peril, the occurrence of which could not reasonably be excluded on the best
information available’: Crawford, Second Report, 73.
216
Fisheries Jurisdiction (Spain v. Canada), ICJ Rep. 1998 p. 431.
312 breach

obligations. On the other hand, the existence of that freedom is incompatible

with the plea of necessity which, by definition, implies the impossibility of
proceeding by any other method than the one contrary to law.217

Recent cases evidence this requirement. In Libyan Arab Foreign Invest-

ment Company v. Burundi, Burundi had broken off diplomatic relations
with Libya and expelled all its nationals, including the managers of two
companies jointly owned by Burundi and a Libyan shareholder, because
‘all Libyan nationals resident in Burundi in general . . . had been partici-
pating in activities of destabilization putting the peace and general
security of the Republic of Burundi in danger’. The tribunal ‘noted that
the various measures taken by [Burundi] against the rights of [the
Libyan shareholder] do not appear . . . to have been the only means of
safeguarding an essential interest of Burundi against a grave and immi-
nent peril, especially since the two Libyan employees in question do not
appear to have constituted such a peril’.218 In Gabčı́kovo-Nagymaros,
given the work and money already put into the dam project and the
possibility of remedying any problems with it, ‘Hungary had means
available to it, other than the suspension and abandonment of the
works’ of safeguarding its putative essential interest.219 In MV Saiga,
ITLOS referred to the predecessor of Article 25 in the Draft Articles and
held that ‘however essential Guinea’s interest in maximizing its tax
revenue from the sale of gas oil to fishing vessels’ – Guinea having
produced no evidence that its essential interests were in grave and
imminent peril – it could not ‘be suggested that the only means of
safeguarding that interest was to extend its customs laws to parts of the
exclusive economic zone’.220
The requirement in Article 25(1)(b), that a state’s conduct must not
seriously impair an essential interest of another state towards which the
obligation exists or of the international community as a whole, is object-
ive: the state’s own essential interest must outweigh any such interest
based on a reasonable assessment.221 An illustration may be the Wall

217
Oscar Chinn, (1934) PCIJ Ser. A/B No. 63, 65, 112–14.
218
Libyan Arab Foreign Investment Company v. Burundi, (1994) 96 ILR 279, 283, 319.
219
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 42–3.
220
MV Saiga (No. 2) (Saint Vincent and the Grenadines v. Guinea), ITLOS, (1999) 38 ILM 1323,
§135.
221
ARSIWA Commentary, Art. 25, §17–18. In Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 46,
the Court did not consider whether Hungary’s conduct had impaired an essential
interest of Czechoslovakia within the meaning of the Draft Articles, since Hungary
could not make the defence out anyway.
 circumstances precluding wrongfulness 313

Advisory Opinion.222 The International Court found that constructing a

wall in the West Bank was not ‘the only means to safeguard the interests of
Israel against the peril which it has invoked as justification for that con-
struction’ and thus did not consider this further requirement. But arguably
it would have impaired an essential interest of the Palestinian people. In
both cases, it would be significant that the category of erga omnes obligations
overlaps with that of peremptory norms. Heathcote notes that since the
right of Palestinians to self-determination is peremptory, that alone would
have excluded the possibility of necessity anyway under Article 26. Given
this overlap, where it is an essential interest of the international community
as a whole that is impaired, the need for Article 25(1)(b) may be limited.
Whereas the conditions in Article 25(1) concern the balancing of
conflicting interests,223 the two provisos in Article 25(2) are absolute.224
Article 25(2)(b) resembles the provisos to distress and force majeure but is
stronger in that it excludes necessity if a state has merely ‘contributed’
to a situation rather than only where the situation is ‘due to’ it.225 Thus
in Gabčı́kovo-Nagymaros, even if Hungary could have established that
there was a state of necessity (which it could not), it ‘would not have
been permitted to rely upon that state of necessity in order to justify its
failure to comply with its treaty obligations, as it had helped, by act or
omission to bring it about’.226 The tribunal in CMS Gas Transmission v.
Argentina rejected a plea of necessity by Argentina, among other reasons
because although ‘in most crises of this kind the roots extend both ways
and include a number of domestic as well as international dimensions’
the question was ‘whether the contribution to the crisis by Argentina has
or has not been sufficiently substantial’, and ‘government policies and
their shortcomings significantly contributed to the crisis and the emer-
gency and while exogenous factors did fuel additional difficulties they do
not exempt [Argentina] from its responsibility in the matter’.227
222
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep.
2004 p. 136, 194–5.
223
Sloane (2012), in arguing that Art. 25 may not reflect customary international law,
criticizes this ‘choice-of-evils paradigm’ as being inconsistent with the classical
conception of necessity as evidenced by, for example, the UK–Portuguese dispute in 1832.
224 225
Heathcote (2010), 496. ARSIWA Commentary, Art. 25, §19–20.
226
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 46.
227
CMS Gas Transmission v. Argentina, (2005) 14 ICSID Reports 152, 212–13. This decision
later came before the Annulment Committee, which criticized the tribunal for
considering an emergency clause in the bilateral investment treaty (a primary rule
similar to necessity) in the light of the conditions in ARSIWA, Art. 25 and for treating
ARSIWA, Art. 27 (on compensation for material loss: discussed below) as a stipulation
rather than a saving clause. But it held that the tribunal had clearly stated reasons for
314 breach

Reference has already been made to the application in Gabčı́kovo-

Nagymaros of the other conditions imposed on necessity. The Inter-
national Court was able to apply them without problems of the sort that
might be expected from its history of controversy and the often-espoused
fear of abuse. This reinforces their basis in state practice. The Court also
commented expressly that their codification in the Draft Articles (sub-
stantially unchanged in the ARSIWA insofar as they were relevant in that
case) reflects customary international law:
The Court considers, first of all, that the state of necessity is a ground recognized
by customary international law for precluding the wrongfulness of an act not in
conformity with an international obligation. It observes moreover that such
ground for precluding wrongfulness can only be accepted on an exceptional basis.
The International Law Commission was of the same opinion when it explained
that it had opted for a negative form of words in Article 33 of its Draft . . . Thus,
according to the Commission, the state of necessity can only be invoked under
certain strictly defined conditions which must be cumulatively satisfied; and the
State concerned is not the sole judge of whether those conditions have been met.
In the present case, the following basic conditions set forth in Draft Article 33
are relevant: it must have been occasioned by an ‘essential interest’ of the State
which is the author of the act conflicting with one of its international obliga-
tions; that interest must have been threatened by a ‘grave and imminent peril’;
the act being challenged must have been the ‘only means’ of safeguarding that
interest; that act must not have ‘seriously impair[ed] an essential interest’ of the
State towards which the obligation existed; and the State which is the author of
that act must not have ‘contributed to the occurrence of the state of necessity’.
Those conditions reflect customary international law.228

This should alleviate the scepticism expressed in Rainbow Warrior and

elsewhere about whether necessity still has a place in international law.
The International Court acknowledged the principle again in Wall.229
Despite this, some still doubt whether Article 25 reflects custom.230

its conclusions on Art. 25 and that it therefore had no jurisdiction to consider them:
CMS Gas Transmission v. Argentina, (2007) 14 ICSID Reports 251, 273. Argentina has also
pleaded necessity in other cases. In LG&E Energy Corp. et al. v. Argentina, ICSID Case No.
ARB/02/1, Decision on Liability, 3 October 2006, §261, the tribunal apparently did accept
such a plea but simply treated that as supporting its analysis of the emergency clause:
‘the Tribunal considers that [the emergency clause] establishes the state of necessity as a
ground for exclusion from wrongfulness of an act of the State, and therefore, the State
is exempted from liability’. Heathcote (2010), 501, comments that this may indicate
‘that a primary rule of “financial necessity” is emerging’. See also Sloane (2012), 497ff.
228
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 40–1.
229
Wall, ICJ Rep. 2004 p. 136, 194–5.
230
Sloane argues that since ‘[i]t is not clear that ILC members uniformly regarded Article
25 as codification’ the International Court’s reliance on it is an instance of ‘institutional
circularity’: Sloane (2012), 453.
 circumstances precluding wrongfulness 315

There are, of course, other controversies the ARSIWA do not put to rest.
Omitted from the International Court’s summary of the conditions for
necessity in Gabčı́kovo-Nagymaros is any reference to the proviso in Article
25(2)(a): that a particular primary obligation may exclude the possibility
of invoking necessity. This leaves open whether forcible ‘humanitarian’
intervention outside the UN Charter Chapters VII (on collective action
through the Security Council) and VIII (on regional arrangements) may be
lawful. It also leaves open the question of ‘military necessity’, which may
be excluded by some treaties on human rights or international humani-
tarian law.231 But these are questions for the primary rules.232 They
cannot be resolved by the ARSIWA except perhaps insofar as they fall
within the next of its provisions to be discussed, on peremptory norms.

9.3 Further questions

9.3.1 Obligations arising under peremptory norms
As well as the provisos to force majeure, distress and necessity, ARSIWA
Part One, Chapter V includes a general exception for peremptory norms
of general international law. It began life not as an exception but as a
circumstance that itself precluded wrongfulness. Fitzmaurice had com-
mented in 1959, in the course of the ILC’s work on the law of treaties, ‘A
treaty obligation the observance of which is incompatible with a new
231
E.g. the ICCPR, Art. 4(2) and the other non-derogable human rights and intransgressible
norms of international humanitarian law referred to above in discussing self-defence.
The International Court referred to some such provisions in Wall, ICJ Rep. 2004 p. 136,
192–3, although it did not conclude expressly that they would exclude necessity. Other
primary rules may operate not to exclude military necessity but to authorize it and to
govern when it can be invoked. For example, the 1st Protocol to the Geneva
Conventions, Art. 54, provides in part:
2. It is prohibited to attack, destroy, remove or render useless objects
indispensable to the survival of the civilian population. . . whatever the motive.
...
5. In recognition of the vital requirements of any Party to the conflict in the
defence of its national territory against invasion, derogation from the
prohibitions contained in paragraph 2 may be made by a Party to the conflict
within such territory under its own control where required by imperative
military necessity.
Cf. other provisions elsewhere in the Geneva Conventions on ‘imperative military
necessity’.
232
See Dinstein, ‘Military necessity’, (2009) MPEPIL; ARSIWA Commentary, Art. 25, §21
and sources cited; Crawford, Second Report, 70, 72; Heathcote (2010), 498–9; McNair, 3
Opinions 398. There have been similar suggestions that distress might encompass
elementary considerations of humanity: see Szurek (2010) 481, 486–9. But the
extension of distress to cover cases of humanitarian intervention was not supported
during the drafting of the ARSIWA: Crawford, Second Report, 68; ILC Ybk 1999/I, 179.
316 breach

rule or prohibition of international law in the nature of ius cogens will

justify (and require) non-observance of any treaty obligation involving
such incompatibility, subject to [certain conditions].’233 What he had in
mind was evidently not a treaty on its face conflicting with a ius cogens
norm, which is simply invalid,234 but an apparently lawful treaty whose
performance might nonetheless cause or substantially assist in a breach
of one. For example, if a state agreed under an arms treaty to supply
weapons that the recipient state intended to use to commit genocide,
there is no reason why the treaty itself should terminate, but its per-
formance would substantially assist in a breach of the peremptory norm
against genocide.235 Originally what is now Article 26 precluded the
wrongfulness of an act not in conformity with the treaty in such situ-
ations. But the ordinary process of treaty interpretation in accordance
with the VCLT should achieve this result anyway: cases such as the
example just given seem not to have occurred in practice, and if one
were to occur then peremptory norms generate interpretative principles
that are strong enough to resolve any apparent conflict without resort to
the law of state responsibility.236 The Drafting Committee also sought to
avoid suggesting that a breach of a peremptory norm required an act. On
the contrary, such norms usually prohibit acts.237
The result is Article 26: ‘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.’ The norms most commonly accepted as being peremptory are the
right to self-determination and the prohibitions of aggression, geno-
cide, systematic racial discrimination, crimes against humanity and
torture. The importance of spelling the principle out, bearing in mind
the gravity of these matters, is evidenced by Bosnian Genocide, where
Bosnia claimed against Serbia (at that time the Federal Republic of
Yugoslavia) and Serbia then counterclaimed against Bosnia, both for

233 234
Fitzmaurice, Fourth Report, ILC Ybk 1959/II, 46. VCLT, Arts. 53, 64.
235
See further Crawford, Second Report, 76–7. See also Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, Provisional Measures, ICJ Rep. 1993
p. 325, 439–41 (Judge ad hoc Lauterpacht), discussing the possible consequences of a
Security Council resolution prohibiting the supply of arms to parties to the Yugoslav
wars if, by limiting Bosnia–Herzegovina’s supply of arms and thereby its ability to fight
back, it were seen as having called on UN members, ‘albeit unknowingly and assuredly
unwillingly, to become in some degree supporters of the genocidal activity of the Serbs
and in this manner and to that extent to act contrary to a rule of jus cogens’.
236 237
ARSIWA Commentary, Art. 26, §3. ILC Ybk 2001/I.
 circumstances precluding wrongfulness 317

genocide. The International Court affirmed: ‘in no case could one

breach of the [Genocide] Convention serve as an excuse for another’.238
Article 26 applies to all six circumstances and to all peremptory
norms. But its effect on consent, in particular, may vary depending on
the norm. One state cannot dispense another from an obligation under a
peremptory norm. It follows that a state cannot consent in advance to
what would otherwise be a breach of an obligation such as the prohib-
ition of torture or genocide: that would be just as inconsistent with the
peremptory character of the norm as dispensing with the obligation
itself.239 But what about, say, the prohibition on the use of force under
UN Charter Article 2(4) (assuming it constitutes a peremptory norm240)?
Simma noted, at a time when a proviso to a similar effect to what is now
Article 26 was attached to the consent provision, that ‘everyone recog-
nized that, if a State consented to the military forces of another State
marching into its territory, such “authorization” would constitute a dero-
gation from the provisions of [UN Charter Article 2(4)]’.241 This is plainly
correct. What it demonstrates is that, although a state cannot dispense
with a peremptory obligation itself, some such obligations incorporate an
intrinsic element of consent. In other words: under the applicable pri-
mary rules – including the rules on whether consent is ‘valid’ – there may
be no breach of the peremptory norm in the first place and therefore no
conflict with Article 26.242 This is consistent with the critique (discussed
above) of the presence of consent in Part I, Chapter V.
The role of self-defence under UN Charter Article 2(4) is comparable.
Thouvenin considers a hypothesis that self-defence is itself a peremptory
norm on the basis that it might explain how, as a norm of the same
character, it can operate as an exception to the prohibition on the use of
force.243 But even apart from the reasons he himself gives for rejecting

238
Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Counter-Claims, ICJ reports 1997 p. 243, 258.
239
Cf. ARSIWA Commentary, Art. 45, §4.
240 241
Ben Mansour (2010), 446–7. ILC Ybk 1999/I, 147.
242
ARSIWA Commentary, Art. 26, §6; Crawford, Second Report, 63. On ‘invasion pacts’
and ‘intervention by invitation’ see Roth, Governmental Illegitimacy in International Law
(1999), 185–95. He concludes that it is unclear whether the sovereign equality system
can accommodate treaties ‘allowing for military intervention to compel compliance
with provisions regarding modes of internal governance’ – which he calls ‘treaties of
guarantee’ or ‘invasion pacts’ – but in any event, ‘outside that special context, consent
in advance to armed intervention in internal affairs cannot be deemed legally effective’:
189, 195.
243
Thouvenin (2010), 465–6. This would also mean, in turn, that self-defence could be
limited only by other norms of the same character, presumably the non-derogable
318 breach

this hypothesis, it mistakes the nature of self-defence. Like consent in

this instance, self-defence is not a freestanding norm but an intrinsic
part of the primary obligation in UN Charter Article 2(4).

9.3.2 Compensation for material loss

Article 27(b) provides: ‘The invocation of a circumstance precluding
wrongfulness in accordance with this chapter is without prejudice
to . . . (b) the question of compensation for any material loss caused by
the act in question.’ In other words, it contemplates that sometimes a
state relying on a circumstance to preclude the wrongfulness of an act
may nonetheless be expected to make good any material loss suffered by
a state affected by that act. It operates separately from the machinery of
reparation set in motion under Part II, Chapter II.244 ‘[M]aterial loss’ is
not as wide as the concept of ‘damage’ employed there, which under
Article 31 can also encompass ‘moral’ damage. Nor does ‘compensation’
mean compensation under that chapter.245
Without a provision to this effect, a state might be tempted to use a
circumstance precluding the wrongfulness of its conduct as against
another state to shift the burden of defending its own interests on to
another state. For instance, in Gabčı́kovo-Nagymaros, the dam project was
discontinued for reasons that were not attributable solely to Czechoslo-
vakia (or Slovakia). It would have been unconscionable for Hungary to
seek to shift the whole cost of the discontinuance on to that state.246
Indeed, in noting that necessity could preclude international responsi-
bility for an act but not terminate the obligation itself, the International
Court also observed that ‘Hungary expressly acknowledged that, in any
event, such a state of necessity would not exempt it from its duty to
compensate its partner.’247 Since Hungary did not establish that neces-
sity applied, the Court did not consider the point further. Similarly, if a
leaking ship enters a foreign port in distress and the leakage causes oil
pollution, there is no reason why the state relying on distress should not
pay the actual clean-up costs.

human rights and intransgressible norms of international humanitarian law discussed

above. One of his reasons for rejecting the hypothesis is that although he considers that
as a right self-defence could at least potentially be peremptory, as a circumstance
precluding wrongfulness it could not, since it does not entail the termination of
conflicting norms.
244
ARSIWA Commentary, Art. 27, §§4–6. See Chapter 15.
245
Japan suggested using a different term: ILC Ybk 1999/II(1), 107.
246
Crawford, Second Report, 84.
247
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 39; see also 81.
 circumstances precluding wrongfulness 319

So much is clear in cases of distress and necessity: they are choices

voluntarily made by a state that may cause material loss to another
innocent state. But whether there are any other circumstances preclud-
ing wrongfulness where a state must still make good any material loss is
not clear. On second reading, states disagreed. Austria suggested that
what is now Article 27(b) be limited to where ‘international law provides
a legal ground for compensation’; France, that it ‘envisages no-fault
liability’ and should be deleted; and Germany, seemingly, that it be
limited to necessity.248 The United Kingdom welcomed it insofar as it
applied to distress and necessity on the ground that ‘where a State has
chosen to take action for its own benefit, there is no reason in principle
why that State, rather than the State against which the action was taken,
should not bear the cost of doing so’ and identified unjust enrichment as
a ‘conceptual framework’.249 One reason to treat distress or necessity
differently, as the United Kingdom implied, might be that they are mere
‘excuses’ rather than ‘justifications’. Self-defence and countermeasures
(on this view justifications, clearly rendering conduct lawful) both
depend on a prior wrongful act by the state targeted, and there is no
reason to compensate that state for the results of its own wrongful act.
Consent (also seen as a justification) appears to differ in that the consent-
ing state might consent only on the basis of compensation, but that is a
matter for agreement rather than for state responsibility. So on this view
only force majeure, distress and necessity seem to leave open compen-
sation for material loss.
Yet even then it is doubtful that force majeure (arguably also an excuse
in that it does not clearly render conduct lawful; it just compels it) can
give rise to an obligation to compensate. By definition, a state relying
on force majeure has not contributed to the situation and so, unlike in
Gabčı́kovo-Nagymaros, is no more responsible for any material loss than
the state suffering it. So it is not a simple matter of distinguishing justi-
fications from excuses.250 Conversely, the Drafting Committee queried
whether there could ‘also be cases of innocent third states which
incurred damage arising out of self-defence or countermeasures’ – as
distinct from ‘the wrongdoing State which had committed the original
wrongful act and for which no compensation was conceivable’.251 The
result is that Article 27(b) is framed in general terms. This indicates that

248 249
ILC Ybk 1998/II(1), 135–6. Ibid., 136; Crawford, Second Report, 84.
250
See further Crawford, Second Report, 85.
251
ILC Ybk 1999/I, 174 (Economides). See further 174–6.
320 breach

it may apply to such third states, at least where they are beneficiaries
of the obligation, and acknowledges that courts are usually
empowered to adjust the financial consequences of situations in which
wrongfulness is precluded.252 The commentary states that it is for the
states involved to agree on ‘the possibility and extent of compensation
payable’.253

9.3.3 The burden of proof

It was not necessary for Part I, Chapter V to deal expressly with the
burden of proof. Whereas in a bilateral dispute the burden of establishing
state responsibility lies on the claimant state, if an act that does not
conform to an international obligation is attributable to a state and that
state seeks to rely on a circumstance precluding wrongfulness,254 the
burden shifts to that state. This makes practical sense in that it is often
only that state that is cognizant of the facts justifying the act.255 The
WTO Appellate Body has elaborated on this general principle, inter alia,
in EC – Tariff Preferences:
In cases where one provision permits, in certain circumstances, behaviour that
would otherwise be inconsistent with an obligation in another provision, and
one of the two provisions refers to the other provision, the Appellate Body has
found that the complaining party bears the burden of establishing that a
challenged measure is inconsistent with the provision permitting particular
behaviour only where one of the provisions suggests that the obligation is not
applicable to the said measure. Otherwise, the permissive provision has been
characterized as an exception, or defence, and the onus of invoking it and
proving the consistency of the measure with its requirements has been placed
on the responding party. However, this distinction may not always be evident or
readily applicable.256

One complication is that not every international dispute is a straight-

forward contest between claimant and respondent.257 If it is submitted

252 253
Ibid., 176 (Crawford). ARSIWA Commentary, Art. 27, §6.
254
On whether a specialized court may be unable to consider a circumstance precluding
wrongfulness because the argument is based on a rule outside its domain of
competence, see Brownlie’s Principles, 565.
255
ARSIWA Commentary, Pt I, Ch. V, §8.
256
EC – Tariff Preferences, 7 April 2004, WT/DS246/AB/R, §88. Further: Brownlie’s Principles,
564 n. 139.
257
See Lauterpacht, The Development of International Law by the International Court (1958),
362–7, expressing doubt that Fisheries (UK v. Norway), ICJ Rep. 1951 p. 143, is based ‘on a
technical rule of evidence in the shape of a rigid apportionment of the burden of proof’.
 circumstances precluding wrongfulness 321

though a compromis, both states may make affirmative claims. And

some circumstances precluding wrongfulness may either be treated as
matters of admissibility or reserved to the merits. But the general rule is
that the party asserting a proposition must prove it: actori incumbit
probatio.258

258
Brownlie’s Principles, 564.
Part IV
Collective or ancillary responsibility
10 Responsibility in cases of joint or
collective conduct

10.1 Introduction
States rarely operate in isolation. There are many situations where they
choose to act together to achieve a mutually beneficial outcome, and as many
forms which such joint or collective conduct may take. In some cases this
collaborative conduct may result in an internationally wrongful act – indeed,
that may be its purpose.1 This raises questions about individual states’
responsibility for any injury to third states caused by the joint or collective
conduct: what difference does it make to the responsibility of one state, if
one or more other states are also responsible for the very same conduct?2
Given how common interstate co-operation is, it is perhaps surprising that
the law of responsibility in this area remains relatively undeveloped.3
The question of a plurality of responsible states is separate from the
issue of violations of multilateral obligations,4 nor are we presently
concerned with a plurality of injured states5 or the separate responsi-
bility of international organizations.6

1
At least nine different possibilities can be identified in which the combined actions of
more than one state might result in wrongful conduct: joint conduct; action via a
common organ; agency; independently wrongful conduct involving another state;
voluntary assistance in the commission of a wrongful act; incitement of wrongful
conduct; direction, compulsion or coercion; assistance given after the wrongful act; and
conduct of several states separately causing aspects of the same harm or injury. See
Crawford, Second Report, 45.
2
Crawford, Third Report, 72.
3
Nolte and Aust, (2009) 58 ICLQ 1, 2. For an explanation of some of the reasons behind the
lack of judicial and arbitral decisions involving multiple state responsibility see e.g. Noyes
and Smith, (1988) 13 Yale JIL 225, 231–8; Besson, (2007) 17 RSDIE 13, 15, 17–19.
4
Ibid., 16–17.
5
See ARSIWA, Art. 46; ARSIWA Commentary, Art. 46. See also Chapter 20.
6
See e.g. Hirsch, The Responsibility of International Organizations towards Third Parties (1995);
Klein, La Responsabilité des organizations internationales (1998); David, Droit des organizations

325
326 collective or ancillary responsibility

10.1.1 Historical background: the work of the ILC and the Institut
Historically there has been relatively little interest in the consequences
and effects of joint state conduct under the law of international responsi-
bility. Early studies of joint responsibility tended to focus on situations in
which a state might be held responsible in connection with acts of
individuals or private persons, rather than another state.7 The notion
of states acting together is by no means new8 – and in modern times the
entire multilateral system for collective peace and security is based on
the expressions of solidarity underpinning the UN Charter.9 But there is
a noticeable lack of judicial and arbitral authorities concerning wrongful
acts arising from such co-operation. It is rare for cases to be brought
against multiple respondents, particularly in areas where dispute reso-
lution most frequently raises questions of state responsibility (e.g. treat-
ment of aliens, treaty violations or damage to property by armed
forces).10 This is due in part at least to the frequent jurisdictional or
procedural obstacles to bringing a claim against multiple states, whether
in national or international forums.11
In one or two cases states have chosen to deal expressly by treaty with
responsibility for joint conduct. The leading example is the Convention
on Liability for Damage Caused by Space Objects, which specifies a
regime of joint and several liability where a third state suffers damage
caused by a collision between two space objects launched by two
states (Article IV) or by a space object jointly launched by two states
(Article V).12 However, instruments directly addressing the situation are
unusual.
The text of ARSIWA as adopted on first reading did not address
responsibility for wrongful acts co-authored by more than one state.
Instead, the ILC originally confined itself to questions of the implication
of one state in the wrongful conduct of another, although in that context
Special Rapporteur Ago did acknowledge in 1978:
[I]t is also possible to think of cases in which, on one and the same specific occasion,
several States have been found to have engaged in conduct not in conformity with

internationales (6th edn, 2005); Amerasinghe (2005); Klein, in Crawford, Pellet and Olleson
(2010) 297.
7
See e.g. Brierly, (1928) 9 BYIL 42.
8
See discussion in Wellens, in Wolfrum and Kojima (eds.), Solidarity: A Structural Principle of
International Law (2010) 3, 5–6.
9 10
Ibid., 28. Noyes and Smith (1988), 232.
11
Ibid., 232–6; see further ibid., 236–8; Besson (2007), 15, 17–9.
12
29 March 1972, 961 UNTS 187. See further Crawford, Third Report, 74.
 cases of joint or collective conduct 327

an international obligation. There, too, however, there is no question of partici-

pation by one of those States in an internationally wrongful act by another.13

This observation was mirrored in the commentary to Draft Article 27

adopted on first reading, which referred to the ‘parallel attribution of a single
course of conduct to several States’ with the result, if that conduct was not in
conformity with their obligations, that ‘two or more States will concurrently
have committed separate, although identical, internationally wrongful
acts’.14 Ago’s Seventh Report also referred to ‘identical offences commit-
ted in concert’,15 but only for the purposes of delimiting what he intended
the Draft Articles to cover (cases of one state’s participation in the wrong-
ful act of another) and what was not to be covered (cases of joint conduct).
Beyond this, the latter issue received little formal attention in the ILC
until 1999, when a number of governments supported the inclusion of
provisions dealing with a plurality of states, others noted the scarcity of
international law on the subject, and some suggested that the matter
could be adequately covered in the commentaries.16 In 2000 it was
possible for the Special Rapporteur to affirm that the position at general
international law was clear and relatively straightforward: in the
absence of agreement to the contrary, multiple states committing the
same wrongful act would each incur responsibility for their own con-
duct, independently of any other state.17 This principle was implicit in
the Draft Articles, but it was made explicit through the inclusion of
Article 47 in the final version adopted in 2001:18
Plurality of responsible States
1. Where several States are responsible for the same internationally
wrongful act, the responsibility of each State may be invoked in relation
to that act.
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.19

13 14 15
ILC Ybk 1978/II(1), 53. ILC Ybk 1978/II(2), 99. ILC Ybk 1978/II(1), 54.
16
See Topical summary of the discussion held in the Sixth Committee of the General
Assembly during its fifty-fourth session prepared by the Secretariat, UN Doc. A/CN.4/504,
8; Crawford, Third Report, 72.
17
Ibid., 72–4, 75, discussing Corfu Channel (UK v. Albania), ICJ Rep. 1949 p. 4, and Certain
Phosphate Lands in Nauru (Nauru v. Australia), ICJ Rep. 1992 p. 240.
18
For the proposed provisions in their original form see Crawford, Third Report, 76–7.
19
See generally ARSIWA Commentary, Art. 47.
328 collective or ancillary responsibility

The implication of one state in the wrongful act of another, a form of

collective responsibility, received significantly more attention during the
earlier stages of the ILC drafting process, giving rise to Part I, Chapter IV.
In his Seventh Report, Special Rapporteur Ago drew a distinction
between cases where one state participates in the wrongful act of
another state, and cases of ‘indirect responsibility’ based on the relation-
ship between a state which directs or compels a wrongful act and the
state which performs it.20 The first case was articulated in what
became Draft Article 27 adopted on first reading,21 the second in Draft
Article 28.22 The justification for making this distinction among various
other conceptual divisions that could be envisaged was not clearly
explained in the Draft Articles or the commentaries.23 Although many
elements of the substance of Draft Part I, Chapter IV were retained, the
text was revised and clarified, and ultimately took shape in four separate
provisions in the final version of ARSIWA adopted in 2001: Articles
16–18 on aid or assistance, control or direction, and coercion respect-
ively, and Article 19 confirming that the preceding articles are without
prejudice to the responsibility of the state which commits the act in
question, or any other.24
Besides the work of the ILC, the Institut de Droit International has also
made an important contribution in the area of joint or collective state
responsibility. Foremost among these was the 1995 resolution on ‘The
Legal Consequences for Member States of the Non-fulfilment by Inter-
national Organizations of their Obligations toward Third Parties’, based
on the work of Special Rapporteur Rosalyn Higgins, which addresses
state responsibility in connection with conduct carried out in the frame-
work of an international organization.25

10.1.2 The influence of private law analogies

In discussing responsibility for the joint and collective conduct of states
there is a temptation to borrow terminology commonly employed in
municipal private law systems – terms like ‘joint and several liability’
or ‘solidary’ responsibility, or ‘complicity’. Indeed, the principles

20 21
Ago, Seventh Report, ILC Ybk 1978/II(1), 52–3. ILC Ybk 1978/II(2), 99–105.
22
Ago, Eighth Report, ILC Ybk 1979/II(1), 4–27.
23
See Crawford, Second Report, 45.
24
For detailed analysis of the draft provisions, the reasons for their revision, and the
proposed Draft Articles, Arts. 27, 28 and 28bis which eventually became ARSIWA, Arts.
16–19, see ibid., 47–55.
25
IDI Res. 1995/II (Lisbon). See further Higgins, (1995) 66/I Ann. de l’Inst. 251.
 cases of joint or collective conduct 329

underlying these concepts as a matter of domestic law can provide useful

guidance for international law.26 Given the relative underdevelopment
of this field of responsibility in international law, analogies to estab-
lished principles of private law can influence the concept of joint and
collective responsibility at the international level without threatening
established norms.27 In Oil Platforms Judge Simma described the difficulty
of establishing the responsibility of multiple tortfeasors as ‘a textbook
situation calling for such an exercise in legal analogy’,28 and Judge
Shahabuddeen also contemplated domestic analogies in his opinion in
Certain Phosphate Lands in Nauru.29
However, more than usual care must be taken when adopting the
terminology of private law. Despite some remarkable commonalities in
content,30 concepts have developed differently under different legal
traditions, and their meaning cannot be assumed to be uniform.31 Cer-
tain terms may carry misleading connotations when imported into
international law. For example ‘complicity’ is a notion frequently associ-
ated with criminal law in national legal systems, which risks confusion
when it is used as a cognate for the neutral concept of ‘aid and assist-
ance’ in the law of state responsibility.32
26
Noyes and Smith (1988), 249–51, citing Cheng, General Principles of Law as Applied by
International Courts and Tribunals (1953, repr. 1993), 24, and de Visscher, Theory and Reality
in Public International Law (trans. Corbett, rev. edn, 1968; ), 400 in support (among others).
See further Crawford, Third Report, 75, on the existence of special rules of responsibility
where two persons embark on a ‘common adventure’ causing loss to a third.
27
Noyes and Smith (1988), 250–1.
28
Oil Platforms (Iran v. US), ICJ Rep. 2003 p. 161, 354 (Judge Simma).
29
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 285 (Judge Shahabuddeen). For the
opposite view, asserting that the principles developed in domestic systems have scant
application before the International Court because of the fundamentally different bases
for jurisdiction, see ibid., 329–30 (Judge Schwebel, diss.).
30
For example, the general rule that where multiple tortfeasors have caused damage, the
victim can hold each of them responsible for the whole of the damage even if it is
impossible to ascertain exactly who did what; see Weir, in Tunc (1983), 12–14, 43–4;
Noyes and Smith (1988), 251–4. For an earlier study see Williams, Joint Obligations (1949).
More recently, Judge Simma has also noted the ‘striking’ consistency in treatment of this
problem across different national systems: see Oil Platforms, ICJ Rep. 2003 p. 161, 354–7
(Judge Simma).
31
Crawford, Second Report, 45–6; Crawford, Third Report, 504 n. 72, 74–5. See also
ARSIWA Commentary, Art. 47, §3; Aust, Complicity and the Law of State Responsibility
(2011), 193–4.
32
Aust (2011), 9–10, 193. The word ‘complicity’ was in common use during earlier stages
of the drafting of ARSIWA. Special Rapporteur Ago, in his Seventh Report, separated
‘participation, in the form of aid or assistance – in short, of complicity’ from
participation in the act itself, observed that the notion of complicity was by then well
established in international law, and proposed a Draft Art. 25 entitled ‘Complicity of a
330 collective or ancillary responsibility

There is little support outside the scholarly literature for the use of
private law terminology in the international law of responsibility.33 Some
treaties do specifically use such terms, such as the Genocide Convention
(‘complicity’)34 and the Convention on Liability for Damage Caused by
Space Objects (‘joint and several’),35 but these are the exception rather than
the rule. In Bosnian Genocide, the International Court observed that no
notion of ‘complicity’ as such exists in the current international law of
state responsibility, but it saw no reason to distinguish in substance
between the notion of ‘complicity in genocide’ in Article III(e) of the Con-
vention and the provision of ‘aid or assistance’ in the commission of
genocide in terms of ARSIWA, Article 16. It chose to apply the latter in order
to ascertain whether the respondent was responsible for the former.36
Judicial recognition of a notion of ‘joint and several liability’ as part of
general international law is likewise limited. In Certain Phosphate Lands in
Nauru, Judge Shahabuddeen described the responsibility of the three
states charged with administering Nauru as joint and several, such that
Australia could be sued alone.37 In articulating his view of the normal
rule he referred inter alia to the dissenting opinion of Judge Azevedo in
Corfu Channel.38 For the majority in the Nauru case, however, the question
of whether the liability of the three states was ‘joint and several’ in terms
of responsibility for reparation and the question of whether Australia
could be sued alone were two separate issues. The Court did not use the
domestic law language in engaging with Australia’s argument and con-
cluded that there was nothing to prevent consideration of Nauru’s claim
against Australia for breach of its obligations under the Trusteeship
Agreement.39 Judge Schwebel, dissenting, likewise found domestic

State in the internationally wrongful act of another State’: see ILC Ybk 1978/II(1), 31, 60.
However, in formulating their Draft Art. 27 from Ago’s Draft Art. 25, the Drafting
Committee rejected the word ‘complicity’ as a potential source of ambiguity or
misinterpretation: see ILC Ybk 1978/I, 279. The final incarnation of what began as Ago’s
Draft Art. 25 refers instead to ‘aid or assistance’ (ARSIWA, Art. 16).
33
See generally Aust (2011), 290–2 (on joint and several liability).
34
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December
1948, 78 UNTS 277, Art. III(e). Admittedly here the word is used in a criminal context.
35
Arts. IV, V. See further Crawford, Third Report, 74; ARSIWA Commentary, Art. 47, §5.
36
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 217.
37
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 283–6 (Judge Shahabuddeen).
38
Corfu Channel, ICJ Rep. 1949 p. 4, 92 (Judge Azevedo, diss.).
39
ICJ Rep. 1992 p. 240, 258–9. The decision on jurisdiction did not settle the question of
reparation: ibid., 262. The dispute was ultimately resolved by agreement: see Order of 13
September 1993, ICJ Rep. 1993 p. 322 and the Settlement Agreement, 10 August 1993,
1770 UNTS 379.
 cases of joint or collective conduct 331

analogies and Corfu Channel to be of little use, and he, too, refrained from
using municipal terminology in his judgment.40 Judge Ago, also in dis-
sent and without using the language of ‘joint and several’ liability,
commented that if the Court were ultimately to find that Australia
should shoulder the full burden of any reparation it would be on an
‘extremely questionable basis’.41
For his part, Judge Simma would have had no trouble ‘elevating the
joint-and-several liability doctrine . . . to the level of international law’ in
Oil Platforms to get around the indivisibility of damage caused by both
Iran and Iraq during the war.42 He concluded that there was support for
treating the doctrine as a general principle of law in terms of Article
38(1)(c) of the Statute of the International Court of Justice.43 He went on
to identify ARSIWA Article 47(1) as ‘another authoritative source’ that
was in conformity with his conclusions on the applicability of joint and
several liability.44
None of this shows that the doctrine of joint and several liability is
already established under that name at the international level, and the
reticence of other judges suggests that a cautious approach is appropri-
ate. The commentary to Article 47(1) confirms that it ‘neither recognizes
a general rule of joint and several responsibility, nor does it exclude the
possibility that two or more States will be responsible for the same
internationally wrongful act’.45 The normal case of responsibility arises
because conduct attributable to a state is a breach of an international
obligation of the state concerned vis-à-vis another state which is also a
party to, or entitled to the benefit of, that obligation. The language of
international law is sufficient; there is no reason or need to express this
basic principle of international law in terms drawn by analogy from
private law concepts.

40
ICJ Rep. 1992 p. 240, 329–43, esp. 329–30 (Judge Schwebel, diss.).
41
Ibid., 328 (Judge Ago, diss.).
42
The result that Iran might have been held responsible for more damage than it
actually caused (as a matter of attribution, quite separate from any question of
reparation, which Judge Simma expressly did not address) was less objectionable to
him than a finding that it was not liable at all. See Oil Platforms, ICJ Rep. 2003 p. 161,
357–8 (Judge Simma).
43
Ibid., 358. Noyes and Smith (1988), 249–50 similarly approached the question of
joint and several liability in terms of its possible interpretation as a general principle
of law.
44 45
ICJ Rep. 2003 p. 161, 358–9 ( Judge Simma). ARSIWA Commentary, Art. 47, §6.
332 collective or ancillary responsibility

The approach of the tribunal in the Eurotunnel arbitration supports this

view.46 It was faced with a concession agreement that expressly provided
for joint and several liability on the part of the concessionaires but was
silent on the responsibility of the governments of France and the United
Kingdom.47 After referring to ARSIWA Article 47(1) and its commentary,
and analysing the provisions of the Agreement, the tribunal did not rule
out the possibility that one state might be responsible for the conduct of
the other either directly or through the Intergovernmental Commission
(IGC), but it is clear that this finding was not based on the notion of joint
and several liability per se:
To summarise, there is no equivalent so far as the Principals are concerned of the
joint and several responsibility and mutual guarantees exacted from the Conces-
sionaires. To the extent that the Claimants’ case depends on the thesis of joint
and several responsibility, i.e., the per se responsibility of one State for the acts of
the other, it must fail. But the Fixed Link required close cooperation between the
two Governments, cooperation to be effected in particular through joint organs
(the IGC and the Safety Committee). The core commitments towards the Conces-
sionaires – in effect, to facilitate the construction and (with specified exceptions)
to permit the uninterrupted operation of the Fixed Link – required the continu-
ing cooperation of both Governments, directly and through the IGC. Whether
particular breaches of the Concession Agreement result from the fault of one or
the other or both States will depend on the particular obligation violated and on
all the circumstances.48
Overall, municipal law analogies can only ever play a subsidiary role in
international law, and they are not among the sources of international
law listed in Article 38(1) of the Court’s Statute.49 It is perhaps a step too
far to say that it is ‘necessary to avoid’50 making analogies with expres-
sions used in private law, as reference to the underlying principles may
serve a useful purpose, and careful use of the terms may not cause any
harm if their meaning is clear. But it must be emphasized that the
wholesale adoption of domestic terminology into international law is
not advisable, is certainly not required and to date has received little
support. What matters at the international level are the actual terms of
any agreement or arrangement, interpreted in the light of the principles
of consent, the independence of states and the pacta tertiis rule.51

46
Eurotunnel Arbitration, (2007) 132 ILR 1, 57–64.
47
For the English text of the key provisions of the agreement at issue in the case see ibid.,
Appendix, 128–35.
48 49
Ibid., 63–64. 26 June 1945, 15 UNCIO 355; see Crawford, Third Report, 74–5.
50
Dominicé, in Crawford, Pellet and Olleson (2010) 281, 282.
51
Crawford, Third Report, 74–5.
 cases of joint or collective conduct 333

10.2 Joint and collective conduct by states

Responsibility for joint and collective state conduct can be engaged in a
variety of ways. As has been indicated above, these can be divided into
two distinct categories,52 although in practice the differences may not be
clear-cut, and various forms of collaborative conduct can coexist in the
same case.53
The first category arises when there is a plurality of responsible states,
each of which has breached its international obligations, whether
together or separately. This category is concerned with the attribution
of internationally wrongful conduct to multiple states, and is governed
by the basic principle of independent responsibility and the normal rules
of attribution.
In the second category, by contrast, responsibility arises because one
state is implicated in the internationally wrongful act of another,
whether through the provision of aid or assistance or by its exercise of
control or coercion over the acting state. Besides the standard rules of
attribution, a set of further specific rules has developed to deal with
responsibility in cases under the second category; these are addressed as
exceptions to the principle of independent responsibility.54
The categories are not necessarily discrete. Depending on the circum-
stances, a situation in which a state is implicated in another’s act may
become a case of joint responsibility under the first category requiring
multiple attribution: for example, the provision of military assistance
may result in co-authorship rather than merely implication if it is shown
that the character of the assistance amounts to participation in the
wrongful act itself.55 Besides these two primary categories there are also
questions about the conduct of joint organs and various other bases for
solidary responsibility.

10.2.1 Attribution to multiple states: the principle of

independent responsibility
The first category of joint or collective responsibility is based on the
commission of an internationally wrongful act by more than one state.
52
Dominicé (2010), 281.
53
See ARSIWA Commentary, Pt I, Ch. IV, §3; Crawford, Second Report, 46, discussing
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240; see further Eurotunnel Arbitration (2007) 132
ILR 1, 57–8. Both cases involved cases of mixed types of joint responsibility.
54
Dominicé (2010), 289. The separate rules are reflected in ARSIWA, Arts. 16–18.
55
Dominicé (2010), 283. Aust describes the British involvement in the Iraq war in 2003 as
one possible example: Aust (2011), 219–21.
334 collective or ancillary responsibility

Within the category of situations requiring attribution of internationally

wrongful conduct to multiple states, there is a further distinction
between situations where a plurality of states collaborate as co-authors
of an internationally wrongful act (what Noyes and Smith call situations
of ‘concerted conduct’) and situations in which a plurality of states
acting independently are responsible for different breaches in respect
of the same injury (‘independent conduct’).56
The starting point for determining responsibility in both cases is the
basic principle that all states are individually and independently respon-
sible for their own conduct,57 being conduct that is attributable to them
according to the rules of attribution in ARSIWA Part One, Chapter II.58
This responsibility is specific to each state.
Examples of concerted conduct could be a joint military attack by a
coalition of states against another state in violation of the prohibition on
the use of force in Article 2(4) of the UN Charter,59 or an interstate
commercial venture causing environmental damage in a third state
through failure of due diligence.60 The fact that several states are

56
Noyes and Smith (1988), 228–31. The authors include aid and assistance as ‘falling
squarely in the category of a distinct breach relating to a single event’ i.e. independent
conduct (at 229), but the act by which aid or assistance is provided may not in itself be a
wrongful act. Where it is not, the better view is to treat the situation of aid or assistance
as an exception to the principle of independent responsibility, falling in the second
separate category (implication in the act of another state). See further Dominicé (2010),
281–4.
57 58
ARSIWA and Commentary, Art. 1. ARSIWA and Commentary, Arts. 4–11.
59
Yugoslavia argued this in its Legality of the Use of Force cases against ten NATO member
states; very few of the respondents attempted to argue that NATO should be held
responsible rather than the member states themselves. See Klein (2010), 302–3 and
references at n. 30; Dominicé (2010), 281–2. Another example might be the invasion
of Iraq by the United States and the United Kingdom in 2003: see Talmon, in Shiner
and Williams (2008) 185; Aust (2011), 219–21. The involvement of other states would
more likely fall within the category of aid or assistance than co-authorship: see e.g.
the arguments of the plaintiff in Edward Horgan v. An Taoiseach, (2003) 132 ILR 407,
429–31, referring to ARSIWA, Art. 16 to support his allegations that Ireland (a
traditionally neutral state and not a member of the ‘coalition of the willing’) had
participated in the unlawful use of force in violation of the Irish Constitution by
allowing US military aircraft to stop over at Irish airbases before the invasion. The
Irish High Court was not willing to rule on the matter. See further Nolte and Aust
(2009), 1.
60
The principle that states should use their best efforts to prevent cross-border pollution
was articulated in the Trail Smelter Arbitration, (1941) 3 RIAA 1938, and has been
reiterated in numerous instruments since: see e.g. Declaration of the United Nations
Conference on the Human Environment (Stockholm Declaration), 16 June 1972, UN Doc.
A/CONF.48/14/Rev.1, Ch. I, Principle 21; GA Res. 2995(XXVII), 15 December 1972, §1 (on
co-operation between states in the field of the environment); International Convention
 cases of joint or collective conduct 335

responsible for the same internationally wrongful act does not diminish
the specific responsibility of each of those states, which may be separ-
ately invoked by those who have suffered injury as a result of that act.
This is reflected in ARSIWA Article 47(1),61 subject to the qualifications
in Article 47(2).62 What is required for each state’s responsibility in cases
of concerted conduct is that its contribution to the joint action is attrib-
utable to it and amounts to an element of the unlawful act. Subsequent
questions of reparation and apportioning each state’s contribution for
purposes of compensation do not affect the principle of responsibility for
the conduct in question.63
As for responsibility arising from independent conduct, the second
subcategory of attribution to multiple states, the classic example is
Albania’s failure to disclose the presence of mines in its waters, central
to the Corfu Channel case.64 Although it could not be established that
Albania had itself laid the mines, and allegations of collusion with the
minelayer were unable to be proved, the fact that Albania knew the
mines were present and failed to warn foreign ships passing through
its waters meant that it was held responsible for all the resulting damage
to British vessels when the mines exploded. The separate wrongful acts
of Albania and the unknown state that laid the mines65 caused the same
injury, and each was independently responsible for it under the normal
rules of attribution. Another example of independent conduct arose in
the Soering case, in which the European Court of Human Rights held that

for the Prevention of Pollution from Ships (MARPOL 73/78), 2 November 1973 / 17
February 1978, 1340 UNTS 184; United Nations Convention on the Law of the Sea, 10
December 1982, 1833 UNTS 3, Art. 194(2); Rio Declaration on Environment and
Development, 14 June 1992, UN Doc. A/CONF.151/26, Vol. I, Principle 2; Draft Articles on
Prevention of Transboundary Harm from Hazardous Activities (with commentaries), ILC
Ybk 2001/II(2), 146; Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm Arising out of Hazardous Activities, Report of the ILC, 58th
Session, UN Doc. A/61/10, 106. On responsibility in the area of international
environmental law generally, see Nègre, in Crawford, Pellet and Olleson (2010) 803.
61
See also Crawford, Third Report, 75; ARSIWA Commentary, Pt I, Ch. IV, §§2–3 and
Art. 47.
62
‘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.’ See ARSIWA Commentary, Art. 47, §§9–10.
63
See Crawford, ‘State responsibility’, (2006) MPEPIL.
64
Corfu Channel, ICJ Rep. 1949 p. 4.
65
The UK alleged that Yugoslavia had laid the mines, but this was not proved and
Yugoslavia was not involved in the proceedings before the International Court. Counsel
for Albania suggested that the Greek government might be responsible for laying the
mines but the Court dismissed this as conjecture. See ibid., 16–17.
336 collective or ancillary responsibility

a state party to the European Convention would be responsible for

violating Article 3 of the Convention if it extradited a person to a non-
party state where the person was likely to suffer inhuman or degrading
treatment or punishment.66 The extraditing state was not responsible for
directly inflicting such treatment, but through extradition it violated
its own obligation under Article 3, which provides that no one shall
be subjected to torture or to inhuman or degrading treatment or
punishment.
Although on its terms Article 47(1) is limited to situations in which
several states are responsible for the same internationally wrongful act,
not independent wrongful acts, the same principle of independent
responsibility applies in cases like Corfu Channel or Soering. The responsi-
bility of each state is assessed on its own conduct in the light of its own
obligations – the usual rules of attribution apply and the responsibility of
one state is not diminished by the responsibility of another state or states
for the same damage.67

10.2.2 Implication in the act of another state: exceptions to

the principle of independent responsibility
According to the ILC:
It is self-evident that the parallel commission of identical offences by two or more
States is altogether different from participation by one of those states in an
internationally wrongful act committed by the other.68

Thus a second category of collective conduct arises when state

A participates in the internationally wrongful act of another, state B. In
such cases it is state B which has committed the wrongful act, and state
A’s responsibility is derived from that of state B on account of its
contribution to the commission of the act, even though its own conduct
taken independently may not actually amount to a breach of its inter-
national obligations.
The exceptions to the principle of independent responsibility are set
out in Part I, Chapter IV of ARSIWA.69 Articles 16, 17 and 18 define the
‘exceptional cases where it is appropriate that one State should assume
responsibility for the internationally wrongful act of another’.70
66
Soering v. UK, (1989) 98 ILR 270; see further the authorities mentioned in ARSIWA
Commentary, Pt I, Ch. IV, §4, n. 281).
67 68
See further ibid., Art. 47, §8. ILC Ybk 1978/II(2), 99.
69
See generally ARSIWA Commentary, Pt I, Ch. IV; Dominicé (2010), 284–9.
70
ARSIWA Commentary, Pt I, Ch. IV, §5.
 cases of joint or collective conduct 337

According to the commentary, Article 19 makes it clear that Chapter IV

‘is concerned only with situations in which the act which lies at the
origin of the wrong is an act committed by one State and not by the
other’.71 Situations in which both states committed the wrongful act
would be covered by the Chapter II rules of attribution already discussed.
ARSIWA Article 16 addresses situations in which state A provides
aid or assistance to state B in the commission of an internationally
wrongful act:
A State which aids or assists another State in the commission of an internation-
ally wrongful act by the latter is internationally responsible for doing so if:
(a) that State does so with knowledge of the circumstances of the inter-
nationally wrongful act; and
(b) the act would be internationally wrongful if committed by that State.72

An example commonly discussed is the provision of arms by state A to

assist state B in performing an act of aggression against a third state.73
State A’s responsibility is engaged by the separate act of the aid or
assistance, not by the primary wrongful act of aggression for which state
B is responsible – provided that the qualifications of paragraphs (a) and
(b) are satisfied. The version of this provision adopted on first reading,
Draft Article 27, expressly required that the aid or assistance was
rendered ‘for the commission of an internationally wrongful act, carried
out by the latter’ and provided that the aid or assistance was itself
internationally wrongful ‘even if, taken alone, such aid or assistance
would not constitute the breach of an international obligation’.74 On
second reading, the text was clarified by the amendment to ‘knowledge
of the circumstances’ of the wrongful act, which requires an intention to
facilitate the commission of the wrongful act. The potentially broad
scope of the draft provision was narrowed, so that the final version only
captures cases of aiding or assisting where the wrongful act committed
would have been a breach of the assisting state’s own obligations.75 It is
also clear that mere association or general co-operation with a state that

71
ARSIWA Commentary, Art. 19, §4.
72
On the concept of aid or assistance in international law see e.g. Brownlie (1983), 189–92;
Quigley, (1986) 57 BYIL 77; Graefrath, (1996) 29 RBDI 370; Aust (2011).
73
See e.g. Ago, Seventh Report, ILC Ybk 1978/II(1), 59–60; ARSIWA Commentary,
Art. 16, §7.
74
See ILC Ybk 1996/II(2), 61.
75
For the background to these changes see Crawford, Second Report, 47–51.
338 collective or ancillary responsibility

uses unlawful methods does not suffice to trigger responsibility under

the rubric of aid or assistance.76
The International Court has recognized Article 16 as a reflection of
customary international law.77 Aust describes it as a ‘complex provision
which sits between various currents of the development of the inter-
national legal system’; with a reminder that interstate co-operation is
generally a positive thing, he argues for a narrow interpretation.78 Some
have argued that Article 16 is ‘unduly monolithic’, in that it does not
reflect differences of substance and degree – participation is not always a
black and white issue – and there could be scope for the law of state
responsibility in this area to develop along the lines of corporate compli-
city, with distinctions between direct, beneficial and silent complicity.79
Aid or assistance is also mentioned in Article 41(2), which provides in
relevant part that no state shall render aid or assistance in maintaining a
situation created by a serious breach of an obligation arising under a
peremptory norm of international law (Article 40).
Ago viewed complicity (now aid or assistance) as the ‘only real form of
participation in the internationally wrongful act of another state’.80
However, Chapter IV sets out two further situations in which a state
may be implicated in the act of another, both of which entail a closer
relationship between state A and state B. Under Article 17 state A is
responsible because it exercised control and direction over state B for the
commission of the internationally wrongful act. This form of responsi-
bility might arise in circumstances where state B is in a relationship of
dependence with state A.81 The same provisos in Article 16(a) and (b)
apply, such that state A will only be responsible if it directed and
controlled state B with knowledge of the circumstances of the inter-
nationally wrongful act, and the act would be internationally wrongful
if committed by state A. Article 18 provides for responsibility on the part
76
This argument is based on the interpretation of Arts. 1(c) and 21 of the Convention on
Cluster Munitions, 30 May 2008, CCM/77; see Aust (2011), 203–7.
77
Bosnian Genocide, ICJ Rep. 2007 p. 43, 217. For further analysis and confirmation see Aust
(2011), 97–191.
78
Ibid., 4, 192–267.
79
Ibid., 192–3; see further Edward Horgan v. An Taoiseach, (2003) 132 ILR 407, 453 (‘The issue
of “participation” is not a black and white issue. It may well ultimately be, as stated by
the Taoiseach, a matter of “substance and degree”’); Clapham and Jerbi, (2001) 24
Hastings ICLR 339.
80
‘Complicity’ was the term used instead of ‘aid or assistance’ in his Draft Art. 25: see ILC
Ybk 1978/II(1), 31, 60.
81
See Ago, Eighth Report, ILC Ybk 1979/II(1), 5–27; ARSIWA Commentary, Art. 17;
Dominicé (2010), 287–8.
 cases of joint or collective conduct 339

of state A because it coerced state B into committing that wrongful act.

In such cases, state B might be able to invoke force majeure as a circum-
stance precluding wrongfulness (Article 23), but state A’s responsibility
remains.82 Unlike Articles 16 and 17, in the extreme case of coercion
state A will be responsible even if the wrongful act committed by state
B would not have been a breach of state A’s own obligations if it had
directly committed the act itself.83
Articles 16–18 are unusual within ARSIWA in that they do not sit
comfortably within the dichotomy between primary and secondary
rules.84 Articles 16–18 have a special character in that they effectively
specify certain conduct as internationally wrongful. Although there is an
argument that such provisions have no place in the law of state responsi-
bility, their inclusion is justified by the derivative character of the
responsibility in Chapter IV; in domestic systems such rules tend to be
treated as part of the general law of obligations. States naturally have
different obligations within the international system, however, and
derivative responsibility cannot be allowed to undermine the principle
that a treaty does not create either obligations or rights for a third state
without its consent, or the equivalent principles under general inter-
national law.85 For that reason it is only in the extreme case of coercion
that a state could be held responsible in connection with a wrongful act
of another state which would not have been a breach of the first state’s
own obligations had it performed the act itself. The articles require that
the state should be aware of the circumstances of the internationally
wrongful act in question and establish a specific causal link between that
act and the conduct of the assisting, directing or coercing state – this is
without prejudice to the general question of ‘wrongful intent’ in matters
of state responsibility, on which ARSIWA are neutral.86

10.2.3 Conduct of joint organs

States will commonly create joint organs or institutions for specific
co-operative purposes, for example a boundary commission or joint
82
See ARSIWA Commentary, Pt I, Ch. IV, §6; Art. 23.
83
See generally ibid., Art. 18; Dominicé (2010), 288–9.
84
See Aust (2011), 5–6; Combacau and Alland (1985); David (2010).
85
Pacta tertiis nec nocent nec prosunt: see esp. Vienna Convention on the Law of Treaties, 22
May 1969, 1155 UNTS 331, Arts. 34–5. See further Crawford, Second Report, 50–1;
ARSIWA Commentary, Pt I, Ch. IV, §8; Art. 16, §6; Aust (2011), 249–66. Cf.
Orakhelashvili, in Crawford, Pellet and Olleson (2010) 647, 651–3.
86
ARSIWA Commentary, Pt I, Ch. IV, §§7–8. On the subjective element of Art. 16 more
generally, see Aust (2011), 230–49.
340 collective or ancillary responsibility

research facility. When questions of responsibility for the conduct of

such organs arise, a careful distinction must be made between joint
institutions with the status of international organizations under inter-
national law,87 and organs that simply act on behalf of their creator
states with no separate legal personality of their own.88 An example of
the former is the Iran–US Claims Tribunal;89 examples of the latter are
the Administering Authority in Certain Phosphate Lands in Nauru90 and the
Intergovernmental Commission in Eurotunnel.91
The conduct of a joint organ of the latter type is attributable to each of
the states that created it, because it acts on their behalf in exercising
delegated authority (Article 5). Although the organ itself is a single
entity, there is a plurality of responsible states, so the principle of inde-
pendent responsibility will apply.92 The ILC described this as the parallel
attribution of a single course of conduct to several states:
According to the principles on which the articles of chapter II of the draft are
based, the conduct of the common organ cannot be considered otherwise than as
an act of each of the States whose common organ it is. If that conduct is not in
conformity with an international obligation, then two or more States will con-
currently have committed separate, although identical, internationally wrongful
acts.93

Questions of the responsibility of a joint organ arose in Certain Phos-

phate Lands in Nauru. In 1947 a UN trusteeship replaced the former
League of Nations mandate over Nauru, with Australia, New Zealand
and the United Kingdom jointly designated as the Administering Author-
ity for the territory. Nauru sued Australia alone for breaches of obliga-
tions by the Administering Authority. The Court found that
the three Governments mentioned in the Trusteeship Agreement constituted,
in the very terms of that Agreement, ‘the Administering Authority’ for Nauru;
that this Authority did not have an international legal personality distinct from
those of the States thus designated; and that, of those States, Australia played a
very special role established by the Trusteeship Agreement of 1947, by the
Agreements of 1919, 1923 and 1965, and by practice.94

87 88
As to which see DARIO and Commentary. See Higgins (1995), 253–7.
89
See Iran–US Claims Tribunal v. AS, (1985) 94 ILR 321; but cf. Dominicé (2010), 283, for the
inclusion of the tribunal as an example of a joint organ.
90
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240.
91 92
Eurotunnel Arbitration, (2007) 132 ILR 1, 61. See Dominicé (2010), 283.
93
Draft Articles Commentary, Art. 27, §2.
94
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 258.
 cases of joint or collective conduct 341

The Court rejected Australia’s arguments that all three members of

the Authority would need to be sued jointly; it saw no reason why
Australia could not be sued alone. The question whether Australia would
ultimately bear responsibility for all or only part of any reparation
ordered, in the light of the characteristics of the trusteeship arrange-
ment and Australia’s primary role in the administration of the territory,
was left for determination on the merits.95
In Eurotunnel the tribunal found that the Intergovernmental Commis-
sion was a joint organ of the United Kingdom and France, ‘whose deci-
sions required the assent of both Principals. If a breach of the Concession
Agreement resulted from action taken by the IGC both States would be
responsible accordingly.’96 Likewise, the responsibility of both states
would be engaged by the omissions of the organ which acted on their
behalf: ‘What the IGC as a joint organ failed to do, the Principals in
whose name and on whose behalf the IGC acted equally failed to do.’97
A possible example of ‘joint’ inseverable responsibility under inter-
national law was the responsibility of the Four Powers for Germany as a
whole and Berlin prior to 1990. In a series of cases, courts refused to hold
that individual states could be sued alone for conduct arising from the
quadripartite arrangements.98

10.2.4 Other bases for solidary responsibility

Certain further bases for solidary or joint responsibility may be possible.
For example, the fact that an agent acted alone in committing an inter-
nationally wrongful act in execution of a mandate will not absolve the
principal state or states of their own responsibility under the mandate.99
Similarly, if the organ of a state acts on instructions of that state jointly
with another state, pursuant to treaty or otherwise, the responsibility of
both states may arise from any resulting internationally wrongful act –
although this is to be differentiated from situations in which the organ
of one state has been placed at the disposal of another.100 In the latter
scenario the sending organ’s conduct will be attributable to the receiving
state alone, provided that the organ is acting in the exercise of elements
of the governmental authority of the latter state (ARSIWA Article 6).
ARSIWA Article 11 provides that conduct not attributable to a state
under the usual rules of attribution ‘shall nevertheless be considered an
95 96 97
Ibid., 262. Eurotunnel Arbitration, (2007) 132 ILR 1, 61. Ibid., 104–5.
98
See Crawford, Third Report, 74 n. 524, citing Crawford, First Report, 46 n. 300.
99
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 258–9, cited in Dominicé (2010), 283.
100
ARSIWA Commentary, Art. 6, §3.
342 collective or ancillary responsibility

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’.101
The provision is aimed mainly at capturing private conduct,102 but there
is no reason why Article 11 could not cover the adoption by a state of
conduct of another state. The commentary acknowledges this possibility
in the context of state succession, for example, where a successor state
which continues a pre-existing ongoing wrongful act of its predecessor
may be taken to have assumed responsibility for it. Article 11 could also
come into play in certain circumstances if a state provides another state
with assistance after the commission of an internationally wrongful act
by the latter, provided the cumulative criteria of acknowledgement and
adoption are satisfied – although assistance after the fact is generally not
governed by the secondary rules of responsibility, but rather by specific
treaty provisions.103 An exception is the positive obligation of co-
operation in suppressing a serious breach of a peremptory norm, articu-
lated in ARSIWA Article 41(1).104
In some cases responsibility might be engaged by what is effectively a
failure to prevent or mitigate harm caused primarily by another state.
Obligations of prevention may be specified in international instruments,
as well as existing in general international law.105 Obligations to prevent
amount to obligations of result, whether they arise within the frame-
work of responsibility for internationally wrongful acts or within the
context of activities not prohibited by international law.106 ARSIWA
Article 14(3) specifies when the breach of an international obligation
requiring a state to prevent a given event occurs,107 but an earlier Draft
Article 23 dedicated to obligations of prevention did not survive the
second reading.108 It is clear that a breach of an obligation of prevention
will give rise to the breaching state’s responsibility just like any other
breach, as ARSIWA makes no distinction between different types of
101
See ARSIWA Commentary, Art. 11.
102
See e.g. the Ottoman Empire Lighthouses Concession (France/Greece), (1956) 12 RIAA 155, 198;
United States Diplomatic and Consular Staff in Tehran (US v. Iran), ICJ Rep. 1980 p. 3.
103 104
See ARSIWA Commentary, Pt I, Ch. IV, §9. See ibid., Art. 41.
105
See e.g. Genocide Convention, Art. I; ILC Draft Articles on Prevention of Transboundary
Harm from Hazardous Activities (with commentaries), Art. 3, ILC Ybk 2001/II(2), 148,
153–5.
106
See generally Hafner and Buffard (2010). On obligations of result, see further
Economides (2010) and works cited therein.
107
Such a breach occurs ‘when the event occurs and extends over the entire period during
which the event continues and remains not in conformity with that obligation’; see
ARSIWA Commentary, Art. 14.
108
ILC Ybk 1978/I(2), 206–8; Draft Articles Commentary, Art. 23.
 cases of joint or collective conduct 343

obligation;109 the question for present purposes is when such a breach

will entail the collective responsibility of more than one state. An
example is provided in the Corfu Channel case, as Albania was held respon-
sible for failing to warn the UK ships of the presence of mines and thus
failing to prevent the harm that ensued, even without having placed the
mines there itself.110
Among the various possible forms of joint and collective state conduct
considered by the ILC, certain types of ancillary or inchoate conduct
recognized in national legal (particularly criminal) systems did not make
it into ARSIWA as general bases for engaging responsibility, for example
incitement, conspiracy, threats and attempts.111 This is naturally with-
out prejudice to any primary obligations in respect of such matters; for
example Article 2(4) of the UN Charter prohibits the threat of force,112
and Article III(e) of the Genocide Convention requires states to prohibit
incitement to genocide. If states breach their primary obligations in
respect of such matters, responsibility will attach in the usual way; the
point is that these categories of conduct were not deemed necessary for
inclusion in a catalogue of secondary rules under international law.

10.3 Conduct within the framework of international

organizations
An obvious means by which states frequently engage in co-operative
conduct is through the establishment of international organizations, as
distinct from the types of joint organs discussed above. The principles
governing the responsibility of international organizations are set out in
the Draft Articles on the Responsibility of International Organizations
(DARIO) adopted by the ILC on second reading in June 2011.113 An
important distinction must be made between the conduct of inter-
national organizations as such, in the exercise of their separate legal
personality, and conduct performed by states within the framework of or
109
See Economides (2010), 376–81; ARSIWA Commentary, Art. 12, §11.
110
ICJ Rep. 1949 p. 4. For discussion of the case in this context, see Dominicé (2010), 283–4.
111
See Ago, Seventh Report, ILC Ybk 1978/II(1), 54–6; Crawford, Second Report, 48, 55–6.
112
See Stürchler, The Threat of Force in International Law (2007).
113
DARIO and Commentary. For the background see esp. the eight reports of Special
Rapporteur Gaja on the Responsibility of International Organizations: First Report, UN
Doc. A/CN.4/532; Second Report, UN Doc. A/CN.4/541; Third Report, UN Doc. A/CN.4/553;
Fourth Report, UN Doc. A/CN.4/564 and Add.1; Fifth Report, UN Doc. A/CN.4/583 and
Corr.1; Sixth Report, UN Doc. A/CN.4/597; Seventh Report, UN Doc. A/CN.4/610; Eighth
Report, UN Doc. A/CN.4/640.
344 collective or ancillary responsibility

at the instigation of an international organization. The conduct of a state

organ does not lose that quality simply because that conduct happens to
be co-ordinated by an international organization, or is even authorized
by it;114 nor are international organizations to be seen as some sort of
‘super-state’ with powers exceeding those of their members.115 Deter-
mining which entity bears responsibility for wrongful acts will depend
on whether the state’s conduct is to be treated as the organization’s
conduct, applying the relevant rules of attribution in each case,116 or
whether the state or organization is implicated in some relevant way in
the conduct of the other.117
In different circumstances a member state might bear responsibility
for the conduct of an international organization, an international organ-
ization might bear responsibility for the conduct of a state within the
framework of that organization’s operations, or the state or organization
might separately bear responsibility for what is properly to be seen as its
own conduct (whether the primary wrongful act or some form of auxil-
iary conduct connected to that act). There may also be joint responsi-
bility: a state as member of an international organization may be jointly
responsible along with the organization (and other members) for fulfil-
ling obligations under a mixed agreement between the organization and
its member states on the one hand and non-member states on the
other.118 In other cases, if the organization alone is party to an agree-
ment with non-members, member states will not incur responsibility
under that agreement, but they may nonetheless have different duties of
ensuring compliance pursuant to the organization’s governing rules.119

114
Crawford, Third Report, 72. In some cases the authorization may make the conduct
lawful, e.g. under Chapter VII of the UN Charter.
115
See Reparation for Injuries Suffered in the Service of the United Nations, ICJ Rep. 1949 p. 174,
179.
116
See ARSIWA, Pt I, Ch. II, Arts. 4–11; DARIO, Pt I, Ch. II, Arts. 6–9.
117
DARIO, Art. 1(2) provides: ‘The present draft articles also apply to the international
responsibility of a State for an internationally wrongful act in connection with the
conduct of an international organization’; see DARIO, Pt V. For the responsibility of an
international organization in connection with the act of a state or another organization,
see DARIO, Pt II, Ch. IV, Arts. 14–19).
118
See e.g. Case C-316/91, European Parliament v. Council of the European Communities, (1994)
ECR I-625, I-660–661, recital 29, discussed in Gaja, Third Report, UN Doc. A/CN.4/553,
5–6. See further UNCLOS, Annex IX, discussed in Crawford, Third Report, 74; Rosas, in
Koskenniemi (ed.), International Law Aspects of the European Union (1998) 125.
119
Case 12/86, Demirel v. Stadt Schwäbisch Gmünd, (1987) ECR 3719, 3751, recital 11. See
further Gaja, Third Report, UN Doc. A/CN.4/553, 5–6.
 cases of joint or collective conduct 345

The general principles governing responsibility of either states or

international organizations for their own conduct are contained in
ARSIWA and DARIO respectively. Of interest for present purposes are
the cases in which member states bear responsibility for the conduct of
organizations, and those in which responsibility is engaged by the con-
duct of state organs within the framework of an international organiza-
tion. The first situation is particularly relevant for injured parties
seeking to ‘pierce the organizational veil’ and overcome difficulties
caused by the lack of international mechanisms for enforcing the obliga-
tions of international organizations.120 The issue was central to the
litigation in UK courts after the collapse of the International Tin Council
in 1985, for example.121 The Institut de Droit International addressed
member state responsibility in its 1995 resolution entitled ‘The Legal
Consequences for Member States of the Non-fulfilment by International
Organizations of their Obligations toward Third Parties’.122 Under the
heading ‘Current Law’, Article 6 provides that ‘there is no general rule of
international law whereby States members are, due solely to their mem-
bership, liable concurrently or subsidiarily, for the obligations of an
international organization of which they are members’, save as specified
in Article 5, which reads:
a) The question of the liability of the members of an international
organization for its obligations is determined by reference to the Rules
of the organization.
b) In particular circumstances, members of an international organization
may be liable for its obligations in accordance with a relevant general
principle of international law, such as acquiescence or the abuse of rights.
c) In addition, a member State may incur liability to a third party
i) through undertakings by the State; or
ii) if the international organization has acted as the agent of the State,
in law or in fact.

The ILC has also considered the matter. ARSIWA deliberately left a
gap: Article 57 states that the Articles are without prejudice to any
question of the responsibility of an international organization or the
120
See e.g. Ryngaert and Buchanan, (2011) 7 Utrecht LR 131, 132.
121
See JH Rayner v. Department of Trade and Industry, (1989) 81 ILR 670, which cites other
relevant decisions in n. 1. For discussion see e.g. Sadurska and Chinkin (1989–90) 30 Va
JIL 845; Zwanenburg, Accountability under International Humanitarian Law for United Nations
and North Atlantic Treaty Organization Peace Support Operations (2004), 102–3;
Orakhelashvili (2010), 661–3.
122
IDI Res. 1995/II (Lisbon). More generally see Geslin, (2005) 109 RGDIP 539; Ryngaert and
Buchanan (2011).
346 collective or ancillary responsibility

responsibility of any state for the conduct of an international organiza-

tion.123 Instead, DARIO Part V deals with state responsibility in connec-
tion with the conduct of an international organization.124 Articles 58–60
closely mirror ARSIWA Articles 16–18 (aid or assistance, control or
direction, and coercion), adapted to the context of international organ-
izations,125 while Article 61 provides for responsibility on the part of a
state which uses an international organization to circumvent one of its
international obligations, by causing that organization to commit an act
that would have breached its obligation if committed by the state.126
More interesting for present purposes is Article 62(1), which provides
that a state member of an international organization is responsible for
an internationally wrongful act of that organization if it has accepted
responsibility for that act towards the injured party, or it has led the
injured party to rely on its responsibility. The commentary confirms that
a negative rule is implicit in the terms of Article 62.127 In other words, in
line with the IDI’s Article 6, a state is not responsible for the wrongful
acts of an international organization solely by virtue of its membership
of that organization; but if it accepts responsibility towards the injured
party or leads the injured party to rely on its responsibility, then its
responsibility will be engaged. This position has received support in
international case law.128 Under Article 62(2), any international responsi-
bility of a state under paragraph 1 is presumed to be subsidiary, and it
does not affect any responsibility on the part of the organization itself.
The second question, that of responsibility for the conduct of states
within the framework of international organizations, has proved a
murky one in practice. If a state organ is fully seconded to an inter-
national organization and under its exclusive control, then it is clear that
the organ’s conduct is to be treated as conduct of the receiving organiza-
tion only, not of the sending state.129 But difficulties have arisen when
the sending state in fact retains some control over the conduct of its
organs, which continue to act to some extent as organs of that state

123
See ARSIWA Commentary, Art. 57; see further Crawford, Second Report, 47.
124
It does not cover all relevant matters, however; questions concerning the attribution of
the conduct to a state or a situation such as that envisaged in the IDI’s Art. 5(c)(ii) would
still fall to be considered under the rules in ARSIWA. See DARIO Commentary, Pt V, §2;
Art. 62, §1 (esp. n. 349).
125 126 127
Ibid., Arts. 58–60. Ibid., Art. 61. Ibid., Art. 62, §2.
128
See e.g. Arab Organization for Industrialization and ors v. Westland Helicopters Ltd, (1988) 80
ILR 622, 657–61; JH Rayner v. Department of Trade and Industry, (1989) 81 ILR 670 and the
related decisions cited in its n. 1.
129
DARIO Commentary, Art. 7, §1.
 cases of joint or collective conduct 347

while they are in the service of the organization. Judicial approaches in

such circumstances have been mixed, particularly in the context of
human rights claims arising from international military operations. In
its 2005 decision in Bosphorus v. Ireland the Grand Chamber of the Euro-
pean Court of Human Rights held that the European Convention on
Human Rights does not prohibit member states from transferring sover-
eign power to an international organization for co-operative purposes,
but the state remains responsible under Article 1 ECHR for all the acts
and omissions of its organs, regardless of whether they were a conse-
quence of the necessity to comply with international legal obligations.130
In its controversial judgment in the joined cases of Behrami and Saramati
two years later, however, the Court distinguished Bosphorus and applied a
test of ‘ultimate authority and control’ to decide that the conduct in
question was attributable to the UN, not the respondent states, with the
result that the Court had no jurisdiction ratione personae.131
After the NATO bombing campaign in Kosovo ended in 1999, Security
Council Resolution 1244 (1999) determined that the situation in the
region continued to threaten international peace and security, and pro-
vided for the deployment of an international security force (Kosovo
Force – KFOR) and the establishment of an interim civil administration
(UN Interim Administration Mission in Kosovo – UNMIK). Behrami’s case
arose after a group of children came across some unexploded munitions
in March 2000, left over from the NATO air campaign in 1999. Not
realizing the danger, they began playing with them, and one of the
bombs exploded, killing one boy and leaving his brother blind and
permanently disfigured. The boys’ father and the surviving son raised
allegations of violation of the right to life (Article 2 ECHR) against France,
as lead nation of the KFOR multinational brigade in the area, for failing
to clear or mark the undetonated cluster bombs which they knew to be
present in that area.132
As for Saramati’s case, he had been arrested by UNMIK police on
suspicion of attempted murder in April 2001. The Kosovo Supreme Court
ordered his release from pre-trial detention in June 2001, but he was
subsequently detained again as KFOR believed him to be a security threat
to the international presence. KFOR detained him until January 2002,

130
Bosphorus Hava Yollari Turizm ve Ticaret Anonim Širketi v. Ireland, [2006] ECtHR 45036/98,
§§152–3. See further M & Co. v. Germany, [1990] ECommHR 13258/87, discussed in
Zwanenburg (2004), 102–3.
131
Behrami v. France; Saramati v. France, Germany and Norway, (2007) 133 ILR 1.
132
For the facts of Behrami’s case see ibid., 7–8.
348 collective or ancillary responsibility

when he was convicted of attempted murder and transferred to UNMIK

custody, but in October 2002 the Supreme Court quashed his conviction
and ordered his release.133 Mr Saramati alleged that his detention,
authorized by a Norwegian KFOR commander and subsequently upheld
by a French one, had amounted to a violation by those two states of his
right to liberty of the person, protected by Article 5 ECHR; he also
invoked Articles 6 and 13.134
Although the parties and intervenors135 primarily argued the case as a
dispute over extraterritorial application of the ECHR, that is, whether
the applicants fell within the respondent states’ jurisdiction so as to
satisfy the threshold in Article 1, the Court found that the more central
issue was whether it was competent to examine under the Convention
the respondent states’ contribution to UNMIK and KFOR.136 The Court
held that the supervision of de-mining fell within the mandate of UNMIK
at the relevant time (Behrami’s case), and that issuing detention orders
fell within the security mandate of KFOR (Saramati’s case).137 Chapter
VII of the UN Charter provided the framework for the Security Council to
delegate its security powers to KFOR and its civil administration powers
to UNMIK.138 After describing the chain of command for KFOR,139 the
Court found that the Security Council retained ‘ultimate authority and
control and that effective command of the relevant operational matters
was retained by NATO’;140 it held that Saramati’s detention was in
principle attributable to the UN.141 As for UNMIK, it was directly answer-
able to the UN as a subsidiary organ, such that the failure to clear the
unexploded munitions in Behrami’s case was, in principle, also attribut-
able to the UN.142 The Court then concluded that it did not have

133
For the facts of Saramati’s case see ibid., 8–9.
134
Complaints against Germany for its alleged role in his arrest were dropped: ibid., 25–6.
135
Seven states (Denmark, Estonia, Germany, Greece, Poland, Portugal and the United
Kingdom) and the UN participated in the case as third parties; see ibid., 34–40 for their
submissions.
136 137
Ibid., 28. Ibid., 43.
138
Ibid., 44. The notion that the Security Council thereby ‘delegated’ powers is
problematic; a better description would be that its power to create the civil and security
presences in Kosovo was analogous to its power to create the ICTY, which was upheld in
Tadic´, Jurisdiction, (1995) 105 ILR 419: see discussion in Milanovic´ and Papic´ (2009),
276–9.
139 140
Behrami and Saramati, (2007) 133 ILR 1, 46. Ibid., 48.
141
Ibid., 48. The Court used ‘attributable’ in terms of DARIO, Draft Art. 3 (2003;
corresponding to Draft Arts. 3 and 4 of the version adopted on second reading on 3 June
2011: UN Doc. A/66/10, 78–80); see Behrami and Saramati, (2007) 133 ILR 1, 14, 41.
142
Ibid., 48.
 cases of joint or collective conduct 349

competence ratione personae to review the conduct that it had found was
attributable to the UN, which is not party to the ECHR, stating:
Since operations established by UNSC Resolutions under Chapter VII of the UN
Charter are fundamental to the mission of the UN to secure international peace
and security and since they rely for their effectiveness on support from member
States, the Convention cannot be interpreted in a manner which would subject
the acts and omissions of Contracting Parties which are covered by UNSC Reso-
lutions, and occur prior to or in the course of such missions, to the scrutiny of the
Court. To do so would be to interfere with the fulfilment of the UN’s key mission
in this field including, as argued by certain parties, with the effective conduct of
its operations. It would also be tantamount to imposing conditions on the
implementation of a UNSC Resolution which were not provided for in the text
of the Resolution itself.143

Distinguishing its earlier decision in Bosphorus, the Court continued:

In the present cases, the impugned acts and omissions of KFOR and UNMIK
cannot be attributed to the respondent States and, moreover, did not take place
on the territory of those States or by virtue of a decision of their authorities. The
present cases are therefore clearly distinguishable from the Bosphorus case in
terms both of the responsibility of the respondent States under Article 1 and of
the Court’s competence ratione personae.144

There are many aspects of the Court’s approach and conclusions that
are objectionable, and the decision has been much criticized.145 By focus-
ing on the question of attribution the Court circumvented the thorny
issue of extraterritoriality, which had been highly contentious since
Bankovic´146 and was central to the parties’ own theory of the case.147 Still

143 144
Ibid., 50. Ibid., 51.
145
See e.g. Knoll, (2008) 68 ZaöRV 431; Sari (2008); Milanovic´ and Papic´ (2009); Breitegger,
(2009) 11 ICLR 155; Klein, in Crawford, Pellet and Olleson (2010) 297, 303; Bell, (2010) 42
ILP 501.
146
Bankovic´ v. Belgium, (2001) 123 ILR 94. On extraterritoriality see e.g. Coomans and
Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (2004); Dennis, (2005)
99 AJIL 119; Wilde, (2007) 40 Is. LR 503; Milanovic´ (2011). (The Court has since clarified
its position on the extraterritoriality question and the scope of Art. 1 to some degree, in
the July 2011 decisions of Al-Skeini v. UK, [2011] ECtHR 55721/07, and Al-Jedda v. UK,
[2011] ECtHR 27021/08). The applicants in Banković raised arguments relevant to the
attribution of conduct to seventeen NATO member states, but these submissions were
not addressed by the Court because it dismissed the case on the jurisdictional point. On
the responsibility issue see Zwanenburg (2004), 102–3; more generally, ibid., 100–7.
147
In the end, however, the Court dismissed the arguments for extraterritorial application
by the back door when it distinguished Bosphorus, [2006] ECtHR 45036/98, partly on the
grounds that the impugned actions and omissions did not take place on the territory of
the respondent states: see Behrami and Saramati, (2007) 133 ILR 1, 51.
350 collective or ancillary responsibility

more problematic was the approach to the analysis of attribution itself. In

the context of allegations that the respondent states were responsible for
violating the ECHR, it would have been logical for the Court to proceed by
asking whether the alleged actions and inactions were attributable to the
respondent states, and then whether any attributable conduct repre-
sented a violation of those states’ obligations under the ECHR, engaging
their responsibility.148 On the matter of attribution to the UN of conduct
alleged to have been performed by state organs, it might have been
expected that the Court would draw some guidance from DARIO’s stand-
ard of ‘effective control’ in situations where state organs are at the
disposal of an international organization:149
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.150

Instead, the Court did not at any stage directly examine those ques-
tions; nor did it contemplate whether the conduct might be attributable
to both the UN and the respondent states simultaneously. After deciding
which organs held which mandates – a matter that was irrelevant to the
factual question of whether the relevant conduct was attributable to the
respondent states – it purported to ask whether the impugned action/
inaction could be attributed to KFOR/UNMIK, but in fact it answered the
question by making the general observation that actions and omissions
of KFOR/UNMIK were attributable to the UN. In effect the Court con-
verted the applicants’ allegations against the respondent states for fail-
ures under the ECHR into allegations against the UN for failures under
SC Resolution 1244, and as the UN is not a party to ECHR, it found
unsurprisingly that it had no competence to hear the applications. As
to examining the respondent states’ contribution to UNMIK and KFOR,

148
As Milanovic´ and Papic´ (2009), 273 have observed, this would be the analysis suggested
by ARSIWA, Art. 2.
149
The Court referred to what was then Draft Art. 5 (now Draft Art. 7) in its judgment, at
§§30–1 and 138, but did not make it clear whether it thought the rule was actually
applicable or whether it considered that the UN had met the criterion of ‘effective
control’ over the conduct of the respondent states. See discussion in Milanovic´ and
Papic´ (2009), 281–6.
150
Cf. the equivalent provision in ARSIWA, Art. 6, which provides that ‘[t]he conduct of an
organ placed at the disposal 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’ (emphasis added).
 cases of joint or collective conduct 351

which the Court itself had stated was the central question in the case, it
turned this on its head with its conclusion that ‘the impugned acts and
omissions of KFOR and UNMIK cannot be attributed to the respondent
States’.
The decision in Behrami and Saramati left a rather confused picture of
state responsibility for conduct performed within the framework of an
international organization. In finding that conduct of KFOR and UNMIK
was attributable to the UN the Court conflated the secondary rules of
attribution with the primary rules of delegation.151 The finding of
‘ultimate authority and control’ as the decisive factor for attributing
the impugned conduct to the UN (despite NATO’s acknowledged ‘effect-
ive command over operational matters’) was at odds with the fact-
oriented test of ‘effective control’ over state organs at the disposal of
international organizations.152 The test of effective control has a long
established pedigree as a principle of international responsibility, sup-
ported by states,153 the ILC154 and the UN alike.155 The judgment had the
potential seriously to undermine accountability for violations of human
rights treaties by state organs acting under the umbrella of an inter-
national organization. There was no acknowledgment or contemplation
of the possibility of attributing the same conduct to multiple persons
(whether states or international organizations) simultaneously, although

151 152
See Milanovic´ and Papic´ (2009), 281. See Klein (2010), 301–4, esp. 303.
153
See Gaja, Second Report, UN Doc. A/CN.4/541, 21–2 (esp. n. 75). On the test of effective
control and attribution of conduct to the UN more generally see ibid., 14–23.
154
See e.g. ibid., 15: ‘Questions concerning attribution of conduct to the United Nations or
a State have sometimes been raised in relation to conduct taken by military forces in the
course of interventions recommended or authorized by the Security Council. In this
type of case, responsibility of the United Nations, if any, could not be premised on
attribution of conduct. It could not be said that authorized forces are placed at the
disposal of the United Nations.’
155
The Secretary-General of the UN has said: ‘In joint operations, international
responsibility for the conduct of the troops lies where operational command and
control is vested according to the arrangements establishing the modalities of
cooperation between the State or States providing the troops and the United Nations. In
the absence of formal arrangements between the United Nations and the State or States
providing troops, responsibility would be determined in each and every case according
to the degree of effective control exercised by either party in the conduct of the
operation.’ See Report of the Secretary-General on financing of United Nations
peacekeeping operations, 20 September 1996, UN Doc. A/51/389, 6. A year after Behrami
and Saramati, (2007) 133 ILR 1, the Secretary-General reiterated this position in his 2008
report on UNMIK: ‘It is understood that the international responsibility of the United
Nations will be limited in the extent of its effective operational control [sic]’; see UN Doc.
S/2008/354, 4.
352 collective or ancillary responsibility

this possibility has been included by the ILC in its DARIO Commentary
since the first reading,156 and is now recognized in Draft Article 48.157
The reaction to Behrami and Saramati was mixed. It was heavily criticized
in the legal literature,158 but the reasoning was applied by the European
Court in subsequent cases159 and by the UK House of Lords in Al-Jedda v.
Secretary of State for Defence.160 Governments expressed different opinions
about whether DARIO should be amended to reflect the ‘ultimate author-
ity and control’ test,161 and the European Commission questioned the
wisdom of codifying the ‘effective control’ test, given the divergence from
that standard in the jurisprudence and the lingering controversy in
international practice.162 Ultimately, the standard of effective control
has been retained. In the 2011 commentary to what is now DARIO Draft
Article 7, the ILC reinforced the factual character of the effective control
test,163 and offered some comments on Behrami and Saramati:

156
In its most recent form see DARIO Commentary, Pt II, Ch. II, §4: ‘Although it may not
frequently occur in practice, dual or even multiple attribution of conduct cannot be
excluded. Thus, attribution of a certain conduct to an international organization does
not imply that the same conduct cannot be attributed to a State; nor does attribution of
conduct to a State rule out attribution of the same conduct to an international
organization. One could also envisage conduct being simultaneously attributed to two
or more international organizations, for instance when they establish a joint organ and
act through that organ [sic].’
157
See ibid., Art. 48. For background see Gaja, Sixth Report, UN Doc. A/CN.4/597, 10–14.
158
See DARIO Commentary, Art. 7, §10, esp. literature cited in n. 115.
159
See Gajic´ v. Germany, Admissibility of App. No. 31446/02, 5 July 2007, ECtHR; Kasumaj v.
Greece, Admissibility of App. No. 6974/05, 28 August 2007, ECtHR; Beric´ v. Bosnia and
Herzegovina, Admissibility of App. No. 36357/04 and ors, 16 October 2007, ECtHR.
160
[2007] UKHL 58 (although the majority ultimately distinguished the circumstances in
that case from Behrami and Saramati, (2007) 133 ILR 1). Lord Brown observed the
difficulty of applying the Behrami and Saramati standard: ‘The precise meaning of the
term “ultimate authority and control” I have found somewhat elusive. But it cannot
automatically vest or remain in the UN every time there is an authorization of UN
powers under Chapter VII, else much of the analysis in Behrami would be mere
surplusage’ (ibid., §148).
161
See e.g. the comments of the United Kingdom (UN Doc. A/C.6/64/SR.16, 5): ‘In the
absence of judicial criticism of the effective control text in those cases, no change to
draft article 6 was required’, but the United Kingdom noted the limitations of effective
control as a universal rule of attribution; cf. the comments of Greece (ibid., 11): ‘it
should be made clear that conduct should be attributed to the international
organization exercising ultimate control and not to the State exercising operational
control, as confirmed by the European Court of Human Rights in the Behrami and
Saramati cases’.
162
Comments and observations received from international organizations, 14 February
2011, UN Doc. A/CN.4/637.
163
DARIO Commentary, Art. 7, §8: ‘As has been held by several scholars . . . when an organ
or agent is placed at the disposal of an international organization, the decisive question
 cases of joint or collective conduct 353

The Court [in Behrami and Saramati] referred to the present work of the Inter-
national Law Commission and in particular to the criterion of ‘effective control’
that had been provisionally adopted by the Commission. While not formulating
any criticism to this criterion, the Court considered that the decisive factor was
whether ‘the United Nations Security Council retained ultimate authority and
control so that operational command only was delegated’ . . .
One may note that, when applying the criterion of effective control, ‘oper-
ational’ control would seem more significant than ‘ultimate’ control, since the
latter hardly implies a role in the act in question.

In July 2011, between the second reading adoption of DARIO and the
adoption of its commentaries, the European Court of Human Rights
released its decision in Al-Jedda v. UK.164 This case gave the Court an
opportunity to clarify the test for attribution when a state’s organs are
placed at the disposal of an international organization. First, the Court
agreed with the majority of the House of Lords in distinguishing the
situation in Kosovo from the military situation in Iraq at issue in Al-
Jedda.165 It then observed that the applicable standard for attributing acts
of the UK forces in Iraq to the UN was ‘effective control’:
[I]t was common ground between the parties before the House of Lords that the
test to be applied in order to establish attribution was that set out by the
International Law Commission, in Article 5 of its draft Articles on the Responsi-
bility of International Organisations and in its commentary thereon, namely that
the conduct of an organ of a State placed at the disposal of an international
organisation should be attributable under international law to that organisation
if the organisation exercises effective control over that conduct . . .166

This direct reference to ‘effective control’ in DARIO as the standard

for attribution was a welcome improvement on the convoluted analysis
of Behrami and Saramati. In an effort to avoid rejecting its previous
approach outright, however, the Court ultimately opted for a hybrid
DARIO/Behrami and Saramati test:
For the reasons set out above, the Court considers that the United Nations
Security Council had neither effective control nor ultimate authority and control over
the acts and omissions of troops within the Multi-National Force and that the
applicant’s detention was not, therefore, attributable to the United Nations.167

in relation to attribution of a given conduct appears to be who has effective control over
the conduct in question.’
164
Al-Jedda v. UK, [2011] ECtHR 27021/08.
165
See ibid., §18, citing Lord Brown’s comment on attribution to the UN.
166 167
Al-Jedda v. UK, [2011] ECtHR 27021/08, §84. Ibid. (emphasis added).
354 collective or ancillary responsibility

So ‘ultimate authority and control’ snuck in through the back door,

without extensive discussion of Behrami and Saramati – and now the
Court seems to be adopting parallel tests. It is unclear whether these
are cumulative or alternative conditions for attribution, or whether the
mention of ‘ultimate authority and control’ was merely an effort to
avoid the appearance of rejecting its own precedent.

10.4 Cognate questions

10.4.1 Guarantees and indemnities
In some situations of collective conduct it is conceivable that states will
agree to indemnify each other for any loss arising from the joint wrong-
ful conduct. For example, Article V(2) of the Convention on Liability for
Damage Caused by Space Objects provides (in relevant part):
A launching State which has paid compensation for damage shall have the right
to present a claim for indemnification to other participants in the joint
launching.168

Such an agreement of guarantee or indemnity must be explicit. In

Eurotunnel the concessionaires argued that the British and French gov-
ernments had mutually guaranteed each other’s performance under the
concession agreement, such that each state was jointly and severally
liable for the acts of the other. The tribunal rejected this argument,
observing that although Clause 5.1 of the agreement provided for
mutual guarantees of performance as between the concessionaires, there
was no equivalent provision for mutual guarantees as between the two
states.169
It is possible that a situation of indemnification might arise when a
state’s responsibility is engaged through acknowledgment and adoption
of the conduct of others.170 But care must be taken to distinguish
attribution of the conduct from an assessment of its wrongfulness. As
such, in circumstances where the adopted conduct is not a breach of the
adopting state’s own obligations, its assumption of responsibility for the
act cannot be taken as amounting to an indemnification for the wrongful

168
See further sources cited in Noyes and Smith (1988), n. 82; Foster, (1972) 10 Can. YIL
137, 163 n. 84; Cheng, in Jasentuliyana and Lee (1979) 83, 120 n. 226.
169
Eurotunnel Arbitration, (2007) 132 ILR 1, 63–4.
170
On acknowledgment and adoption as a basis for attributing conduct, see ARSIWA and
Commentary, Art. 11.
 cases of joint or collective conduct 355

act of another. Nor can a state which aids or assists another state in the
commission of an internationally wrongful act be assumed thereby to
have agreed to indemnify the victim for all the consequences of the act.
In both situations, such indemnification could not simply be inferred.171
A specific guarantee or indemnity may act as a lex specialis rendering a
state responsible for conduct which would not otherwise be attributable
to it, whether of another state or states or any other actor.172

10.4.2 Contribution between persons collectively responsible

Related to the issue of guarantees and indemnities is the question of
contribution between persons collectively responsible. It is an estab-
lished principle that ‘the breach of an engagement involves an obligation
to make reparation in an adequate form’,173 and it follows from the basic
principle of independent responsibility that this obligation is no less
applicable when multiple states or entities are in breach.174 However,
this does not mean that the injured party can recover full reparation
separately from every responsible state; while it can invoke the independ-
ent responsibility of each state, it is uncontroversial that the injured
party cannot recover more compensation than the damage it has
suffered (ARSIWA Article 47(2)(a)).175
Article 47(2)(b) provides that the principle of independent responsi-
bility articulated in Article 47(1) is ‘without prejudice to any right of
recourse against the other responsible states’. The provision does not
specify which right of recourse is at issue, but the commentary makes it
clear that Article 47(2)(b) is directed at questions of contribution between
responsible states.176 In other words ARSIWA remains neutral on con-
siderations of whether and when it would be appropriate for state A, for
example, as sole respondent in a successful claim for reparation brought
by injured state B, to seek recourse against state C on the basis of state
C’s separate responsibility in connection with the same injury. Some
have criticized this neutrality as a lacuna in the law of multiple state

171 172
ARSIWA Commentary, Art. 11, §7; Art. 16, §10. See ibid., Pt I, Ch. II, §9; Pt IV.
173
Factory at Chorzów, (1928) PCIJ Ser. A No. 17, 29. The principle is enshrined in ARSIWA,
Art. 31: see ARSIWA Commentary, Art. 31. See further e.g. LaGrand (Germany v. US), ICJ
Rep. 2001 p. 466, 485; Gabčı́kovo Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997
p. 7, 81.
174
Noyes and Smith (1988), 228. See further Orakhelashvili (2010), 647.
175
This is the principle against double recovery affirmed in e.g. Factory at Chorzów, (1928)
PCIJ Ser. A No. 17, 59; see ARSIWA Commentary, Art. 47, §9. See further Chapter 20.
176
Ibid., Art. 47, §10.
356 collective or ancillary responsibility

responsibility.177 In any event, the availability of contribution in cases of

collective state responsibility is likely to be essential for states’ accept-
ance of any form of ‘joint and several liability’ under international
law.178
As always, states might choose to spell out the procedures to be
adopted in such circumstances in advance of responsibility arising, in a
treaty. The Convention on Liability for Damage Caused by Space Objects
offers an example of a system of contribution based on comparative
fault.179 Article IV provides expressly for ‘joint and several liability’
where damage is suffered by a third state as a result of a collision
between two space objects launched by two states. Paragraph 2 then
provides:
In all cases of joint and several liability referred to in paragraph 1, the burden of
compensation for the same shall be apportioned between the first two States in
accordance with the extent to which they were at fault; if the extent of the fault
of each of these States cannot be established, the burden of compensation shall
be apportioned equally between them. Such apportionment shall be without
prejudice to the right of the third State to seek the entire compensation due
under this Convention from any or all of the launching States which are jointly
and severally liable.

Similarly, where two or more states jointly launch a space object

which causes damage, Article V(2) provides for a launching state which
has paid compensation in respect of that damage to seek indemnification
from the other states responsible for the joint launching; the territorial
state is deemed a participant in the joint launching. Again, this provision
is without prejudice to the injured party’s right to seek the full amount
of compensation from each responsible state, which mirrors municipal
conceptions of joint and several liability.180
Where no treaty provisions govern the matter of contribution it
may fall to good-faith negotiations between the responsible states. In
Certain Phosphate Lands in Nauru, Nauru had asserted grievances against
all three members of the Administering Authority (Australia, New
Zealand and the United Kingdom) but when it eventually commenced
proceedings in the International Court, it named Australia as the sole

177
Besson would like to see a more developed and refined approach to recours internes
between responsible states: see Besson (2007), 34–5, 37–8.
178
See Noyes and Smith (1988), 255–8, 263.
179
On lex specialis and ARSIWA generally see ARSIWA and Commentary, Art. 55.
180
For further discussion of the joint and several liability established in the Convention see
Noyes and Smith (1988), 225, 244–6, 263–5 and sources cited at n. 82 therein.
 cases of joint or collective conduct 357

respondent.181 The case was ultimately settled between Australia and

Nauru, but the United Kingdom and New Zealand subsequently paid
Australia a contribution.182 Besson describes this type of contribution
arrangement as restoring ‘perfect solidarity’ between states.183
In other cases, injured state B might bring its claim against both state
A and state C rather than a sole respondent, and the tribunal will have to
apportion any award of damages between them. It may be that as a
matter of equity a court disallows any contribution, for example, on
the basis of the maxim ex turpi causa non oritur actio. In such cases the
victim is compensated, but as between the joint wrongdoers the loss lies
where it falls.184 Or the court may have to grapple with establishing, as a
matter of fact, the extent of each of those states’ contribution to the
wrongful act itself, before it can determine contribution between respon-
sible states in the context of reparation.
On the matter of contribution as an issue of causation, ARSIWA
offers little guidance.185 The obligation of reparation only arises if
the injury is ‘caused by the internationally wrongful act’, but the
Articles are silent on how to establish the causal link between the
conduct of each state and the wrongful act causing the injury, as
distinct from the causal link between the wrongful act and the
injury.186 It is reasonable to assume that this requires a return to
the principle of independent responsibility – if state A performed an
element of the internationally wrongful act and thereby played a part
in causing the injury, then responsibility arises, regardless of whether
another state’s conduct had a more direct causal relationship with the
injury.187 There are no shades of grey in the initial determination of
whether responsibility attaches; but the matter becomes more com-
plex at the reparation stage, because contribution as causation will
affect a tribunal’s quantification of damages and correspondingly
impact on contribution between responsible states for the purposes
of compensating the injured party.

181
See ICJ Rep. 1992 p. 240, 337–42 (Judge Schwebel, diss.) for the background.
182
See discussion in Crawford, Third Report, 74.
183
Besson (2007), 26, 29; see further Wellens, in Wolfrum and Kojima (2010) 3, 27.
184
Crawford, Third Report, 75. On the operation of the ex turpi doctrine in domestic legal
systems, see Weir, ‘Complex liabilities’ (1983) 11 International Encyclopedia of Comparative
Law, 12–14, 64.
185
Stern, in Crawford, Pellet and Olleson (2010) 563, 569–70.
186
On which see ARSIWA Commentary, Art. 31, §10.
187
This is supported by Dominicé (2010), 282–3.
358 collective or ancillary responsibility

Assessing contribution is likely to be more straightforward where each

state is equally at fault in terms of its contribution to the injury,188 than
where one state’s action was more remote and would not have been
sufficient on its own to cause the whole of the damage.189 Difficulties
are also foreseeable where one state is responsible not as a co-author of
the wrongful act itself, but rather for having aided or assisted the
principal wrongdoer: in such cases the assisting state should generally
be held responsible only for the consequences which flow from its own
conduct, not that of another state,190 and it may not always be appropri-
ate (or desirable as a matter of policy) for the principal wrongdoer to
have a right of internal recourse against states which assisted it.191
Another facet of contribution, of course, is that the injured party may
itself have contributed to the conduct which resulted in its injury. In
circumstances where the injured state or individual victim of the wrong-
ful act has ‘materially contributed to the damage by some wilful or
negligent act or omission’, that contribution will be taken into account
in the determination of reparation.192 Approaches taken in municipal
tribunals may prove useful as guidance for international decision-
makers faced with determining relative responsibility in these various
situations, although domestic analogies only go so far in an international
context.193

10.4.3 International claims involving conduct of private parties

In certain circumstances a state’s international responsibility may be
engaged through its involvement or ‘complicity’ not in the wrongful
acts of another state, but in the acts of private persons, whether
188
See Noyes and Smith (1988), 262. In Oil Platforms Judge Simma advocated the use of
domestic analogies of joint and several liability to overcome the obstacle of ‘factually
“indivisible” wrongful acts’ (ICJ Rep. 2003 p. 161, 359); see further Aust (2011), 274–6.
189
One such example might be the United Kingdom’s contribution to the Iraq war in 2003:
although the United Kingdom itself emphasized the ‘jointness’ of the enterprise and
thus could be said to have assumed responsibility, in reality it had little influence over
the work of the Coalition Provisional Authority in Iraq, which operated effectively as an
organ of the United States. See Talmon (2008); Aust (2011), 220.
190
See ARSIWA Commentary, Art. 16, §10. The aid or assistance may have been such that
the act would not have occurred without it, or it may have been insignificant or merely
incidental – this comes back to the notion of ‘complicity as a matter of substance and
degree’.
191
Aust (2011), 294–5.
192
ARSIWA and Commentary, Art. 39. See further Convention on Liability for Damage
Caused by Objects Launched into Outer Space, Art. VI; Stern (2010) 563, 570; Moutier-
Lopet, in Crawford, Pellet and Olleson (2010) 639.
193
Noyes and Smith (1988), 225, 265–6.
 cases of joint or collective conduct 359

individuals, groups or corporations. It was on this type of complicity that

early scholarship tended to focus, rather than on joint state conduct.194
Ordinarily, private conduct does not trigger the secondary rules of state
responsibility because it is not generally attributable to the state.195
However, the Tehran Hostages case demonstrates two very different mech-
anisms by which the international responsibility of states may be
engaged in connection with the conduct of private parties.196 The Iranian
authorities took no steps to prevent the seizure or rescue the hostages,
and in fact Iranian religious leaders and other officials issued statements
endorsing the actions of the militants.197 On 17 November 1979 the
Ayatollah Khomeini issued a decree which made Iran’s intention to use
the situation for political leverage very clear:
The noble Iranian nation will not give permission for the release of the rest of
[the hostages]. Therefore, the rest of them will be under arrest until the American
Government acts according to the wish of the nation.198

In early 1980 the United States initiated a claim against Iran in the
International Court of Justice, but Iran refused to participate. After
satisfying itself that it had jurisdiction and that the case was well
founded in terms of Article 53 of the ICJ Statute, the Court determined
that the incident had engaged Iran’s international responsibility. First,
the Court found that Iran was responsible for failing to prevent the
seizure of the US embassy or bring its occupation to an end.199 Second,
the Court held that the continuation of the occupation of the US embassy
and the detention of its inmates as hostages in accordance with the
policy decreed by the Ayatollah Khomeini fundamentally transformed
the situation, such that the ongoing hostage crisis was to be seen as the
responsibility of the state,200 even though the initiation of the attacks
was not attributable to Iran.201
In the first case, the finding of responsibility for failure to prevent was
based on Iran’s own conduct in respect of its primary obligations under
conventional and customary international law, rather than any generally

194
See e.g. Brierly (1928).
195
See e.g. ARSIWA Commentary, Art. 8, §1; Art. 11, §§2–3; de Frouville (2010), 257–64.
196
Tehran Hostages, ICJ Rep. 1980 p. 3. For an analysis of the case see Rafat, (1980–1) 10
DJILP 425. On the aspects pertaining to the law of state responsibility see ARSIWA
Commentary, Art. 11, §4.
197 198
See Tehran Hostages, ICJ Rep. 1980 p. 3, 33–5. Ibid., 34.
199 200
Ibid., 31–3. Ibid., 35.
201
The Court found the attacks to have been of an ‘initially independent and unofficial
character’; ibid., 28–31, esp. 30.
360 collective or ancillary responsibility

applicable secondary principles of responsibility arising from the con-

duct of private persons.202 In such cases, the state should not be seen as
an accomplice of the private actor, and the private conduct is not attrib-
uted to the state; rather, the actions of that private person are simply a
catalyst. The state’s responsibility depends on how it responds to the
private conduct, in the context of its own international obligations,
whether pursuant to the specific terms of a treaty or under general
international law.203 The classic example is every state’s obligation of
due diligence with regard to the protection of foreign nationals on its
territory from attacks, and the punishment of the perpetrators of any
attacks.204 Others include, for example, Article III of the Convention on
Liability for Damage Caused by Space Objects: a state shall be liable for
certain damage caused by a space object that it has launched ‘only if the
damage is due to its fault or the fault of persons for whom it is respon-
sible’,205 which could conceivably include private persons or companies.
In the context of obligations to prevent transboundary harm from haz-
ardous activities, a state’s responsibility might be engaged as a result of
private conduct causing such harm if the state has failed to establish
appropriate regulation and monitoring mechanisms within its jurisdic-
tion.206 In all these cases, although the responsibility of the state is in a
sense ‘connected’ to the action of private persons, it arises as a matter of
the state’s own primary obligations and not through the attribution of
that private conduct to the state.
In terms of secondary rules of state responsibility involving the con-
duct of private persons, the Court’s conclusion on the ‘second phase’ of
the crisis is more on point. At first glance, the finding that the ongoing
hostage situation was attributable to Iran could be supported by either
ARSIWA Article 8 or Article 11. Article 8 covers attributability to the
state of conduct in situations in which the person or group engaged in
the conduct ‘is in fact acting on the instructions of, or under the direc-
tion or control of, that State in carrying out the conduct’.207 Whether the

202
Ibid., 30–3. On the distinction between the obligation to prevent disturbances to foreign
missions under the Vienna Convention on Diplomatic Relations, 18 April 1961, 500
UNTS 95, Art. 22(2), and general obligations of prevention as a category of obligation in
the law of state responsibility, see Crawford, Second Report, 28.
203 204
De Frouville (2010), 275–80. Ibid., 277.
205
Art. IV(1)(b) contains similar wording.
206
See ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities
(with commentaries), ILC Ybk 2001/II(2), 156 (commentary to Art. 5, §3). The damage
itself will not usually be attributable to the state: Boyle (2010), 98.
207
See ARSIWA Commentary, Art. 8.
 cases of joint or collective conduct 361

case is one of instructions, direction or control, there must be a real link

between the actor(s) and state machinery, even though it is not necessary
that the conduct involves ‘governmental activity’.208 The standard of
control required for attribution has been uncertain.209 The test of ‘effect-
ive control’ laid down by the International Court in Military and Paramili-
tary Activities in and against Nicaragua210 was subsequently muddled by the
Appeals Chamber of the ICTY, which proposed a test of ‘overall control’
both for characterizing the conflict in Bosnia and Herzegovina as inter-
national, and for imputing the acts committed by Bosnian Serbs to the
Federal Republic of Yugoslavia under the law of state responsibility.211
The Appeals Chamber’s treatment of the latter issue was unfortunate, as
it confused the rules of international humanitarian law with which it
was concerned with the International Court’s standard for attribution in
the context of state responsibility, a matter beyond the ICTY’s man-
date.212 The International Court took the opportunity to set the record
straight in Bosnian Genocide by reaffirming the Nicaragua standard of
‘effective control’ for engaging state responsibility for private conduct,
and emphasizing the distinctive purpose and context of the ‘overall
control’ test articulated by the ICTY.213 It described ARSIWA Article 8
as expressing a principle of customary international law.214

208
Ibid., Art. 8, §§1–2.
209
See the profusion of case law discussed in Crawford, First Report, 39–43; de Frouville
(2010), 266–71.
210
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Rep. 1986
p. 14, 65.
211
Tadic´, Appeal against Conviction, (1999) 124 ILR 61.
212
See e.g. ARSIWA Commentary, Art. 8, §§4–6; Del Mar, (2010) 21 EJIL 105; cf. de Frouville
(2010), 269–71. See further Chapter 5.
213 214
Bosnian Genocide, ICJ Rep. 2007 p. 43, 207–11. Ibid., 207, 211.
11 Responsibility for breaches of
communitarian norms

11.1 Introduction
It has been a commonplace since Roman times that it is society that
requires and generates the law: ubi societas, ibi ius. This idea long raised
questions on the international law plane, where the ius gentium was
minimal and put to the test the existence of any international society
worthy of the name. Nowadays it seems that international law develops
more rapidly than international society does, seeking to serve as a tractor
rather than a trailer, reversing the Roman scheme of society and law.1
But where this happens, the developments may be fragile and called into
question. An example of this process may be identified in ‘communi-
tarian norms’ of international law.
Communitarian norms – also referred to as obligations erga omnes – can
be provisionally defined as multilateral rights and obligations, established
in the interest of and owed to the international community as a whole,
entailing a recognized legal interest of each of its members to invoke com-
pliance.2 Other characteristics of communitarian norms have been identi-
fied, in particular universality in the sense of binding force for all states
and solidarity in its link to measures of enforcement.3 But, to the extent
they are valid, these seem to be subsumed under the provisional definition.

This chapter is adapted from the essay entitled ‘Responsibility for Breaches of
Communitarian Norms: An Appraisal of Article 48 of the ILC Articles on Responsibility of
States for Internationally Wrongful Acts’, in Fastenrath et al. (eds.), From Bilateralism to
Community Interest: Essays in Honour of Judge Bruno Simma (2011) 224. The assistance of
Rumiana Yotova, St Catharine’s College, Cambridge, in the production of that essay is
gratefully acknowledged.
1
That this can happen is evidenced by the EU, which is very much ‘law-led’: e.g. Treaty of
Lisbon, 17 December 2007, [2007] OJ C306/01.
2
Cf. Crawford, (2006) 319 Hague Recueil 325, 344.
3
Ragazzi, The Concept of International Obligations Erga Omnes (1997), 17.

362
 breaches of communitarian norms 363

Communitarian norms have been identified and applied by international

courts and tribunals well before the most recent iterations of the subject.
The Permanent Court in its very first case, Wimbledon, allowed for a claim
to be brought by the United Kingdom, France, Italy and Japan against
Germany in relation to its obligation not to refuse access to the Kiel Canal.
Even though Italy and Japan were not individually injured,4 the Court noted
with regard to their standing that
each of the four Applicant Powers has a clear interest in the execution of the
provisions relating to the Kiel Canal since they all possessed fleets and merchant
vessels flying their respective flags.5

The Court concluded that states enjoy freedom of navigation in the

Kiel Canal, as it ‘has been permanently dedicated to the use of the whole
world’.6 The freedom of navigation is one of the classical examples of
a communitarian norm, identified by Hugo Grotius as ‘a right [which]
equally appertaineth to all nations’.7 In that context, the Permanent Court
had no difficulty in according standing to states which were not directly
affected by the breaches in question but nevertheless had a recognized
interest in ensuring compliance with the international regime.
Another early instance of application of communitarian norms con-
cerned the obligation of demilitarization of the Åland Islands, which in
1920 was recognized as binding on Finland by an International Commit-
tee of Jurists appointed by the Council of the League of Nations, even
though Finland was not a state party to the Peace Treaty between Sweden
and Russia establishing the regime. The Committee noted:
The Powers have, on many occasions since 1815, and especially at the conclusion
of peace treaties, tried to create true objective law, a real political status the
effects of which are felt outside the immediate circle of contracting parties.8

The Committee stressed that the obligations of demilitarization of

the islands were
laid down in European interests [sic]. They constituted a special international
status relating to military considerations, for the Aaland Islands. It follows that

4
The Wimbledon was a British-flagged vessel demise-chartered to a French company, the
demise charterer taking the risk of delay. In the event only France recovered damages: SS
Wimbledon, (1923) PCIJ Ser. A No. 1, 33.
5 6
Ibid., 20. Ibid., 28.
7
Grotius, Mare Liberum (1609), Ch. I (ed. Armitage, 2004, 11).
8
Report of the International Committee of Jurists entrusted by the Council of the League of
Nations with the task of giving an advisory opinion on the legal aspects of the Aaland
Islands Question, (October 1920) LNOJ Spec. Supp. No. 3, 17.
364 collective or ancillary responsibility

until these provisions are duly replaced by others, every State interested has the
right to insist upon compliance with them.9

This conclusion identifies the essence of communitarian norms: the

community interest in whose defence they are established and the con-
sequent legal interest of every member of the community to invoke
responsibility for compliance. The various international regimes relating
to demilitarization are also typical instances of integral obligations. This
reasoning was relied on by Judge McNair in his separate opinion in the
South West Africa cases when he stated that ‘it happens that a group of
Great Powers or a large number of States . . . assume a power to create by
a multipartite treaty some new international régime or status . . . This
power is used when some public interest is involved.’10
Although, then, the concept of the erga omnes applicability of commu-
nitarian norms was not new,11 it only crystallized as a modern formula-
tion in the dictum of the Court in the Barcelona Traction case, where the
Court ventured to say:
[A]n 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.12

In the following paragraph, the Court gave as examples of such obliga-

tions those deriving from the outlawing of aggression and genocide, as
well as the basic rights of the human person, including the protection
against slavery and racial discrimination.13
This holding limited if not reversed the Court’s judgment in the South
West Africa cases, where by the barest majority it had denied standing to
Liberia and Ethiopia to invoke the responsibility of South Africa for
breach of the Mandate, stating:
[T]he principle of the sacred trust has no residual judicial content which would,
so far as any particular mandate is concerned, operate per se to give rise to legal

9
Ibid., 19 (emphasis added).
10
International Status of South West Africa, ICJ Rep. 1950, 128, 153 (Judge McNair).
11
See to this effect the conclusions of the ILC in its Report on Fragmentation of
International Law, UN Doc. A/CN.4/L.682, 13 April 2006, §381.
12
Barcelona Traction, Light & Power Company, Limited (Spain v. Belgium), Second Phase, ICJ Rep.
1970 p. 3, 32.
13
Ibid., 32–3.
 breaches of communitarian norms 365

rights and obligations outside the system as a whole; and, within the system
equally, such rights and obligations exist only so far as there is actual provision
for them . . . Hence, although . . . the members of the League had an interest in
seeing that the obligations entailed by the mandates system were respected,
this was an interest which, according to the very nature of the system itself,
they could exercise only through the appropriate League organs, and not
individually.14

According to the Court’s conclusion in 1966, reached by the casting

vote of the president, Sir Percy Spender, the default rule under general
international law was not to recognize individual standing of states for
the protection of a ‘sacred trust’ or common interest; enforcement could
only take place through a collective form of invocation within the frame-
work of an international organization.15

11.2 The International Law Commission’s compromise

Although there is no complete agreement on the enumeration of com-
munitarian norms and although the law in this area is still developing,
the principle that in certain cases any state had standing to protest
against breaches of certain fundamental norms, and if necessary to
institute proceedings to vindicate its interest as a member of the inter-
national community, has long been accepted.16
The idea was reflected, in the Draft Articles on State Responsibility
adopted by the ILC on first reading in 1996, in two unwieldy provisions,
Draft Article 19 (dealing with ‘international crimes of States’) and Draft
Article 40 (defining the ‘injured State’ to include, in the case of state
crimes and in certain other cases, all states). On second reading these
were radically changed. Draft Article 19 disappeared, being replaced by
Articles 40 and 41 (dealing with consequences of serious breaches of
peremptory norms). Draft Article 40 was transfigured, emerging as Art-
icles 42 and 48 (distinguishing between the ‘injured State’ and other
states entitled to invoke responsibility even though not individually
injured by the breach). Much more attention has been paid in the
literature to the debate over ‘international crimes of State’.17 This

14
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, ICJ Rep.
1966 p. 6, 35.
15
Judges Tanaka (ibid., 250) and Jessup (ibid., 325) appended strong dissents on this point.
16
E.g. Jennings and Watts (eds.), 1 (1992), 5.
17
See Crawford, in Crawford, Pellet and Olleson (2010) 405; Ollivier, in Crawford, Pellet
and Olleson (2010) 703. On ‘crimes of state’ see also the Excursus to this chapter.
366 collective or ancillary responsibility

chapter focuses on the other half of the equation, ARSIWA Article 48 and
the accompanying notion of invocation of responsibility in the public
interest.18 Article 48 reads as follows:

1. Any State other than an injured State is entitled to invoke the respon-
sibility 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 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.
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 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 responsi-
bility by a State entitled to do so under paragraph 1.

The significance of this provision is that – read with Article 42 – it

breaks the link between substantive rights and process which previously
restricted the development of the law, giving rise to such implausibilities
as Draft Article 40. In the Reparation for Injuries case, the Court said that
‘only the party to whom an international obligation is due can bring a
claim in respect of its breach’.19 The problem with this proposition –
unimpeachable in the context of bilateral norms, and indeed of the
factual situation underlying that opinion – is at least twofold. First, there
is no collective entity with capacity to act, yet it seems extravagant to
treat obligations, for example in the environmental or human rights
sphere, as owed individually to every state. The collective action problem
in international law is not solved by prematurely turning collective obliga-
tions into bundles of bilateral obligations, in the manner of the early-
modern attempts at multilateral treaty-making.20 Second, even though
every state may have legitimate concerns at some breach of an international

18
See Simma, (1994) 250 Hague Receuil 217. See also Crawford, in Andenas (ed.), 2 Judicial
Review in International Perspective: Liber Amicorum in Honour of Lord Slynn of Hadley (2000) 23.
19
Reparation for Injuries Suffered in the Service of the United Nations, ICJ Rep. 1949 p. 149, 181–2.
20
See Marek, in Diez et al. (1980) 17.
 breaches of communitarian norms 367

obligation, particular states may be particularly injured or affected by it,

and their priority when it comes to reactions should be recognized.
In short, rather than reducing everything to the level of individually
held substantive rights, Article 48 recognizes that certain communitar-
ian norms are owed either to the other states parties (sometimes referred
to as obligations erga omnes partes) or to ‘the international community as
a whole’ (obligations erga omnes).21 As a consequence, in the case of
obligations erga omnes partes every state party to the treaty in question
has a procedural right, that is, locus standi to invoke its application on
behalf and for the benefit of all the parties; and in the case of obligations
erga omnes, every state has standing to invoke it on behalf of ‘the inter-
national community as a whole’. This provision ‘in general achieves a
certain balance, de lege ferenda, between the collective interest in compli-
ance with basic community values and the countervailing interest in not
encouraging the proliferation of disputes’.22
The movement from bilateralism to a community-oriented approach in
the work of the ILC can be traced back to Special Rapporteur Fitzmaurice’s
Third Report on the Law of Treaties.23 He proposed a distinction between
‘interdependent’ and ‘integral’ treaty obligations, affecting the capacity of
states to derogate from them by a subsequent treaty and entailing their
responsibility for doing so.24 Fitzmaurice gave as examples of interdepend-
ent obligations those whose violation by one party prejudices the treaty
regime between all, for example in the context of disarmament or of
fishing moratoria.25 Integral obligations on the other hand were defined
as ‘self-existent, absolute and inherent for each party and not dependent on
a corresponding performance by the others’;26 examples included obliga-
tions under the Genocide Convention, human rights conventions, the 1949
Geneva Conventions, ILO conventions and treaties providing for a certain
regime in a given area such as that at the entrance of the Baltic Sea.27

21
See, in the context of international criminal responsibility, Rome Statute for the
International Criminal Court, 17 July 1998, 2187 UNTS 2, Art. 5(1); cf. ILC Draft Statute
for the International Criminal Court, ILC Ybk 1994/II(2), 26–7, Preamble.
22
Crawford, Fourth Report, 11.
23
Fitzmaurice, Third Report, ILC Ybk 1958/II, 27–8, 44ff (Art. 19 and commentary).
24
Ibid.
25
Fitzmaurice, Second Report, ILC Ybk 1957/II, 54 n. 73; Fitzmaurice, Third Report, ILC
Ybk 1958/II, 44.
26
Fitzmaurice, Second Report, ILC Ybk 1958/II, 28.
27
Treaty of Copenhagen, 14 March 1857, 116 CTS 357; Convention of Washington, 11 April
1857, 116 CTS 465. See further Fitzmaurice, Second Report, ILC Ybk 1957/II, 54;
Fitzmaurice, Third Report, ILC Ybk 1958/II, 44.
368 collective or ancillary responsibility

After re-examining in the light of government comments whether

these types of obligation should constitute a special case of treaty con-
flict, the ILC, noting the varying importance of these types of obligation
from ones concerning technical matters to those relating to the main-
tenance of peace, nuclear tests and human rights, decided to ‘leave the
question as one of international responsibility’.28 Indeed, these consider-
ations did in due course influence the ILC’s definitions of obligations erga
omnes partes and erga omnes in Article 48(1)(a) and (b) respectively, as is
made clear in the commentaries.
Article 48 was not adopted without criticism. Some governments
expressed concern as to its breadth and potential for abuse, for ‘opening
the flood gates’ of litigation;29 while some scholars30 complained that it
is too weak compared with its predecessor, reflecting the notion of ‘State
crime’. Subsequent practice gives no indication that these fears were
substantiated. States do not seem inclined to bring international legal
proceedings without good reason. If they choose to do so nevertheless,
acting (or purporting to act) in the common interest of the international
community, they should not be hindered by procedural technicalities.
Better to give states standing in court to protect what they perceive as
global values than to leave them only with non-judicial means of dispute
settlement, whether in the guise of countermeasures or under the rubric
of ‘responsibility to protect’.
For its part the ILC endorsed in ARSIWA Article 48 the principle of
standing to invoke erga omnes obligations, relying on the Barcelona Trac-
tion dictum, and in 2011 adopted an analogous provision in Article 49 of
the Draft Articles on Responsibility of International Organizations
(DARIO).31 In line with the Wall opinion,32 this provides for standing of
both states and international organizations to invoke the responsibility
of an international organization for breaches of communitarian norms.
However, it qualifies the standing of international organizations by
imposing the requirement that ‘the obligation breached is owed to the
international community as a whole and safeguarding the interest of the

28
ILC Ybk 1966/II, 217.
29
Crawford, Fourth Report, 11 for the comments of Japan and France. See also Crawford,
Third Report, 27–8, nn. 142–5 referring to the comments of Italy (ILC Ybk 1998/II(1),
104); Venezuela (UN Doc. A/C.6/54/SR.23, §54); Austria (ILC Ybk 1998/II(1), 138); and the
United States (ILC Ybk 1998/II(1), 142).
30 31
Cassese (2005), 269–71. ILC Report 2011, UN Doc. A/66/10, 52.
32
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep.
2004 p. 136.
 breaches of communitarian norms 369

international community underlying the obligation breached is included

among the functions of the international organization invoking respon-
sibility’.33 This functional restriction flows logically from the more
limited ‘measure of international personality [of international organiza-
tions] and the capacity to operate upon the international plane’.34
A further, practical impediment to the application of DARIO Article 49
is the lack of any judicial forum before which international organiza-
tions could bring claims or have their responsibility invoked.35
Some light is shed on the status of these provisions by the Court’s
treatment of Belgium’s standing in Belgium v. Senegal. The case concerned
allegations of crimes against humanity and torture made against Hissène
Habré, a former president of Chad, who had been granted asylum in
Senegal. In 2005 Belgium sought his extradition relying in particular on
the 1984 Torture Convention. After four years, Habré not having been tried
or extradited during that time, in 2009 Belgium commenced proceedings
seeking his extradition. Senegal argued that the claim was inadmissible in
that none of the torture victims had Belgian nationality at the time of the
alleged offences. Belgium relied, inter alia, on ARSIWA Article 42(b)(i),
claiming a ‘special interest’ by reason of the Belgian proceedings and
extradition request. The Court declined to decide the case on that ground,
holding instead that the relevant provisions of the Torture Convention
were obligations erga omnes partes ‘in the sense that each State party has an
interest in compliance with them in any given case’.36 It concluded:
The common interest in compliance with the relevant obligations under the
Convention against Torture implies the entitlement of each State party to the
Convention to make a claim concerning the cessation of an alleged breach by
another State party. If a special interest were required for that purpose, in many
cases no State would be in the position to make such a claim. It follows that any
State party to the Convention may invoke the responsibility of another State
party with a view to ascertaining the alleged failure to comply with its obliga-
tions erga omnes partes, such as those under Article 6, paragraph 2, and Article 7,
paragraph 1, of the Convention, and to bring that failure to an end.37

33 34
ILC Report 2011, 64, Art. 49(3). Reparation for Injuries, ICJ Rep. 1949 p. 174, 179.
35
Given an appropriate arbitration agreement, such proceedings could be governed by the
Permanent Court of Arbitration Optional Rules for Arbitration Involving International
Organizations and States of 1 July 1996, available at www.pca-cpa.org/showpage.asp?
pag_id=1188.
36
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012,
§68.
37
Ibid., §69. See also ibid., §23 (Judge Owada), §§21–3 (Judge Skotnikov); and cf. ibid.,
§§11–18 (Judge Xue, diss.).
370 collective or ancillary responsibility

Although the Court did not refer to Article 48, the decision is in fact
firmly in line with ARSIWA Article 48(1)(a). But the Court’s use of the
term erga omnes partes is significant, suggesting that it may be more
parsimonious with erga omnes obligations in future.38

11.3 Invocation of communitarian norms

In its 2004 Wall Advisory Opinion, the International Court drew broad
legal consequences from the internationally wrongful acts flowing from
Israel’s breaches of communitarian norms as regards other states. In
particular, it noted:
The obligations erga omnes violated by Israel are the obligation to respect the right
of the Palestinian people to self-determination, and certain of its obligations
under international humanitarian law . . .
Given the character and importance of the rights and obligations involved, the
Court is of the view that all States are under an obligation not to recognize the
illegal situation resulting from the construction of the wall . . . They are also
under an obligation not to render aid or assistance in maintaining the situation
created by such construction. It is also for all States, 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. In addition, all the States parties
to the Geneva Convention . . . are under an obligation, while respecting the
United Nations Charter and international law, to ensure compliance by Israel
with international humanitarian law as embodied in that Convention.
Finally, the Court is of 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.39

It may be observed that the consequences referred to transcend trad-

itional state responsibility and demonstrate certain communitarian
characteristics. While respect for the right of self-determination is
defined as an erga omnes obligation, the humanitarian norms under the
Geneva Conventions are characterized as erga omnes partes. The scope of
the consequences is correspondingly different – those flowing from the
breach of self-determination relate not only to all states but also to the
38
The Court held that the dispute was exclusively one under the Torture Convention and
not under general international law: Questions Relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal), 20 July 2012, §55.
39
Wall, ICJ Rep. 2004 p. 136, 199–200.
 breaches of communitarian norms 371

United Nations and its organs as part of the international community.

Violations of the humanitarian norms on the other hand apparently
entail consequences for the other states parties to the Geneva
Conventions.
Another aspect of the Court’s holding is that the erga omnes effects of
both breaches are not expressed as procedural faculties to invoke Israel’s
responsibility in terms of ARSIWA Article 48, but as positive obligations
of each and every member of the international community to take lawful
measures in response as envisaged in Article 54. Article 54 is a saving
clause, dealing with the consequences of serious breaches of obligations
under peremptory norms for countermeasures. Other consequences are
dealt with in Article 41, in terms which the Court borrowed without
acknowledgement.40 The Court seems to draw these conclusions directly
from the erga omnes type of the obligations breached, nowhere mention-
ing whether they are also of a peremptory character or analysing the
particular gravity of the breach. All the consequences flowing from the
breaches in the area of state responsibility were linked to the erga omnes
character of the obligations, leaving a contrario their effects as peremp-
tory norms to other areas of international law such as the law of treaties.
In this sense, Wall can be seen not only as endorsing the ILC provisions
on communitarian norms set out in ARSIWA Article 48 and at least
envisaged as possible by Article 54, but also as going a step further in
the development of the consequences of erga omnes obligations.41
In fact the ILC did draft and comment on the provisions on serious
breaches of obligations under peremptory norms with particular refer-
ence to communitarian norms. Indeed, Chapter III of Part Two was first
labelled ‘serious breaches of obligations to the international community
as a whole’,42 and referred to obligations erga omnes as the issue under-
lying Article 40,43 viewing Chapter III as ‘a framework for the progres-
sive development within a narrow compass, of a concept which is or
ought to be broadly acceptable’.44 In 2001, Article 40 was modified to
refer to serious breaches of peremptory norms on the ground, inter alia,
that Chapter III is concerned with substance, not standing.45 There is in
truth little or no difference between the two categories.

40
Ibid., 231 (Judge Kooijmans).
41
This erga omnes-based approach did not remain uncriticized: e.g. ibid., 216–17 (Judge
Higgins).
42 43 44
See Crawford, Fourth Report, 12. Ibid., 13. Ibid., 14.
45
ILC Ybk 2001/I, 105 (Chairman of the Drafting Committee).
372 collective or ancillary responsibility

The issue of responsibility for breaches of communitarian norms

surfaced again before the International Court in Armed Activities on the
Territory of the Congo (DRC v. Uganda) and were dealt with at some length
in the separate opinion of Judge Simma, with express reference to
ARSIWA Article 48.46 According to Judge Simma, the Court should have
entertained the second counterclaim of Uganda which concerned the
maltreatment by Congolese soldiers of persons at the Ndjili International
Airport whose nationality could not be ascertained and which was thus
declared inadmissible. Even though Uganda did not invoke as a basis for
standing the breach of communitarian norms, Judge Simma took the
view that ‘no gaps exist in the law that would deprive the affected
persons of any legal protection’.47 Furthermore,
[R]egardless of whether the maltreated individuals were Ugandans or not,
Uganda had the right – indeed the duty – to raise the violations of international
humanitarian law committed against the private persons at the airport. The
implementation of a State party’s international legal duty to ensure respect by
another State party for the obligations arising under humanitarian treaties by
way of raising it before the International Court of Justice is certainly one of the
most constructive avenues in this regard . . .
As to the question of standing of a claimant State for violations of human
rights committed against persons which might or might not possess the nation-
ality of that State, the jurisdiction of the Court not being at issue, the contem-
porary law of State responsibility provides a positive answer as well . . . The
obligations deriving from the human rights 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.48

He concluded:
If the international community allowed such interest to erode in the face not
only of violations of obligations erga omnes but of outright attempts to do away
with these fundamental duties, and in their proper place open black holes in the
law in which human beings may be disappeared and deprived of any legal
protection whatsoever for indefinite periods of time, then international law, for
me, would become much less worthwhile.49

In line with the Court’s reasoning in Wall, Judge Simma also views the
consequences of violations of communitarian norms as interrelated
rights and at the same time as obligations to invoke the international
responsibility of the alleged violator. He suggests that the Court should
46 47
ICJ Rep. 2005 p. 168, 334ff. (Judge Simma). Ibid., 340.
48 49
Ibid., 347–8. Ibid., 350.
 breaches of communitarian norms 373

have considered proprio motu the Applicant’s standing to invoke breaches

of erga omnes obligations, even if it was not expressly relied on.
In its Application instituting proceedings against Japan in Whaling in
the Antarctic,50 Australia invokes an obligation erga omnes partes under the
International Convention for the Regulation of Whaling, even though
basing the jurisdiction of the Court on Article 36(2) of its Statute and the
respective declarations of acceptance of Australia and Japan. Still the
conduct in question took place in an area subject to an objective inter-
national regime to which Japan is a party, and was opposed by a ‘strong
reaction of the international community’,51 including formal objection
by thirty states and the European Commission. The remedies sought by
Australia, which invokes Japan’s obligations erga omnes partes under the
Whaling Convention and erga omnes in the context of environmental
protection under CITES and the Convention on Biological Diversity,
coincide with the remedies available under ARSIWA Article 48(2) and
do not include any reparation in the sole interest of the Applicant.
Communitarian norms have been invoked at a regional level, for
instance within the Council of Europe pursuant to the ECHR. In the
Pfunders case in 1961, the European Commission of Human Rights
defined the rights and obligations under the ECHR as integral, with the
interesting practical consequence of broadening their ratione temporis
scope to extend to instances prior to the ratification of the Convention
by the responsible state. It held:
[T]he obligations undertaken by the High Contracting Parties in 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.52

In a later case between Ireland and the United Kingdom, the European
Court of Human Rights elaborated further the communitarian nature of
the regime of protection established by the ECHR. It stated that,
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’.53

50
Whaling in the Antarctic (Australia v. Japan), ICJ, Application Instituting Proceedings, 31
May 2010.
51 52
Ibid., §32. Austria v. Italy, (1961) 4 ECommHR Ybk 138.
53
Ireland v. UK, (1978) 58 ILR 188, 291.
374 collective or ancillary responsibility

The broad possibilities open to the states parties to the ECHR to invoke
each other’s responsibility for breaches of communitarian norms are
confirmed by the jurisdictional clause in ECHR Article 33. But, as
observed by Bruno Simma, the fact is that ‘so far, States have hardly
shown the excessive human rights “vigilantism” dreaded by some’.54
He notes that in the sixty-year history of the ECHR, only a few
instances have occurred where states whose interests were not specif-
ically affected by a breach have invoked it before the Court. These were
the two applications by Denmark, Norway, Sweden and the Nether-
lands against Greece55 and the later application of Denmark against
Turkey.56
In other instances, states have sought to invoke communitarian
norms when claiming the right to exercise extra-territorial jurisdiction;
one apparent example is the litigation under the ‘law of nations’ in
the United States pursuant to the Alien Tort Claims Act.57 Other less
problematic cases, at the international level, include the Fur Seals
Arbitration58 and the US – Shrimp case before the Dispute Settlement Body
of the WTO.59
Instances of actio popularis seem to emerge in a regional human
rights context too. For example, in Social & Economic Rights Action Centre,
Center for Economic & Social Rights v. Nigeria the African Commission on
Human Rights accepted an action brought by two non-governmental
organizations (NGOs) on behalf of the Ogoni people, which, as is usu-
ally the legal situation of a ‘people’, does not have standing to invoke
their rights.60
Communitarian norms seem to have a prominent role in the requests
for advisory opinions. For instance, the Seabed Disputes Chamber of the
International Tribunal for the Law of the Sea has issued an advisory
opinion regarding the responsibilities and obligations of states for spon-
soring persons with respect to activities in the International Seabed Area
(‘the Area’).61 The regime of the Area is an example of one established in

54
Simma and Pulkowski (2010), 162.
55
Ibid., quoting (1968) 11 ECommHR Ybk 691; (1969) 12(II) ECommHR Ybk 1.
56
Denmark v. Turkey, Friendly Settlement, [2000] ECtHR 34382/97, §§20, 23.
57 58
28 USC §1350. (1893) 1 IELR 43.
59
US – Shrimp, WT/DS58/AB/R, 12 October 1998.
60
Social and Economic Rights Action Centre, Center for Economic & Social Rights v. Nigeria, ACHPR
Comm. No. 155/96, 13–27 October 2001 (based on the African Charter on Human and
People’s Rights, 27 June 1981, 1520 UNTS 218, Art. 24).
61
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities
in the Area, ITLOS Case No. 17, 1 February 2011.
 breaches of communitarian norms 375

the common interest of the international community so as to preserve

the Area and its resources as a common heritage of mankind.62
This tendency of states to request advisory opinions through an inter-
national organization regarding questions of interpretation and applica-
tion of communitarian norms has also been in evidence in the
International Court of Justice. For instance, in the 1951 Genocide Advisory
Opinion, the Court underlined the communitarian character of the
Genocide Convention, stating:
[T]he 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 con-
vention of this type, one cannot speak of individual advantages and disadvan-
tages to States, or of the maintenance of a perfect contractual balance between
rights and duties.63

Other examples are the Wall Advisory Opinion, the Nuclear Weapons
Advisory Opinion and the Namibia Advisory Opinion. The occurrence of
communitarian norms more often in advisory than in contentious pro-
ceedings might be due to the combined effect of perceived standing
restrictions in contentious proceedings, as well as to the lack of any
judicial forum for direct claims by or against international organiza-
tions. In this context, ARSIWA Article 48 and Article 52 can be seen as
an important development which opens the doors to contentious juris-
diction entailing a binding outcome.
Erga omnes obligations are reflected in the compromissory and other
clauses of a number of international treaties, for example Article 8 of the
Slavery Convention,64 Article 38 of the Refugee Convention,65 Article 22
of the Convention on the Elimination of All Forms of Racial Discrimin-
ation,66 Article 33 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms,67 as well as under many
clauses in multilateral environmental treaties.68
The question of interpretation in the light of general international law
within the meaning of VCLT Article 31(3)(c) becomes crucial in the

62
See United Nations Convention on the Law of the Sea, 1833 UNTS 3, 10 December 1982,
Preamble, Art. 136.
63
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ
Rep. 1951 p. 15, 23.
64
25 September 1926, 60 LNTS 254.
65
Convention relating to the Status of Refugees, 22 April 1954, 189 UNTS 137.
66 67
7 March 1966, 660 UNTS 195. 4 November 1950, 213 UNTS 221.
68
See in general Komori and Wellens (eds.), Public Interest Rules of International Law (2009).
376 collective or ancillary responsibility

absence of an explicit clause recognizing the legal interest and standing

of all states. In the light of the treaty practice and case law discussed
above, the answer to this question should be that the general rule is the
one giving states standing to invoke compliance with communitarian
norms, provided that other jurisdictional requirements are met.
A corresponding procedural framework for the invocation of responsi-
bility for breaches of communitarian norms remains to be developed, for
example one permitting invocation by more than one member of the
international community in multiparty proceedings, instead of the trad-
itional approach of joining related proceedings.69

11.4 The relation between communitarian and other norms

Four years after the South West Africa cases, faced with a torrent of
criticism,70 the Court revisited the question of obligations erga omnes,
recognizing the standing of states to invoke communitarian norms due
to the importance of the underlying values and a common interest of
each member of the international community in invoking them. What
the Court did not do, however, was to link their effects to the ILC’s
recently formulated notion of peremptory norms of general inter-
national law. It took the Court some thirty-five years explicitly to do
that71 – although it has made up for it since.72 In the meantime, its
jurisprudence elaborated the relationship between communitarian and
other norms of international law.
The modern Court seems to be consistent in its adherence to the erga
omnes character of rights and obligations when dealing with matters of
invocation and consequences of international responsibility, while refer-
ring to peremptory norms either interchangeably with erga omnes or as a
distinct notion.

69
Cf. Rules of the International Court of Justice, 14 April 1978, Art. 47; Rules of the
International Tribunal for the Law of the Sea, 17 March 2009, Art. 47; Guidelines for
Adapting the Permanent Court of Arbitration Rules to Disputes Arising Under
Multilateral Agreements and Multiparty Contracts, available at www.pca-cpa.org/
showpage.asp?pag_id=1188.
70
E.g. Orakhelashvili, Peremptory Norms in International Law (2006), 519–25.
71
Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331, Arts. 53, 64.
72
See, most recently, Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, ICJ, 22 July 2010, §81 referring to ‘egregious violations of
norms of general international law, particularly those of peremptory character (ius
cogens)’.
 breaches of communitarian norms 377

In the year following Barcelona Traction, the Court revisited the legal
situation in South West Africa, this time in the form of an Advisory
Opinion, where it held, in line with its 1970 dictum:
[T]he termination of the Mandate and the 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 a situation which is maintained in violation of inter-
national 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 such relationship, or of the consequences thereof.73

In this opinion, the Court not only affirmed the concept of communi-
tarian norms, but broadened their consequences with regard to inter-
national responsibility in terms very close to those which would be
adopted in ARSIWA Article 41.
Erga omnes-based arguments were also invoked by Australia and New
Zealand in the Nuclear Tests case, but were not addressed by the Court,
which made its pronouncement on the basis of the erga omnes effect of
the unilateral statements made by French officials and their ability to
give rise to international responsibility in case of non-compliance – a
quite different matter.74
In the jurisprudence subsequent to the Barcelona Traction pronounce-
ment on obligations erga omnes and their effects, the Court has adopted a
more restrictive approach, implicitly qualifying its previous statement.
For instance, in the East Timor case, while recognizing the erga omnes
status of the right to self-determination the Court upheld the indispens-
able third-party rule, declining to exercise its jurisdiction in an appar-
ently clear case. It stated:
Whatever the nature of the obligation invoked, the Court could not rule on the
lawfulness of the conduct of a State when its judgment would imply an evalu-
ation of the lawfulness of the conduct of another State which is not a party to the
case. Where this is so, the Court cannot act, even if the right in question is a right
erga omnes.75

The passage is notable for its implicit shift from the language of obliga-
tion to that of right, where what was directly at stake was not the right
of the people of East Timor to self-determination but the obligation of
other states not to recognize a purported acquisition of sovereignty
73
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Rep. 1971 p. 16, 56.
74
Nuclear Tests (New Zealand v. France), ICJ Rep. 1974 p. 457, 474.
75
East Timor (Portugal v. Australia), ICJ Rep. 1995 p. 90, 102.
378 collective or ancillary responsibility

involving a use of force not sanctioned either by the people of the

territory or by Portugal, its former sovereign. The decision has been
criticized,76 but two points may be made. First, the case was principally
if not solely argued on the basis of the right to self-determination,
unrelated to the use of force. Second, and more generally, it is common
for broad principles enunciated in early cases to be subject to narrowing
and refinement by later courts – one thinks, in the common law trad-
ition, of Donoghue v. Stevenson77 or Underhill v. Hernandez.78
The Court’s conclusion – that the effects of erga omnes rights and
obligations are specific to the area of state responsibility and do not take
priority over other procedural requirements for the exercise of the
Court’s jurisdiction – was later expanded to cover peremptory norms
in Congo v. Rwanda.79 Judge Weeramantry, addressing the issue of estop-
pel in his separate opinion in the Gabčı́kovo-Nagymaros case, revisited the
matter in the following terms:
[T]he Court, in the discharge of its traditional duty of deciding between the parties,
makes the decision which is in accordance with justice and fairness between the
parties. The procedure it follows is largely adversarial. Yet this scarcely does
justice to rights and obligations of an erga omnes character – least of all in cases
involving environmental damage of a far-reaching and irreversible nature . . .
There has been conduct on the part of Hungary which, in ordinary inter partes
litigation, would prevent it from taking up wholly contradictory positions. But
can momentous environmental issues be decided on the basis of such inter partes
conduct? In cases where the erga omnes issues are of sufficient importance,
I would think not.80

11.5 Invocation and consequences of breaches of

peremptory norms
11.5.1 Defining peremptory norms
Many legal systems – especially those deriving from Roman law –
distinguish between ius dispositivum and ius strictum. The former may
be derogated from by individuals in their contractual relations. An act
which purports to derogate from the latter, however, is void to the
76
But cf. ibid., 139–223 (Judge Weeramantry, diss.).
77
Donoghue (or McAlister) v. Stevenson, [1932] AC 562.
78
Underhill v. Hernandez, 168 US 250 (1897).
79
Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v. Rwanda),
Jurisdiction and Admissibility, ICJ Rep. 2006 p. 6, 31, 52.
80
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7, 117–18.
 breaches of communitarian norms 379

extent of the purported derogation. International law is no different in

this respect, although the route taken to reach this conclusion was a
roundabout one. The early Spanish theorists, who conceived of inter-
national law’s authority as deriving from the immutable external rules
of natural law, were quick to identify non-derogable norms.81 Indeed,
this led Grotius to posit an entire system composed of rules from which
no departure was permitted:
As for the Rest, the Law of Nature is so unalterable, that God himself cannot
change it. For tho’ the Power of God be infinite, yet we may say, that there are
some Things to which this infinite Power does not extend, because they cannot
be expressed by Propositions that contain any Sense, but manifestly imply a
Contradiction. For Instance then, as God himself cannot effect, that twice two
should not be four; so neither can he, that what is intrinsically Evil, should not be
Evil.82

But by the early twentieth century, when international law was con-
ceived of in strictly positivist terms as deriving from the consent of
states, the idea of a non-derogable rule of international law seemed
impossible.83 This position altered in the wake of the atrocities of the
Second World War. The eventual consequence was VCLT Article 53:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized
by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character.

The principle did not emerge without friction. Within the Committee of
the Whole, France in particular saw the formulation that would eventu-
ally become VCLT Article 53 as vague and liable to lead to substantial
differences of opinion along political, social or economic lines.84

81
For example, Vitoria stated: ‘if there were any human law which without any cause
took away rights conferred by natural and divine law, it would be inhumane and
unreasonable and consequently would not have the force of law’: Francisci de Victoria De
Indis et de ivre belli relectiones (ed. E. Nys, trans. J. P. Bate, 1917), 152.
82
Grotius, (1625), Bk I, Ch. I, §X.5 (2005, 155).
83
Frowein, ‘Ius cogens’, (2009) MPEPIL, §3.
84
6 May 1969, UN Doc. A/CONF.39/C.1/SR.54, 309–10, esp. §34 (‘[Mr de Bresson] appealed
urgently to the members of the Conference to believe that the serious concern expressed
by his delegation to prevent the too hasty adoption of ideas which, though
magnanimous in themselves, were liable to jeopardize the security of international
relations’).
380 collective or ancillary responsibility

Since 1970, the International Court and other tribunals have in several
cases impliedly recognized the existence of a peremptory rule.85 The
least controversial members of this class are the prohibition of the use
of force in Article 2(4) of the UN Charter,86 of genocide,87 of crimes
against humanity (including systematic forms of racial discrimin-
ation),88 the basic rules of international humanitarian law89 and the
rules prohibiting trade in slaves.90 Other rules that have this special
status include the principle of self-determination, at least in its applica-
tion to colonial countries and peoples or peoples under alien
domination.91

11.5.2 Consequences of the serious breach of peremptory norms92

As alluded to by the International Court in the Wall Advisory Opinion,
international law calls for some response to the breach of a peremptory
norm by a state. ARSIWA Article 41 provides:
1. States shall cooperate to bring to an end through lawful means any serious
breach [of a peremptory norm].
2. No State shall recognize as lawful a situation created by a serious breach
[of a peremptory norm], 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 in international law.

The obligations contained in Article 41 are engaged in the face of a

‘serious breach’ of a peremptory norm. The concept of a ‘serious breach’
is defined in ARSIWA Article 40(2), which provides simply that a breach
will be considered ‘serious’ where ‘it involves a gross or systematic
85
Further: ARSIWA Commentary, Art. 40, §5. Also the list provided by the Court in
Barcelona Traction, Second Phase, ICJ Rep. 1970 p. 3, 32; East Timor, ICJ Rep. 1995 p. 90,
102.
86
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Rep. 1986
p. 14, 100–1.
87
Armed Activities (2002 Application) (DRC v. Rwanda), Jurisdiction and Admissibility, ICJ Rep.
2006 p. 6, 32; Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 111.
88
South West Africa, Second Phase, ICJ Rep. 1966 p. 6, 298 (Judge Tanaka, diss.); Barcelona
Traction, Second Phase, ICJ Rep. 1970 p. 3, 304 (Judge Ammoun); Namibia, ICJ Rep. 1971
p. 16, 78–81 (Vice-President Ammoun).
89
Legality of the Threat or Use of Nuclear Weapons, ICJ Rep. 1996 p. 226, 257.
90
Roach and Pinkerton (Case 9647), IACtHR 3/87, 22 September 1987, §54. Also Michael
Domingues, IACtHR 62/02, 22 October 2002.
91 92
Wall, ICJ Rep. 2004 p. 136, 199. For criticism: Klein, (2002) 13 EJIL 1241.
 breaches of communitarian norms 381

failure by the responsible state to fulfil the obligation’. The commentary

provides some further information in this respect, emphasizing the need
for a certain threshold of magnitude in the violation of an obligation.
Insofar as the requirement of systemic conduct in Article 40(2) is con-
cerned, this refers to the need for organized or deliberate commission:
according to the commentary, this represents a comment on factors such
as an intention to violate the norm, the scope and number of victims and
the magnitude of the consequences.93 Indeed, with respect to some
peremptory norms, the need for a certain systemic intent is a vital
element of any breach of the norm, the example par excellence being
genocide.94 But both thresholds are, to an extent, illusory (unless, as
mentioned, systemic conduct is a constitutive element of the breach):
peremptory norms are among the most serious prohibitions in inter-
national law, and the mere fact of breach is ordinarily sufficient to
warrant the label of ‘serious’.95
With this in mind, ARSIWA Article 41 sets out three consequences in
two paragraphs for the ‘serious’ breach of a peremptory norm: invalidity
and the obligations of non-recognition96 and non-assistance (Article 41
(2)),97 and the obligation of co-operation (Article 41(1)).98

11.5.2.1 The obligation of non-recognition

Recognition involves the acknowledgement by one state or government
that another state or government is legitimate: among other things,
such recognition is seen to be declarative (although not constitutive) of
statehood.99 But, as pointed out by Brownlie, recognition need not be
so confined; it is a broader concept related to ‘evaluation of State conduct
in the face of facts which may relate to legal titles, liabilities or immun-
ities’.100 Thus, just as non-recognition of one ‘state’ by another demon-
strates that the latter considers such claims of statehood to be illegal,

93
ARSIWA Commentary, Art. 40, §8.
94
As expressed in the Convention for the Prevention and Punishment of the Crime of
Genocide, 9 December 1948, 78 UNTS 277, Art. II, an essential element of genocide is
the intention ‘to destroy, in whole or in part, a national ethical, racial or religious
group’. See also the ICC Statute, Art. 6.
95
A concession made by the ILC: ARSIWA Commentary, Art. 40, §7 (‘it is not intended to
suggest that any violations of these obligations is not serious or is somehow excusable’).
96
Dawidowicz, in Crawford, Pellet and Olleson (2010) 677.
97 98
Jørgensen, in Crawford, Pellet and Olleson (2010) 687. Ibid., 695.
99
Further: Talmon, (2004) 75 BYIL 101; Crawford, The Creation of States in International Law
(2006), 12–28; Brownlie’s Principles, ch. 6.
100
Brownlie, (1982) 53 BYIL 197, 201–2. Also Orakhelashvili (2006), 282.
382 collective or ancillary responsibility

so, too, does the non-recognition of an act of state. This is noted by

Orakhelashvili:
[T]he duty of non-recognition of the breaches of peremptory norms extends not
only to State-creation but to every kind of illegality. It refers to the general duty
to refrain from acts and actions, or from taking attitudes, that imply the recog-
nition of the acts offending against peremptory norms in a variety of inter-
national legal relations.101

The archetypal example of the operation of non-recognition is that of

territorial acquisition resulting from aggression. This pre-dates the
ARSIWA: for example, Article 5(3) of the General Assembly’s Definition
of Aggression proclaims that no such acquisition of territory ‘is or shall
be recognized as lawful’.102 As Blix notes, the application of the obliga-
tion of non-recognition is uncertain,103 but the thrust of the inter-
national law position is that in the event of annexation leading to the
continuous and effective control of territory by an aggressor, no prescrip-
tive rights may evolve in favour of the aggressor,104 or be recognized by
the international community.
It remains the best represented of peremptory norms the breach of
which may give rise to non-recognition, and multiple examples may be
cited,105 notably the treatment of the regime in Southern Rhodesia.106
Six days before the issuance of its unilateral declaration of independence
from the United Kingdom, the UN General Assembly adopted a reso-
lution which, inter alia, appealed to all states ‘not to recognize any
government in Southern Rhodesia which is not representative of the
majority of the people’.107 This was supplemented by a series of Security
Council resolutions which fleshed out the extent of the obligation of
non-recognition: states were obliged not to maintain diplomatic rela-
tions with the Southern Rhodesian entity,108 not to recognize the issu-
ance of passports by the entity save on humanitarian grounds,109 to
withdraw consular and trade representation, to deny the legal validity
of all purported public acts of the regime and to reject any claim of

101
Orakhelashvili (2006), 282.
102
GA Res. 3314(XXIX), 14 December 1974, Annex. This clause echoes the earlier Friendly
Relations Declaration, GA Res. 2625(XXV), 24 October 1970, Annex. Further: Dinstein
(2011), 183.
103 104
Blix, (1970) 130 Hague Recueil 587, 662–5. Dinstein (2011), 183.
105
Dawidowicz (2010), 679–82.
106
Generally: Gowlland-Debbas, Collective Responses to Illegal Acts in International Law (1990).
107
GA Res. 2022(XX), 5 November 1965, op. §9.
108 109
SC Res. 217 (1965); SC Res. 288 (1970). SC Res. 253 (1968).
 breaches of communitarian norms 383

membership it made to an international organization.110 These injunc-

tions were generally observed, those states which did not do so – notably
South Africa and Portugal – being the subject of express condemnation
by the Security Council.111
A subsequent episode of collective non-recognition established the
limits on the doctrine. In 1966, the General Assembly decided that South
Africa had failed to fulfil its obligations with respect to the Mandate of
South West Africa (Namibia) through the extension of apartheid to the
region, a policy redolent of racial discrimination accompanied by the
forcible denial of the Mandate’s right to self-determination. On this
basis, the Mandate was terminated.112 South Africa’s continued presence
in the region, however, led to the Security Council to characterize the
situation as one of ‘occupation’,113 and to declare in Resolution 276 of
1970 that ‘the continued presence of the South African authorities in
Namibia is illegal and . . . consequently all acts taken by the Government
of South Africa on behalf of or concerning Namibia after the termination
of the Mandate are illegal or invalid’.114 When this did not provoke the
desired response from South Africa, the Security Council called on all
states ‘to refrain from any relations – diplomatic, consular or otherwise –
with South Africa implying recognition of the authority of the Govern-
ment of South Africa over the Territory of Namibia’.115
Security Council Resolution 284 of 1970 then requested an advisory
opinion from the International Court on the following question: ‘What
are the legal consequences for States of the continued presence of South
Africa in Namibia, notwithstanding Security Council Resolution 276
(1970)’. In the resulting Namibia Advisory Opinion, the Court identified
a customary limit on non-recognition, under which some public acts of
the South African government on behalf of Namibia could be recognized
under international law:
In general, the non-recognition of South Africa’s administration of the Territory
should not result in depriving the people of Namibia of any advantages derived
from international co-operation. In particular, while official acts performed by
the Government of South Africa on behalf of or concerning Namibia after the
termination of the Mandate are illegal and invalid, this invalidity cannot be
extended to those acts, such as, for instance, the registration of births, deaths

110 111
SC Res. 277 (1970). SC Res. 277 (1970), op. §6.
112
GA Res. 2145(XXI), 27 October 1966.
113
SC Res. 264 (1969), preamble. See also Report of the United Nations Council for South
West Africa, 10 November 1967, UN Doc. A/6897.
114 115
SC Res. 276 (1970), §2. SC Res. 283 (1970), §1.
384 collective or ancillary responsibility

and marriages, the effects of which can be ignored only to the detriment of the
inhabitants of the Territory.116

In other words, the Court established that those acts of a non-recognized

regime which are of a wholly internal and private law character – and
the rights and liabilities flowing therefrom – may nonetheless be
recognized.
But the definition of what may be considered to be an internal and
private law right capable of recognition has over time expanded, most
notably in the case law of the European Court of Human Rights in cases
concerning the so-called Turkish Republic of Northern Cyprus (TRNC),117
created following the Turkish invasion of 1974. In Loizidou v. Turkey,
Turkey argued that in order to provide housing for displaced Turkish
Cypriots fleeing from the south, the TRNC was justified in expropriating
the houses of displaced Greek Cypriots. The majority did not reject this
argument outright, but said that in the circumstances the expropriation
was disproportionate.118 The Court went further in Cyprus v. Turkey,
where it accepted that the remedies available in the TRNC were ‘domes-
tic’ remedies provided by Turkey:119
It is to be noted that the International Court’s Advisory Opinion . . . shows clearly
that, in situations similar to those arising in the present case, the obligation to
disregard acts of de facto entities is far from absolute. Life goes on in the territory
concerned for its inhabitants. That life must be made tolerable and be protected
by the de facto authorities, including their courts; and, in the very interest of the
inhabitants, the acts of these authorities related thereto cannot be simply
ignored by third States or by international institutions, especially courts, includ-
ing this one. To hold otherwise would amount to stripping the inhabitants of the
territory of all their rights whenever they are discussed in an international
context, which would amount to depriving them even of the minimum standard
of rights to which they are entitled.120

The Court built on this further in Demopoulos v. Turkey, where access

to the Court was barred under ECHR Article 35(1) on the basis that

116
Namibia, ICJ Rep. 1971 p. 16, 56. Also Loizidou v. Turkey, Merits, (1996) 108 ILR 443, 462.
Generally: Ronen, Transition from Illegal Regimes under International Law (2011), 80–100.
117
SC Res. 541 (1983); SC Res. 550 (1984). Further: Case C-432/92, R v. Minister of Agriculture,
Fisheries and Food; ex parte SP Anastasiou (Pissouri) Ltd, (1994) 100 ILR 257; Loizidou
v. Turkey, Preliminary Objections, (1995) 103 ILR 622; Loizidou v. Turkey, Merits, (1996) 108
ILR 443; Demopoulos v. Turkey, [2010] ECtHR 46113/99. Generally: Ronen (2011), 38–54.
118
Loizidou v. Turkey, Merits, (1996) 108 ILR 443, 468; 474 (Judge Baka, diss.), 481 (Judge
Pettiti, diss.). Further: Foka v. Turkey, [2008] ECtHR 28940/95; Protopapa v. Turkey, [2009]
ECtHR 16084/90.
119 120
(2001) 120 ILR 10, 42–6. Also Loucaides, (2002) 15 LJIL 225. Ibid., 44–5.
 breaches of communitarian norms 385

domestic remedies in the TRNC had not been exhausted.121 The decision
has been criticized, most notably by Loucaides, himself a former judge of
the Court:
It is submitted that [the Namibia] principle . . . was wrongly considered applicable
with respect to the ‘remedies’ provided in the occupied part of Cyprus [in Cyprus
v. Turkey] . . . The principle accepts the recognition of certain everyday transac-
tions that are unavoidable ex necessitate in the daily relations of the individuals.
The opinion does not require the inhabitants of an occupied territory to resort to
illegal remedies established by the de facto organs before they have a right to
bring their case before an international court. As rightly observed by the dissent-
ers in the aforesaid case, ‘Episodic recognition by foreign Courts is one thing. The
exhaustion requirement is another’.122 The Court repeats its misapplication of
the ‘Namibia’ principle in the Demopoulos case and finds that the applicants had to
resort to the ‘Compensation Commission’ in the occupied part of Cyprus for their
complaints.123

11.5.2.2 The obligation of non-assistance

ARSIWA Article 41(2) also articulates an obligation of non-assistance,
which, as the commentary points out, extends not only to assistance
in the commission of the breach, but assistance in maintaining
an internationally unlawful situation that may result:124 this empha-
sizes the ‘effect-oriented or consequential profile of peremptory
norms’.125
A significant question surrounding the duty of non-assistance arose in
the Ferrini case, and its resolution demonstrates those limits to the
obligation that derive from the structure of international law. There,
the Italian Court of Cassation denied immunity to Germany for atrocities
committed in Italy during the Second World War by explicit reference to
ARSIWA Articles 40 and 41.126 According to Bianchi, ‘consideration of
the legal consequences stemming, under the law of State responsibility,
from a serious violation of a ius cogens rule may well lead, by way of
interpretation, to the non-recognition of a State’s jurisdictional immun-
ity’.127 Following the decision in Ferrini, Germany took the matter before
the International Court, arguing inter alia that the Italian decision

121
[2010] ECtHR 46113/99, §§68–129. Further: Ronen (2011), 95; Loucaides (2011) 24 LJIL
435.
122 123
Cyprus v. Turkey, (2001) 120 ILR 10, 119. Loucaides (2011), 446.
124 125
ARSIWA Commentary, Art. 41, §11. Orakhelashvili (2006), 282.
126
Ferrini v. Federal Republic of Germany, (2004) 128 ILR 658, 669.
127
Bianchi, (2005) 99 AJIL 242, 247. See also Orakhelashvili (2006), 283–4.
386 collective or ancillary responsibility

conflated Germany’s procedural right to immunity with the substantive

considerations of peremptory norms. Put another way, the doctrine of
state immunity ousted the jurisdiction of Italy’s national courts before
the issue of peremptory norms could even be considered. In Jurisdictional
Immunities of the State, the International Court agreed:
Assuming for this purpose that the rules of the law of armed conflict which
prohibit the murder of civilians in occupied territory, the deportation of civilian
inhabitants to slave labour and the deportation of prisoners of war to slave labour
are rules of ius cogens, there is no conflict between those rules and the rules on
State immunity. The two sets of rules address different matters. The rules of
State immunity are procedural in character and are confined to determining
whether or not the courts of one State may exercise jurisdiction in respect of
another State. They do not bear upon the question whether or not the conduct in
respect of which the proceedings are brought was lawful or unlawful. That is
why the application of the contemporary law of State immunity to proceedings
concerning events which occurred in 1943–1945 does not infringe the principle
that law should not be applied retrospectively to determine matters of legality
and responsibility . . . For the same reason, recognizing the immunity of a foreign
State in accordance with customary international law does not amount to recog-
nizing as lawful a situation created by the breach of a ius cogens rule, or rendering
aid and assistance in maintaining that situation, and so cannot contravene the
principle in [ARSIWA] Article 41 . . .128

11.5.2.3 The obligation of co-operation

A second consequence of a serious breach of a peremptory norm, as
prescribed in ARSIWA Article 41(1), is that states must engage in lawful
collective action to bring to an end any situation created through the
breach. As Jørgensen notes, Article 41(1) is open to wide interpret-
ation.129 The provision itself makes no presumptions as to the form that
such co-operation should take, a point reiterated in the commentary to
the provision,130 although the obvious co-ordinating force would be the
United Nations, and particularly the Security Council in the exercise of
its powers under Chapter VII of the UN Charter. Thus the International
Court stated in the Wall opinion:
[T]he United Nations, and especially the General Assembly and the Security
Council, should consider what further action is required to bring to an end the

128
Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), ICJ, Judgment, 3
February 2012, §93.
129 130
Jørgensen (2010), 697. ARSIWA Commentary, Art. 41, §2.
 breaches of communitarian norms 387

illegal situation resulting from the construction of the wall and the associated
regime, taking due account of the present Advisory Opinion.131

The wording of the provision suggests that all states are obliged to
co-operate with all ‘lawful’ efforts to abate the situation. As Jørgensen
notes, this may lead to difficulties where there is no obviously affected
state to take the lead, which is frequently the case where the breach
complained of is the gross and systemic abuse of human rights within a
state: although states may independently of each other comply with the
obligations of non-recognition and non-assistance under ARSIWA Article
41(2), they remain in breach of Article 41(1).132 Another difficulty lies in
assessing what is considered ‘lawful’ within international law, particu-
larly where questions relating to the use of force and humanitarian
intervention are concerned: what some states consider lawful, others
may not, leading to a situation in which, pending an authoritative
determination of legality which seldom emerges with immediacy, either
the parties to the adventure are in breach of international law, or their
detractors are acting contrary to the precepts of Article 41(1).
But another substantial difficulty with the entire concept of conse-
quences for the serious breach of peremptory norms exists. It may be
seen reflected in the history of UN action in relation to the Middle
East following the 1967 war. At an emergency situation in 1967, the
General Assembly expressed deep concern at Israel’s actions in placing
Jerusalem under common civil administration tantamount to annex-
ation.133 In 1979, the Security Council determined ‘that the policy
and practices of Israel in establishing settlements in the Palestinian
and other Arab territories since 1967 have no legal validity and consti-
tute a serious obstruction to achieving a comprehensive, just and
lasting peace in the Middle East’,134 and called on Israel ‘to cease, on
an urgent basis, the establishment, construction and planning of
settlements in the Arab territories occupied since 1967, including
Jerusalem’.135
When these resolutions were formally rejected by Israel, the Security
Council, in a series of 1980 resolutions under Chapter VI of the Charter,
declared Israel to be in belligerent occupation of East Jerusalem, the Gaza

131 132
ICJ Rep. 2004 p. 136, 200. Jørgensen (2010), 697.
133
GA Res. 2253(ES-V), 4 July 1967; GA Res. 2254(ES-V), 4 July 1967; cf. 10 July 1967, UN
Docs. A/6753 and S/8052 (Israeli submissions that its actions did not amount to
annexation of Jerusalem).
134 135
SC Res. 446 (1979), §1. SC Res. 452 (1979), §2.
388 collective or ancillary responsibility

Strip, the West Bank and the Golan Heights.136 Notably, it affirmed that
Israel’s attempts to alter the character of Jerusalem were in violation of
international law,137 and that any law passed by Israel in an attempt to
further this objective was to be considered ‘null and void’ as a matter of
international law.138 Furthermore, it determined that the Israeli practice
of settling its own citizens within the Occupied Territories in a bid to
control the demography of these regions ‘constitute[d] a flagrant violation
of the Geneva Convention relative to the Protection of Civilian Persons in a
Time of War’139 and called on all states ‘not to provide Israel with any
assistance to be used specifically in connexion with settlements in the
occupied territories’.140 The General Assembly rounded the early part of
the 1980s out with a series of its own resolutions variously characterizing
certain of Israel’s actions as ‘acts of aggression’ that should not be recog-
nized,141 and contrary to the right of self-determination of the Palestinian
people.142 All such injunctions were rejected by Israel.
Israel’s actions led to considerable tension between it and the Arab
population of the Occupied Territories, leading to the formation of insur-
gency organizations such as the Palestine Liberation Organization (PLO),
Hamas and the Popular Front for the Liberation of Palestine (PFLP). These
movements waged a sustained and violent campaign against the Israeli
state in the form of two ‘shakings off’ or ‘Intifada’ from 1987 to 1993 and
2000 to 2005. In the middle of the Second Intifada, Israel, in an effort to
prevent Palestinian dissidents from entering Israel, began the construction
of a wall around the Occupied Territories. This proposed barrier roughly
reflected the course of the Green Line running between Israel and the
occupied West Bank, but in practice it ran virtually wholly within the
Palestinian areas occupied by Israel, in places encroaching into those areas
by over 20 km. Moreover, it included on the western (i.e. Israeli) side of the
barrier many of the Israeli settlements in the West Bank, as well as East
Jerusalem; it ran through Palestinian lands often separating them from
their owners; and while it included checkpoints through which Palestin-
ians and their goods could pass, the way these were operated made them a
serious obstruction to the Palestinians’ freedom of movement.143

136
SC Res. 476 (1980); SC Res. 478 (1980). See also GA Res. 36/120E, 10 December 1981; GA
Res. 37/123C, 16 December 1982; GA Res. 39/146C, 14 December 1984.
137 138 139
SC Res. 478 (1980), §2. Ibid., §3. SC Res. 465 (1980), §5.
140 141
Ibid., §7. GA Res. 37/123A, 18 December 1982.
142
GA Res. 36/226A, 17 December 1981; GA Res. 39/146A, 14 December 1984.
143
See further Watts, ‘Israeli Wall Advisory Opinion (Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory)’, (2007) MPEPIL, §3.
 breaches of communitarian norms 389

With this in mind, the General Assembly requested an advisory opin-

ion from the International Court as to the legality of ‘the Wall’ in
international law.144 In the Wall Advisory Opinion, the Court found the
barrier to be contrary to international law, and called on states to bring
to an end the situation which had developed as a consequence.145 But
despite the Court’s injunctive remarks, the continuing presence of Israel
in the Occupied Territories has, in many respects, been met with silence,
and in some cases continued material support.146 Although the General
Assembly subsequently called on all members ‘to comply with their legal
obligations as mentioned in the Advisory Opinion’,147 the Security Coun-
cil has taken no action with respect to the matter, and no state under-
took to alter its behaviour towards Israel, even with respect to the
provision of aid.
As noted by the Court in its Namibia Advisory Opinion, ‘the qualifica-
tion of a situation as illegal does not by itself put an end to it. It can only
be the first, necessary step in an endeavour to bring the illegal situation
to an end.’148 ARSIWA Article 41 can only do so much to redress the
breach of peremptory norms: when all is said and done, the political will
to enforce international law must be present.

11.6 Future prospects

Ever since the Court’s dictum in Barcelona Traction, the concept of obliga-
tions erga omnes has been fascinating international lawyers,149 despite
Simma’s observation that it remains in ‘the world of the “ought” rather
than that of the “is”’.150 The same can be held true for the whole
category of communitarian norms and the invocation of responsibility
for their breaches on the international plane.
Like Article 53 of the Vienna Convention, Article 48 of the ILC Articles
was established more on a priori grounds than on the basis of established
practice. It is true that there was more to go on, including references to
the concept of obligations erga omnes by the International Court. Of

144 145
GA Res. ES-10/14, 8 December 2003. ICJ Rep. 2004 p. 136, 199–200.
146
For one potential example, see the 1995 EC–Israel Association Agreements, which apply
preferential treatment to the export of goods produced in the West Bank and Gaza
Strip: Hauswaldt, (2003) 14 EJIL 591.
147 148
GA Res. ES-10/15, 20 July 2004, §3. Namibia, ICJ Rep. 1971, p. 16, 52.
149
Tams, Enforcing Obligations Erga Omnes in International Law (2005), xv.
150
Simma, in Delbrück and Heinz (eds.), The Future of International Law Enforcement: New
Scenarios – New Law? (1993) 125.
390 collective or ancillary responsibility

particular value were the analogies to be drawn from the Vienna

Convention itself in its handling of multilateral treaties. The two instru-
ments deal with different questions – on the one hand the existence,
meaning and application of a treaty obligation, on the other hand, the
existence and consequences of its breach.151 But they are closely related
and a co-ordinated approach is clearly necessary.
Article 48 of the ILC Articles may turn out to be like VCLT Article 53 in
other respects as well. Just as peremptory norms have been invoked on
only a handful of occasions, so, too, is it likely that Article 48 will not be
relied on very often. Most substantive multilateral issues are regulated
by multilateral treaties which contain their own (usually generous) pro-
visions for invocation, as for example under the WTO Agreements.152
The question – as with treaty reservations – is: what is the default rule?
In the South West Africa cases the Court in effect announced that the
default rule even in the case of treaties protecting some wider public
interest is a narrow one, influenced by bilateral conceptions of injury.
The Court in Barcelona Traction repudiated that view. The initial version
of what became Article 48 – Draft Article 40 adopted on first reading –
took an erratic approach, in part motivated by similar restrictive
assumptions. It is true that human rights were separately treated. But
no secure justification was given for this, and the provision was corres-
pondingly vulnerable. In returning to the broader approach of the Court
in Barcelona Traction the ILC has not solved all the problems of interpret-
ation, but it has put the basic framework in place for the law of standing
in the public interest.

Excursus: international crimes of state

ARSIWA’s drafting history and surrounding debates show that the con-
cept of international criminal responsibility on the part of states
developed closely intertwined with the other two grandes verticales, per-
emptory norms and obligations erga omnes. Although the ARSIWA ultim-
ately omitted any reference to state crimes, such that it remains a purely
theoretical construct, it would be incomplete to discuss the law of

151
Of course the ARSIWA also deal with breaches of non-treaty obligations. But they follow
the tradition of parallelism: prima facie there is no difference between breaches of treaty
and of general international law. See ARSIWA Commentary Art. 2, §7.
152
See EC – Bananas III, WT/DS27/AB/R, 25 September 1997, §135: ‘a Member has broad
discretion in deciding whether to bring a case against another Member under the DSU’.
 breaches of communitarian norms 391

obligations without giving some account of the rise and fall of this
controversial category of responsibility.153
Allusion has already been made to the beginnings of the ILC’s engage-
ment with the concept of state crimes, and its provisional acceptance
of the idea in 1976, when it described state crimes and the standard
delictual international responsibility of states as ‘completely different
regimes’.154 An attempt at articulating the distinction was made
in Special Rapporteur Ago’s Draft Article 19, which included the
following:
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 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.

By contrast, international delicts were defined in purely negative

terms in Draft Article 19(4).155
Draft Article 40, first adopted in 1985, set out an extended definition
of the ‘injured State’, linking the internationally wrongful act of a state

153
See generally Weiler, Cassese and Spinedi (eds.), International Crimes of State (1989); de
Hoogh (1996); Jørgensen (2000); Koskenniemi, in Crawford, Pellet and Olleson (2010)
45, 48–9; Crawford, (2010) 405; Cassese, in Crawford, Pellet and Olleson (2010) 415.
The principal Commission reports dealing with international crimes are: Ago, Fifth
Report, ILC Ybk 1976/II(1), 24–54; Riphagen, Third Report, ILC Ybk 1982/II(1), 48–50;
Riphagen, Fourth Report, ILC Ybk 1983/II(1), 10–24; Arangio-Ruiz, Seventh Report, ILC
Ybk 1995/II(1), 3; Arango-Ruiz, Eighth Report, ILC Ybk 1996/II(1), 1; Crawford, First
Report, 9–23.
154
ILC Ybk 1976/II(1), 26.
155
For the commentary on Draft Art. 19 see ILC Ybk 1976/II(2), 95–122.
392 collective or ancillary responsibility

under Part I to the consequences of that act in Part II. Paragraph 2

articulated a non-exclusive list of situations in which a state or states
might have a right correlative to the obligation breached, and paragraph
3 then provided that ‘[i]n addition, “injured State” means, if the inter-
nationally wrongful act constitutes an international crime, all other
States’.
In 1996 the ILC adopted certain limited consequences of ‘State crimes’,
in Draft Articles 51–53, based largely on drafts proposed during the
1980s. At the same time the ILC added a footnote to Draft Article 40(3)
which spoke volumes about the underlying lack of consensus on the
issue:
The term ‘crime’ is used for consistency with article 19 of part one of the articles.
It was, however, noted that alternative phrases such as ‘an international wrong-
ful act of a serious nature’ or ‘an exceptionally serious wrongful act’ could be
substituted for the term ‘crime’, thus, inter alia, avoiding the penal implication of
the term.156

The international criminal responsibility regime proposed in the 1996

Draft Articles provoked a barrage of criticism and debate.157 This focused
particularly on Draft Article 19, which threatened to cause more confu-
sion than it resolved with its circularity and its vague specification of
situations which ‘may result’ in an international crime.158 Its relation-
ship with the definition of ‘injured state’ in Draft Article 40 was also
unclear, and relationships between different provisions of Draft Article
40 itself were problematic, for example between paragraphs 2(e)(iii) and
(3).159 The consequences for commission of an international crime were
not sufficiently differentiated from those for commission of any other
internationally wrongful act to live up to the claim that these were two
completely different regimes of responsibility,160 and there were no

156
ILC Ybk 1996/II(2), 63.
157
See generally Spinedi, in Weiler, Cassese and Spinedi (1989) 7, 45ff; Crawford, First
Report, esp. government comments on both sides of the debate at 11–16; ILC Ybk 1998/
II(2), 64–77.
158
Crawford, First Report, 10–11.
159
Under Draft Articles, Art. 40(2)(e)(iii), breaches of multilateral conventional or
customary obligations protecting human rights and fundamental freedoms gave rise to
standing on the part of any state party to the convention or bound by the custom.
However, it was unclear how this recognition of general interest related to Draft
Articles, Art. 40(3), as a single instance of breach would not meet the definition of
‘crime’ in Draft Articles, Art. 19 as requiring ‘serious breach on a widespread scale’. See
further Crawford, (2006) 319 Hague Recueil 325, 452–77.
160
Crawford, First Report, 9, 11.
 breaches of communitarian norms 393

procedures for determining whether a crime had been committed and

what consequences should follow.161
Several states objected to the ‘penalization’ of international law, find-
ing it repugnant to the whole notion of an international legal system
based on sovereign equality, as had Anzilotti.162 A review of state prac-
tice showed limited and inconsistent support for criminalizing acts of
states, as opposed to the strong system of individual criminal responsi-
bility which has developed under international law since the Second
World War.163
In 1998 the ILC decided to set consideration of Draft Article 19 aside
and focus on finding a solution that would enable greater consensus,
through ‘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 international obliga-
tion’.164 The question of state crimes was next addressed in 2000. Con-
sideration of a number of different alternatives165 led to a compromise
that resulted in the removal of the notion of state crimes altogether,
with the deletion of Draft Article 19 (and accordingly also Draft Articles
51–53). Instead, Part II, Chapter III provides a special regime of responsi-
bility arising in the case of a ‘serious breach by a State of an obligation
arising under a peremptory norm of general international law’ (Article
40(1)). The distinction between the status of the obligation and the
seriousness of the breach is made clear in Article 40(2), which defines
‘serious’ as involving a gross or systematic failure by the responsible
state to fulfil the obligation.166 Thus a minor breach of a peremptory
norm will not engage responsibility under this provision; nor will a
serious breach of an ‘ordinary’ obligation, which resolves an issue that
was fraught during the drafting of the Articles.167 Article 41 sets out the
particular consequences of a breach within the meaning of Article 40.
A proposal to include provision for damages ‘reflecting the gravity of the
breach’ did not survive, as states were concerned that it had a penal
character.168 The description of the injured state is now dealt with in

161 162
Ibid. Anzilotti (1902); see further Nolte, (2002) 13 EJIL 1083.
163 164
Crawford, First Report, 16–17. ILC Ybk 1998/II(2), 77.
165
For detailed analysis see Crawford, First Report, 19–23.
166
See ARSIWA Commentary, Art. 40.
167
Some have questioned whether it was necessary to retain the word ‘serious’ in Art.
40(1), however: see Gaeta, in Crawford, Pellet and Olleson (2010) 421.
168
This was provisionally adopted in 2000: see Crawford, Third Report, 107–8. See further
Wittich, in Crawford, Pellet and Olleson (2010) 667.
394 collective or ancillary responsibility

Articles 42 and 48, discussed above, which clearly differentiate between

breaches of bilateral and multilateral obligations.169
The story of Draft Article 19 affords insights into the process and role
of codification of customary international law. It is easier to agree on the
existence of a category in the abstract than to define its contents and
consequences – the proposed definition of an international crime
amounted to no more than the admission of a possibility – but in the
case of international crimes of state, it was generally felt that Article 19
was an exercise in development of the law rather than codification, and
the world was not ready.170 For the time being, then, the notion of state
crimes remains a dormant legal concept (although it may still operate as
a rhetorical one). Rather than existing in its own right, it has been
broken down into distinct components related to peremptory norms
and obligations erga omnes and effectively spread through ARSIWA, so
as to provide a more broadly acceptable framework of responsibility with
one single regime for all internationally wrongful acts. This result was
unequivocally confirmed by the International Court in the Bosnian Geno-
cide case in 2007.171

169
See further Gaja, in Crawford, Pellet and Olleson (2010) 941.
170
See Crawford, (2006) 319 Hague Recueil 325, 453–5.
171
Bosnian Genocide, ICJ Rep. 2007 p. 43, 113–19 (esp. §170).
12 Ancillary and secondary responsibility

12.1 Responsibility of states for the conduct of other states

and international organizations
12.1.1 The scope of ancillary or secondary responsibility
In accordance with the general principle stated in ARSIWA Article 2,
state responsibility arises when conduct attributable to a state
breaches an international obligation of that state. But there may be
cases where conduct of one state, not acting as an organ or agent of
another state, is nonetheless chargeable to the latter state, even
though the wrongfulness of the conduct lies, or at any rate primarily
lies, in a breach of the international obligations of the former. Chapter
IV of Part One of the ARSIWA seeks to define the exceptional cases
where this is so.
Three situations are covered in Chapter IV. ARSIWA Article 16 deals
with what in national law would be termed ‘complicity’, that is, where
one state provides aid or assistance to another state, thereby facilitat-
ing the commission of a wrongful act by the latter. ARSIWA Article 17
deals with cases where one state is responsible for the internationally
wrongful act of another state because it has assumed powers of direc-
tion or control over the latter, for example by treaty or as a result of
belligerent occupation of the latter’s territory. ARSIWA Article 18
deals with the extreme case where one state deliberately coerces
another into committing an act which is or (but for the coercion)
would be an internationally wrongful act on the part of the coerced
state.
In all three cases, the act in question is still committed, voluntarily or
otherwise, by organs or agents of the acting state, and is (or but for the

395
396 collective or ancillary responsibility

coercion, would be1) a breach of that state’s international obligations.

The ‘implication’ of the second state in that breach arises from the
special circumstance of its willing assistance in, its direction or control
over, or its coercion of the conduct of the acting state. But there are
also important differences between the three cases. Under ARSIWA
Article 16, the primary wrongdoer is the acting state and the assisting
state has a supporting role. By contrast, in the case of coercion under
ARSIWA Article 18, the coercing state is the fons et origo of the conduct,
and the coerced state is its instrument. As formulated, ARSIWA
Article 17 deals with cases where direction or control has actually been
exercised by the dominant state, with the subordinate state merely
following orders.
With the approval of the Draft Articles of the Responsibility of Inter-
national Organizations (DARIO)2 by the ILC, an additional layer of com-
plexity has been added: DARIO Part V deals with analogous situations in
which a state’s ancillary or secondary responsibility is generated by
virtue of the acts of an international organization.3 DARIO Article 58 is
the equivalent to ARSIWA Article 16, and considers situations of compli-
city as between a state and international organization. DARIO Article 59
is the analogue of ARSIWA Article 17, and deals with situations in which
a state directs or controls an international organization. Finally, DARIO
Article 60, like ARSIWA Article 18, addresses the coercion of an inter-
national organization by a state.
The DARIO, however, deal with two addition situations which, strictly
speaking, do not generate ancillary or secondary responsibility for states,
but which it is nonetheless convenient to address in this chapter. DARIO
Article 61 preserves state responsibility in cases where a state seeks to
circumvent its international obligations through the use of an inter-
national organization as a buffer or cat’s paw. DARIO Article 62 deals
with the individual responsibility of state members of an international
organization more generally, and describes two situations in which
members may be held so responsible notwithstanding the separate legal
personality of the organization.

1
This qualification is necessary because, if a state really has been coerced, the
wrongfulness of its act may be precluded by force majeure. Further: Chapter 9.
2
ILC Report 2011, UN Doc. A/66/10, Ch. V. For an overview of the DARIO see Pronto, (2011)
36 S. Af. YIL 94.
3
This gap was deliberately left in the ARSIWA, Art. 57 stating that the articles were
‘without prejudice to any question of the responsibility . . . of any State for the conduct of
an international organization’.
 ancillary and secondary responsibility 397

12.1.2 The standards of direction and control and coercion

Leaving aside for now the notion of aid and assistance as provided for in
ARSIWA Article 16, the concept that would later underpin ARSIWA
Articles 17 and 18 (as well as DARIO Articles 59 and 60) was known in
Ago’s shorthand as ‘indirect responsibility’.4 Since the beginning of the
twentieth century, however, the notion demonstrated a marked theoret-
ical inconsistency, switching between the so-called ‘representation
theory’ on the one hand, and the ‘control theory’ on the other, with
the latter eventually emerging as the principal conceptual basis for the
relevant provisions.5
The representation theory of indirect responsibility was spelled out by
Anzilotti6 in 1902. In brief, it posited that a state which was responsible
for the international representation of another state in foreign affairs
could, as a consequence, be held internationally responsible for the
delicts of the representee. His justification for the position was as
follows:
When a country has accepted the supremacy of another State, but without being
completely absorbed into it, it retains its international personality and continues
to be a separate subject of international law in its relations with other States; the
rules of international law prohibiting any act injurious to another State then
apply to it as to any other person under international law: it is therefore capable
of engaging in an activity contrary to the duties imposed on it by international
law, but, as it cannot enter into relations with the injured or offended State, the
latter must address itself to the State which represents it, and the duty to redress
the damaged caused rests with that State.7

Anzilotti’s position attracted support for some time.8 It was incorporated

into the 1929 Harvard Research Draft on the Responsibility of States for
Damage Done in Their Territory to the Person or Property of Foreigners,9
which provided in Article 3 as follows:
A State is not relieved of responsibility because an injury to an alien is attribut-
able to one of its political subdivisions . . . For the purpose of this article, a
dominion, a colony, a dependency, a protectorate or a community under

4 5
ILC Ybk 1979/II(2), 4. Ibid., 4–26.
6
See e.g. Anzilotti, (1902); Anzilotti (1906); Anzilotti, Corso di diritto internazionale (3rd edn,
1928), 473.
7
Anzilotti (1906), 301.
8
See e.g. Borchard (1916), 201–2; Fauchille, 1 Traité de droit international public (8th edn,
1922), 523; Verdross, (1929) 30 Hague Recueil 271, 465. It was also reflected in the views of
the Institut de droit international: (1927) 33 Ann. de l’Inst. 488.
9
(1929) 23 AJIL Spec. Supp. 133. Further: Crawford and Grant (2007).
398 collective or ancillary responsibility

mandate, which does not independently conduct its foreign relations, is to be

assimilated to a political subdivision.

The position also influenced the jurisprudence of the Permanent Court

of International Justice, which in Mavrommatis Palestine Concessions
remarked:
The obligations resulting from these engagements are therefore obligations
which the Administration of Palestine must respect; the Mandatory is inter-
nationally responsible for any breach of them since, under Article 12 of the
Mandate, the external relations of Palestine are handled by it.10

Despite early support for Anzilotti’s position, it came under critical

scrutiny in the 1930s when it was pointed out that the mere fact of
representation did not prevent injured parties from addressing claims to
the state so represented. Ago was subsequently to note:
The mere existence of the international representation relationship between
[State] A and [State] B has no consequences for third States except that their
relations with the represented State are conducted through the representing
State: there is nothing to prevent the represented State from making such
reparation through the representing State.11

The replacement for the representative theory was the control theory,
which held that responsibility can only be attributed indirectly where
one state acts so as to compromise the decision-making capacity of
another state.12 Although present in the commentaries of the late nine-
teenth century,13 it was developed further in the twentieth, with Eagle-
ton remarking:
[I]f one State controls another in any circumstances which might prevent the
latter from discharging its international obligations, the basis of a responsibility
of the protecting State for the subordinating State is laid. Responsibility must be
located in each separate case by ascertaining the actual amount of freedom from
external control, or, conversely, the actual amount of control left, to the
respondent State.14

As Ago pointed out,15 Eagleton’s development of control theory pre-

sented a far more credible basis for responsibility than the simple formal

10
Mavrommatis Palestine Concessions, (1924) PCIJ Ser. A No. 2, 23.
11
ILC Ybk 1979/II(1), 7. Earlier: Ago, La responsabilità indiretta nel diritto internazionale (1934),
30ff. On the failed attempt to refocus the representative theory by Verdross, see ILC Ybk
1979/II(2), 7–9.
12 13
ILC Ybk 1979/II(2), 13. See e.g. de Martens, 1 Traité de droit international (1883), 379.
14 15
Eagleton (1928), 43. ILC Ybk 1979/II(2), 13.
 ancillary and secondary responsibility 399

question of representation. This was to be Ago’s central contribution

to the question: to classify the various forms of relationship that
might compromise a state’s freedom to decide to such an extent that
responsibility could be imputed to another. These would eventually
evolve into the recognized standards of direction and control and out-
right coercion.

12.2 Aid or assistance in the commission of a breach16

ARSIWA Article 16 provides as follows:
A State which aids or assists another State in the commission of an internation-
ally 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.

Literally interpreted, ARSIWA Article 16 posits a rather extensive

principle of responsibility of one state for the acts of another. It treats
as wrongful any aid or assistance rendered for the commission of an
internationally wrongful act carried out by the second state – in other
words, it seeks to regulate complicity and is often referred to by this
rubric,17 although the term itself does not appear in order to prevent
the drawing of parallels with municipal criminal law.18 Unlike its
predecessor, Draft Article 27, Article 16 stipulates a ‘mental element’
which must be fulfilled if international responsibility is to accrue:
the state must render the aid or assistance with knowledge of the
circumstances of the internationally wrongful act. Significantly, it is
distinct from the concept of joint responsibility as developed in
ARSIWA Article 47, and represents an autonomous internationally
wrongful act on its own.19

16
Generally: Brownlie (1983), 189–92; Quigley (1986); Noyes and Smith (1988); Graefrath
(1996); Padelletti, Pluralità di Stati nel Fatto Illecito Internazionale (1990); Lowe, (2001) 101
KGZ 1; Dominicé (2010); Aust (2011).
17
E.g. Aust (2011). See also the remarks of Graefrath (1996), 371:
the term complicity so far has been used in international relations in the
political field. It has a pejorative connotation and denounces an act as illegal
because it is part of another illegal act or in support of a crime. It always
designates a form of participation and derives the moral condemnation from
the illegality of the principal act.
18
Graefrath (1996), 370–1.
19
Ibid., 371–2. Further: ILC Ybk 1978/II(2), 104; ARSIWA Commentary, Art. 16, §1.
400 collective or ancillary responsibility

12.2.1 ILC development and customary status

ARSIWA Article 16 had a difficult birth, and multiple iterations of the
provision were presented to the ILC over its twenty-five-year gestation.20
Its most concrete iteration prior to the final version was Draft Article 27,
which provided on first reading:
Aid or assistance by a State to another State, if it is established that it is rendered
for the commission of an internationally wrongful act, carried out by the latter,
itself constitutes an internationally wrongful act, even if, taken alone, such aid or
assistance would not constitute a breach of an international obligation.

This wording proved controversial, and many states registered their

disapproval. Perhaps the most strident was Switzerland, which stated
that Draft Article 27 ‘had no basis in positive law’ and should be
deleted.21 Other states – notably Germany22 and the United States23 –
queried whether international law was capable of giving effect to the
concept of ‘aid and assistance’ and further asserted that even if it was,
more precision was required of the term ‘rendered for the commission’
and for the necessary element of intent. Others were more favourable to
the principle: the United Kingdom, for example, supported the basic
notion of Draft Article 27 but called for a clearer distinction between
cases in which complicity was independently wrongful and those in
which it was not.24
On second reading it was agreed that the Draft Article should be
retained but that further precision was required.25 Wording close to that
of ARSIWA Article 16 was proposed26 and eventually approved by the
Commission with only minor additional modification.27 The most sig-
nificant addition was that of paragraph (b), which was included to ensure
that states would only be found complicit where they themselves were
bound by the obligation violated by the party to which aid or assistance
was rendered.
20
See: Crawford, Second Report, 47–51. Further: Aust (2011), 100–3.
21
ILC Ybk 1998/II(1), 128. Earlier, Switzerland had queried the status of the provision as a
primary rule and asserted that it was too broad: ILC Ybk 1981/II(1), 77.
22 23
ILC Ybk 1998/II(2), 128. Ibid., 129.
24
On the basis that if wrongfulness was independent of any additional act by the state
immediately responsible, Draft Art. 27 was redundant: ibid., 128–9. Japan also called for
a clearer definition of the principle in general: ILC Ybk 1999/II(2), 107.
25
Crawford, Second Report, 51.
26
Ibid., 56. The principal difference between the 1999 iteration of Draft Art. 27 and
ARSIWA, Art. 16 was that the former included situations in which one state ‘directs or
controls’ another state. This was later removed and placed into ARSIWA, Art. 17.
27
Aust (2011), 102–3.
 ancillary and secondary responsibility 401

Although at the time ARSIWA Article 16 was seen by some as falling

within the ‘progressive development’ part of the ILC’s mandate,28 the
International Court considered in Bosnian Genocide that the provision had
attained the status of customary international law.29 Although there had
previously existed sui generis injunctions against the rendering of aid or
assistance, such as the Friendly Relations Declaration30 and the Defin-
ition of Aggression31 as promoted by the UN General Assembly, and
Article 2(5) of the UN Charter, Article 16 provided a framework by which
complicity could be prohibited generally, and it has been treated as such
in subsequent state practice.32

12.2.2 Defining ‘aid or assistance’

12.2.2.1 The terms of ARSIWA Article 16
The first question to be answered in any application of ARSIWA Article
16 is whether the state in question has rendered ‘aid or assistance’ to
another state in the commission of an internationally wrongful act. Put
another way, the question is one of how the assistance rendered relates
to the wrongful act.

28
See e.g. the comments of Special Rapporteur Ago when introducing the first version of
Draft Art. 27 in his Seventh Report: ILC Ybk 1978/II(1), 59: ‘In any event, we believe we
can at least support our position on this point by evoking the intention of progressive
development by which, it seems, the international community must necessarily be
guided in the matter.’ This had altered by the final adoption of the ARSIWA: ARSIWA
Commentary, Art. 16, §7: ‘State practice supports assigning international responsibility
to a State which deliberately participates in the internationally wrongful conduct of
another through the provision of aid or assistance.’ Also Quigley (1986), 81–107;
Padelletti (1990), 94.
29
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 217. This conclusion had
already been reached much earlier with respect to Draft Art. 27 by Judge Schwebel in a
dissenting opinion: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
US), ICJ Rep. 1986 p. 14, 558 (Judge Schwebel, diss.). Mr Schwebel had previously chaired
the drafting committee which gave the Draft Article its final form on the first reading:
ILC Ybk 1978/I, 269.
30
GA Res. 2625(XXV), 24 October 1970, Principle 1, §9: ‘Every State has the duty to refrain
from organizing, assisting or participating in acts of civil strife or terrorist acts in other
States or acquiescing in organized activities within its territory directed towards the
commission of such acts.’
31
GA Res. 3314(XXIX), 14 December 1974, Annex, Art. 3(f), defining as aggression ‘[t]he
action of a State in allowing its territory, which it has placed at the disposal of another
State, to be used by that other State for perpetrating an act of aggression against a third
State’.
32
On the development of ARSIWA, Art. 16 as a customary rule, see generally Aust (2011),
Ch. 4.
402 collective or ancillary responsibility

Neither the provision itself nor the ILC’s commentary thereto provides
a substantial definition of the concept, though there was some discus-
sion of the matter within the ILC.33 Ushakov during the Commission’s
1978 session described the problem of a definition as follows:
[P]articipation must be active and direct. It must not be too direct, however, for
the participant then became a co-author of the offence, and that [goes] beyond
complicity. If, on the other hand, participation [is] too indirect, there might be no
real complicity. For instance, it would be difficult to speak of complicity in an
armed aggression if the aid and assistance given to a State consisted in supplying
food to ensure the survival of the population for humanitarian reasons.34

No limitation is placed on the precise form of the aid or assistance in

question – all that is required is a causative contribution to the illegal
act.35 In the Commentary to Draft Articles adopted on first reading, the
ILC provided that ‘the aid or assistance must have the effect of making it
materially easier for the State receiving the aid or assistance in question
to commit an internationally wrongful act’.36 Reservations were raised37
during the second reading over this definition due to the concern that
the qualifier ‘materially’ could cause confusion with the notion of
‘material breach’ in Article 60 of the Vienna Convention on the Law of
Treaties (VCLT).38 What was clear, however, was that the assistance
rendered did not need to have been indispensable to the commission of
the wrongful act. To impose such a requirement would invite specula-
tion as to other contingencies and would be difficult to apply.39 That
said, suitably involved ‘assistance’ may result in a finding of joint respon-
sibility under ARSIWA Article 47, a point emphasized by Brownlie in the
context of aggression:
[T]he supply of weapons, military aircraft, radar equipment, and so forth, would
in certain situations amount to ‘aid or assistance’ in the commission of an act
of aggression but would not give rise to joint responsibility. However, the supply
of combat units, vehicles equipment and personnel, for the specific purpose of
assisting an aggressor, would constitute a joint responsibility.40

Beyond this point, however, confusion emerges. It was established on

adoption of the ARSIWA that ‘the aid or assistance must be given with a

33
Aust (2011), 195–7.
34
ILC Ybk 1978/I, 239. Also ibid., 229 (Reuter); ibid., 233 (Riphagen). Further: ILC Ybk 1999/
I, 79 (Simma).
35 36 37
Lowe (2001), 5–6. ILC Ybk 1978/II(2), 99ff. Crawford, Second Report, 50.
38
22 May 1960, 1155 UNTS 331.
39 40
Crawford, Second Report, 50. Also Quigley (1986), 121–2. Brownlie (1983), 191.
 ancillary and secondary responsibility 403

view to facilitating the commission of the act and must actually do so’.41
Thus the ILC Commentary states that assistance must be ‘clearly linked’
to the wrongful act, and make a ‘significant’ contribution to it.42 But the
commentary seems internally inconsistent, providing later that ‘the
assistance may have only been an incidental factor in the commission
of the primary act, and may have contributed only to a minor degree, if
at all, to the injury suffered’.43 This discrepancy may be resolved by
reference to the position taken by the ILC in relation to the Draft Articles
on the Responsibility of International Organizations (DARIO). In its com-
mentary to DARIO Article 14, the equivalent to ARSIWA Article 16, the
Commission expressly links the two provisions before drawing attention
to the need for ‘significant’ assistance in relation to the latter44 – the
required standard would therefore appear to be one of substantial
involvement on the part of the complicit state.
In an analysis of the concepts of ‘assistance’ as manifested in sui generis
regimes,45 Aust concludes that state practice tends to indicate that ‘the
majority of States are eager to limit the concept of assistance to cases in
which active participation is given’.46 Thus mere incitement will not be
considered a violation of ARSIWA Article 16,47 although, as Ago noted in
his Seventh Report, it may infringe other rules of international law.48

12.2.2.2 Omissions as ‘aid or assistance’

Omissions may also be excluded as a form of aid or assistance.49 In
Bosnian Genocide the Court remarked:
[C]omplicity always requires that some positive action has been taken to furnish
aid or assistance to the perpetrators of genocide, while a violation of the obliga-
tion to prevent results from the 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; this is merely a reflection of the notion that the ban on genocide
and the other acts listed in Article III [of the Genocide Convention], including
complicity, places States under a negative obligation, the obligation not to

41 42 43
ARSIWA Commentary, Art. 16, §5 (emphasis added). Ibid. Ibid., §10.
44
ILC Report 2011, 104.
45
E.g. the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer
of Anti-Personnel Landmines and Their Destruction, 18 September 1997, 2056 UNTS 211;
Convention on Cluster Munitions, 30 May 2008, CCM/77; Treaty on the Non-Proliferation
of Nuclear Weapons, 1 July 1968, 729 UNTS 161.
46 47 48
Aust (2011), 209. Dominicé (2010), 285. ILC Ybk 1978/II(1), 54–5.
49
This displaces the general presumption contained in ARSIWA, Art. 2, which provides
that state responsibility may be incurred through an omission.
404 collective or ancillary responsibility

commit the prohibited acts, while the duty to prevent places States under a
positive obligation, to do their best to ensure that such acts do not occur.50

Aust attempts to cast doubt on the absolute character of this pronounce-

ment by reference to Corfu Channel.51 There, the United Kingdom alleged
that the Albanian state was responsible for the explosion of several
contact mines in the Corfu Channel in 1946. As a result of the incident,
HMS Volage was severely damaged and HMS Saumarez crippled beyond
repair. Forty-four servicemen were killed and forty-two injured.52
A question which remained unresolved when the matter was brought
before the Court was exactly who laid the mines. Albania, which lacked a
navy, clearly could not have done so.53 The United Kingdom alleged that
Albania was nonetheless complicit in the damage caused on the basis
that the state knew of the minefield but failed to inform the UK flotilla.54
The Court found that the failure to warn was an internationally wrong-
ful act, and found Albania responsible accordingly,55 a determination
that Aust recasts as ‘the quintessential aid or assistance to the State
which laid the mines’.56 He dismisses the fact that the Court predicated
its findings on the basis of Albania’s primary responsibility57 rather than
some form of accessory liability as evidence of judicial economy: ‘a
separate responsibility for complicity would not then be needed as the
complicit State was already obliged to warn third States on the basis of
an independent primary obligation’.58 But if such an interpretation were

50
Bosnian Genocide, ICJ Rep. 2007 p. 43, 222–3.
51
Aust (2011), 225–30, citing Corfu Channel (UK v. Albania), ICJ Rep. 1949 p. 4.
52
Further: Jones, (1949) 26 BYIL 447; Maher, (2005) 9 AJLH 47.
53
It is widely assumed that Yugoslavia – an absent and unnamed third party – laid the
mines in the context of its conflict with Greece: Chinkin (1993), 319.
54
ICJ Pleadings 1949-I p. 19, 48:
The responsibility of Albania rests, firstly, upon a direct complicity in the existence
of the minefield which is created by her knowledge of it, whether or not she laid it
or connived in its actual laying. Secondly, it rests upon a failure – which was, in the
submission of the Government of the United Kingdom, a wilful failure to discharge
an imperative international duty to notify the existence of this dangerous
minefield. Thirdly, it rests upon the failure of the Albanian authorities to warn His
Majesty’s ships of their danger when they were seen to be approaching it.
55 56
ICJ Rep. 1949 p. 4, 22–3. Aust (2011), 227. Also Orakhelashvili (2010), 658.
57
ICJ Rep. 1949 p. 4, 22:
[Albania’s obligations arise from] certain general and well-recognized principles,
namely: elementary considerations of humanity, even more exacting in peace
than in war; the principle of the freedom of maritime communication; and every
State’s obligation not to allow knowingly its territory to be used for acts
contrary to the rights of other States.
58
Aust (2011), 227.
 ancillary and secondary responsibility 405

ever plausible, it must be reviewed in the light of the strong dictum of

the Court in Bosnian Genocide: seen through this lens, Corfu Channel is
reflective of an exercise in joint responsibility under ARSIWA Article 47,
and the ILC Commentary treats it in this way.59

12.2.2.3 ‘Aid or assistance’: general principles?

What abstract principles may therefore be drawn from the terms ‘aids or
assists’ as they occur in ARSIWA Article 16? First, the complicit state
must make some contribution to the wrongful act, though it need not be
essential. Second, the contribution must be in the form of a positive act:
neither active incitement nor a mere omission will suffice to ground
responsibility. Third, despite some inconsistency within the ARSIWA
Commentary, comparison with the DARIO Commentary reveals that
the assistance rendered must be ‘significant’. Fourth, if sufficiently
significant, then the contributing state’s role may transcend that of mere
complicity, and the state may become jointly responsible for the act
under ARSIWA Article 47.
Beyond this, little more can be said with certainty. It is perhaps better
to say on this point, as Aust does, that aid or assistance ‘is a normative
and case-specific concept, meaning that its content will always have to be
determined in the specific situation’.60 Certainly, this is the view that
has been taken with regard to DARIO Article 14 (and by extension DARIO
Article 58). Special Rapporteur Gaja remarked in his Seventh Report:
One difficulty in defining more precisely aid or assistance in the commission of
an internationally wrongful act is that, for the purpose of assessing whether aid
or assistance occurs, much depends on the content of the obligation breached
and on the circumstances. Thus, it seems preferable not to modify the wording
that was used in [ARSIWA Article 16].61

12.2.3 The ‘subjective’ element of complicity

Given the potential breadth of the phrase ‘aid and assistance’, the essen-
tial element in defining complicity lies in the question of intent.62 Read
with the commentary, ARSIWA Article 16 lists two limitations that
together amount to a ‘subjective’ or ‘mental’ element. Although this
proved controversial within the ILC,63 state aversion to the notion of
59 60
ARSIWA Commentary, Art. 47, §8. Further: Chapter 11. Aust (2011), 230.
61 62
UN Doc. A/CN.4/610, §75. Graefrath (1996), 374–6.
63
Aust (2011), 232–5. See e.g. Njenga, arguing that ‘too narrow a definition [of intent]
would nullify the scope of the article . . . [n]o State would admit that it was helping
406 collective or ancillary responsibility

strict liability in relation to complicity64 compelled the inclusion of

subjective considerations in the wording of ARSIWA Article 16, a point
recognized early by Ago:
The very ‘idea’ of complicity in the internationally wrongful act of another
necessarily presupposes an intent to collaborate in the commission of an act of
this kind, and hence, in the cases considered, knowledge of the specific purpose
for which the State receiving supplies intends to use them. Without this condi-
tion, there can be no question of complicity.65

The first limitation occurs in the words of ARSIWA Article 16(a), which
requires that the complicit state commit the relevant aid or assistance
‘with knowledge of the circumstances of the internationally wrongful
act’. The converse of this is stated expressly in the terms of the commen-
tary itself: ‘[i]f the assisting or aiding State is unaware of the circum-
stances in which its aid or assistance is intended to be used by the other
State, it bears no international responsibility.’66 Despite the attempts of
some states to widen the scope of the mental element to include not only
actual but constructive knowledge67 (i.e. the complicit state should have
known that it was assisting in the commission of an internationally
wrongful act), the wording of the provision is confined to knowledge
actually in the possession of the complicit state.
The second limitation is not contained within the wording of ARSIWA
Article 16, but revealed in the commentary, which states:
[A]id or assistance must be given with a view to facilitating the commission of the
wrongful act, and must actually do so. This limits the application of article 16 to
those cases where the aid or assistance given is clearly linked to the subsequent
wrongful conduct. A State is not responsible for aid and assistance under article
16 unless the relevant State organ intended, by the aid or assistance given, to

another State to commit a wrongful act’: ILC Ybk 1978/I, 236. Cf. Schwebel, noting that
‘Hitler’s plan of aggression had been published in explicit detail’: ibid., 237. Others
found the inclusion to be redundant, arguing that ‘aid and assistance’ already presumed
the existence of knowledge: ILC Ybk 1999/I, 70 (Brownlie).
64 65
Crawford, Second Report, 49–50. ILC Ybk 1978/II(1), 58.
66
ARSIWA Commentary, Art. 16, §4.
67
See e.g. the statement of the Netherlands: ILC Ybk 2001/II(1), 52. See also, earlier, the
statements of Ustor in the ILC, proposing that (ILC Ybk 1975/I, 48):
separate provision be made for the important case of oblivious complicity
by a State which consented to the use of its territory for the commission of
unlawful acts against a third State. There was similar complicity when a State
should have known in advance that its territory would be used for an unlawful
purpose by the organs of another State admitted to that territory.
 ancillary and secondary responsibility 407

facilitate the occurrence of the wrongful conduct and the internationally wrong-
ful conduct is actually committed by the aided or assisted State.68

Leaving aside the purely factual question of whether the assistance so

rendered facilitated the commission of the wrongful act, this second
element is sufficient to eclipse entirely the requirement of knowledge,
as an overt intention to assist presupposes knowledge of assistance. It
has arguably been accepted into the customary ambit of complicity by
the International Court, which remarked in Bosnian Genocide:
[T]here is no doubt that the conduct of an organ or a person furnishing aid or
assistance to a perpetrator of the crime of genocide cannot be treated as complicity
in genocide unless at the least that organ or person acted knowingly, that is to say,
in particular, was aware of the specific intent . . . of the principal perpetrator.69

The Court went on to state that it considered there to be little doubt

that the crimes perpetrated at Srebrenica were committed as a result of
equipment and resources provided as part of a general policy of ‘aid
and assistance’ by the Federal Republic of Yugoslavia (FRY) towards the
Republika Srpska, but concluded that complicity could not be made out,
as it could not be proved that the FRY supplied aid to the perpetrators of
the genocide ‘in full awareness that the aid supplied would be used to
commit genocide’.70
The passages in the Bosnian Genocide judgment in which ARSIWA
Article 16 was applied by analogy reveal several aspects of the require-
ments of knowledge and intent. In the first place, ‘[t]he standard
required by [Article 16] – as applied by the [Court] – is one of specific
knowledge of the alleged accomplice, crucially of an internationally
wrongful act with a high degree of particularity’.71 In the second, the
use of the term ‘at the least’ by the Court in Bosnian Genocide indicates
that, as a general rule, something more than mere knowledge is
required, namely the need for actual intent that aid and assistance be
given to the illegal act.72
Some commentators have expressed concerns that the subjective elem-
ent to ARSIWA Article 16 as so formulated narrows unduly the scope of
complicity, possibly to the point of rendering the concept ‘unwork-
able’.73 Quigley identifies two principal difficulties.74 First, it is difficult

68 69
ARSIWA Commentary, Art. 16, §5. ICJ Rep. 2007 p. 43, 218 (emphasis added).
70 71 72
Ibid., 218–19. Dominicé (2010), 286. Aust (2011), 236.
73
Graefrath (1996), 375. Further: Quigley (1986), 109–17; Orakhelashvili (2010), 650–1.
See also Aust (2011), 235–7.
74
Quigley (1986), 111.
408 collective or ancillary responsibility

to determine the mind of a state – if a complicit state is aware of what it

is doing, it may attempt to conceal the provision of aid, possibly through
the dissemination of conflicting statements by multiple organs. Second,
the complicit state may not in fact desire the illegal result, and instead be
animated by some other motive – in such a case, it is argued, even if the
assisting state knew of the use to which the aid was put but did not
intend the outcome, it could not be held complicit. Graefrath gives the
following example:
According to that definition e.g. a State supplying arms to Turkey under the
condition that they not be used to suppress the Kurds cannot be held guilty of
complicity if afterwards the weapons were used for exactly that purpose. Even
supplying arms knowing that Turkey may use them against the Kurds would not
be sufficient to prove the intent required for complicity.75
By way of counter-argument, the requirement of outright intent in order
to establish complicity is justified by the character of interstate relations
and the great diversity of situations which may arise, particularly in the
context of military bases, airspace or the use of territory generally.76
Additionally, as the first reading commentary may be taken as indicat-
ing, if aid is given with certain or near-certain knowledge as to the
outcome, intent may be imputed.77 It is thus wrong to suggest that the
complicit state must be in common cause with the principal in order for
ARSIWA Article 16 to apply.78
But, more fundamentally, complaints about the need for intent in
complicity are misplaced. The provision for complicity in the ARSIWA
was (at least initially) a measure of progressive development on the part
of the ILC. To complain about the manner in which the ILC has limited
complicity is to ignore the fact that ARSIWA Article 16 is still a substan-
tial advance of the concept in international law79 – though it could be
fairly argued that the requirement of actual intent should have been
inserted into the text of the provision, rather than elaborated in the
commentary. Second, and more substantially, the limitation exists for
a reason. If it is true that ARSIWA Article 16 is intended to develop the
law, then it must do so in a manner acceptable generally to governments.
It was sensible not to advance a relatively novel principle potentially
detrimental to state sovereignty in its broadest possible form.80
75 76
Graefrath (1996), 373. Crawford, Second Report, 50. Also Dominicé (2010), 286.
77 78 79
ILC Ybk 1978/II(2), 99–105; Lowe (2001), 8–9. Lowe (2001), 6–9. Ibid., 12.
80
Aust (2011), 238: ‘Such an interpretation would be detached from international practice
and would give rise to expectations on the establishment of responsibility for complicity
which are not warranted.’
 ancillary and secondary responsibility 409

12.2.4 Complicity and the pacta tertiis rule

ARSIWA Article 16(b) requires that ‘the act would be internationally
wrongful if committed by [the aiding or assisting] State’. Thus, if compli-
city is to be found, the aiding or assisting state must be bound by the rule
that the main actor is violating. The commentary81 links this require-
ment to the pacta tertiis principle.82 It is of central importance to the
provision, but emerged only during the second reading. Draft Article 27
on first reading provided that complicity would give rise to responsibility
‘even if, taken alone, such aid or assistance would not constitute the
breach of an international obligation’. This, it was felt, was a bridge too
far, as it would have enabled an aiding and assisting state to be held
independently liable for the breach of a bilateral treaty to which it was
not itself a party.83 In addition, it ran the risk of straying beyond the
mandate that the ILC had set itself with regard to the codification of state
responsibility and creating a new primary rule,84 by establishing new
obligations incumbent on states in the first instance.
Although generally welcomed by the ILC,85 some members considered
paragraph (b) to be an overly broad restriction. Economides was most
vocal in this respect, noting that the provision
considerably reduced, without good reason, the scope of application of [Draft
Article 27]. It did not exclude bilateral obligations alone. It also excluded multi-
lateral obligations by which the aiding or assisting State was not bound. The
condition was not necessary, since it was most unlikely that a State would
knowingly and deliberately help another State to breach its bilateral or multilat-
eral treaty obligations.86

Such criticisms overstate the effects of ARSIWA Article 16(b). Within

its ambit are peremptory norms, obligations erga omnes and the entire
corpus of customary international law.87 While issues do arise with

81
ARSIWA Commentary, Art. 16, §6.
82
See VCLT, Arts. 34 (‘A treaty does not create either obligations or rights for a third State
without its consent’) and 35 (‘An obligation arises for a third State from a provision of a
treaty if the parties intend the provision to be the means of establishing the obligation and
the third State expressly accepts that obligation in writing’). Further: David, in Corten and
Klein (2011) 887.
83
Crawford, Second Report, 50–1; Dominicé (2010), 286.
84
ILC Ybk 1999/I, 68 (Crawford).
85
See e.g. ILC Ybk 1999/I, 70 (Simma); ibid., 70 (Brownlie); ibid., 71 (Rosenstock); ibid., 74
(Hafner).
86
Ibid., 68. Also Lowe (2001), 7; Orakhelashvili, in Crawford, Pellet and Olleson (2010) 347,
351–3.
87
ILC Ybk 1999/I, 69 (Crawford); ibid., 70 (Simma).
410 collective or ancillary responsibility

respect to multilateral agreements, the pacta tertiis rule provides ample

justification for the restriction.
Take the case of a bilateral treaty between state A and state B under
which the two states agree not to export certain materials or technology
to, or not to trade with, state C. In the language of municipal trade
practices law, this is a secondary boycott. State C, as target, is of course
not bound by the agreement, pursuant to VCLT Article 34. Why, then,
should it be held responsible if, knowing of the treaty, it assists state A in
breaching it? Without the inclusion of paragraph (b), ARSIWA Article 16
could become a vehicle by which the effects of well-publicized bilateral
obligations are given universal extension. This position is surely differ-
ent from a situation in which the assisting state is bound by the relevant
primary rule, for example where a state bound by the Treaty on the Non-
Proliferation of Nuclear Weapons aids another state in obtaining
weapons in violation of the treaty.
It has been suggested that Article 16(b) would allow an otherwise
complicit state to escape responsibility by arguing that it is bound by a
different rule from the one breached by the assisted state. Thus Aust
suggests:
Although the aiding and assisting State would not technically be barred from
granting such support, it is reasonably clear that through its conduct it will harm
a third State (or . . . an individual protected by the given human rights treaty).
Moreover, the State would have to rely on the purely formal argument that,
although it is contributing to a violation of a rule to which it is bound, it could
avoid responsibility due to the rule in question being laid down in differing
sources.88

But this misreads Article 16(b), which merely requires that the conduct
in question would have been internationally wrongful if committed by the
assisting state and says nothing about the identity of norms or sources.

12.2.5 Complicity and international organizations

This analysis of ARSIWA Article 16 also applies, mutatis mutandis,89 to the
case of DARIO Article 58.90 The provision reads as follows:
1. 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:

88
Aust (2011), 264–5.
89
Sarooshi, International Organizations and Their Exercise of Sovereign Powers (2005), 64.
90
Ryngaert and Buchanan (2011), 142–3.
 ancillary and secondary responsibility 411

(a) the State does so with knowledge of the circumstances of the inter-
nationally wrongful act; and
(b) the act would be internationally wrongful if committed by that State.
2. An act by a State member of an international organization done in
accordance with the rules of the organization does not as such engage
the international responsibility of that State under the terms of this
article.

DARIO Article 58(1) mirrors exactly the wording of ARSIWA Article 16,
and thus includes the same requirements of knowledge and the pacta
tertiis qualification, a link drawn expressly in the ILC Commentary.91 But
paragraph 2 contains no analogue in ARSIWA Article 16. It represents an
effort on the part of the ILC to ensure that responsibility does not follow
automatically where a state is directed to do something by an inter-
national organization,92 at least in ancillary cases. But as the commen-
tary to the provision makes clear, the fact that ancillary responsibility is
not generated where a state follows the directive of an international
organization does not necessarily exclude all forms of state
responsibility:
The fact that a State does not per se incur international responsibility for aiding or
assisting an international organization of which it is a member when it acts in
accordance with the rules of the organization does not imply that the State would
then be free to ignore its international obligations. These obligations may well
encompass the conduct of a State when it acts within an international organiza-
tion. Should a breach of an international obligation be committed by a State in
this capacity, the State would not incur international responsibility under the
present article, but under the articles on the responsibility of States for inter-
nationally wrongful acts.93

There is minimal state practice supporting DARIO Article 58 as a rule of

customary international law. But it seems likely that such a rule should
exist as a matter of principle. If, as was noted in Bosnian Genocide,94
ancillary responsibility as between states may be considered a customary
norm, there is no reason why the same logic should not apply as between
a state and any other actor on the international plane. This point is made

91 92
DARIO Commentary, Art. 58, §1. Ibid., §4.
93
Ibid., §5. The ‘rules of the organization’ referred to in DARIO, Art. 58(2) are defined in
DARIO, Art. 2(b) as ‘in particular, the constituent instruments, decisions, resolutions,
and other acts of the international organization adopted in accordance with those
instruments, and established practice of the organization’.
94
ICJ Rep. 2007 p. 43, 217.
412 collective or ancillary responsibility

expressly in the commentary, which notes: ‘[t]he present article uses the
same wording as [ARSIWA Article 16] because it would be hard to find
reasons for applying a different rule when the aided or assisted entity is
an international organization rather than a State’.95
The ILC has been criticized as taking an unduly narrow view of ‘aid or
assistance’ in the context of DARIO Article 58. In particular, commen-
tators complain that states will not be held accountable for their votes
for or against the individual policies of the entity, which may impact on
vulnerable populations, particularly where the organization in question
is a large financial institution such as the World Bank or the Inter-
national Monetary Fund.96 Aside from fact that a broader definition of
aid or assistance in the present context would risk a wave of abstentions
within the voting patterns of international organizations (and an accom-
panying crisis of legitimacy), these objections, as with criticisms of
ARSIWA Article 16, miss the point. DARIO Article 58, at least at this
stage, is representative of the ‘progressive development’ aspect of the
ILC’s mandate. If it is to become accepted as a codification of custom, it
must be presented in such a way as to be palatable to governments
generally. Attempting to hold states liable for individual votes – and
thereby undermining the raison d’être of separate legal personality – is
not the way to go about this.

12.3 Direction and control over another state or

international organization
12.3.1 The scope and relevance of ARSIWA Article 17
ARSIWA Article 17 provides as follows:
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 inter-
nationally wrongful act; and
(b) that act would be internationally wrongful if committed by that State.

95
DARIO Commentary, Art. 58, §3. The same may be said of responsibility for aid and
assistance as between two international organizations: see DARIO, Art. 14.
96
Clark, (2002) HHRJ 205, 213; d’Aspremont, (2007) 4 IOLR 91, 98; Ryngaert and Buchanan
(2011), 143.
 ancillary and secondary responsibility 413

Unlike ARSIWA Article 16 or DARIO Article 58, in which international

responsibility is incurred only to the extent of any aid or assistance so
given, Article 17 entails the responsibility of the directing state for the
act itself.97 On the first reading of the Draft Articles, direction and
control was contained within Draft Article 28(1), with paragraph (2) of
the provision dealing with outright coercion as between states. The two
were later separated conceptually into ARSIWA Articles 17 and 18.98
When first set down, Draft Article 28(1) was intended to encompass
situations in which there was a relationship of dependence between one
state and another, so as to warrant treating the dominant state as respon-
sible for the wrongful acts of the dependent state.99 The first reading
commentary pointed to three situations in which these might arise:
(a) international dependency relationships, especially ‘suzerainty’ and
international protectorate;
(b) relationships between a federal State and member States of a federation
which have retained their own international personality; and
(c) relationships between an occupying State and an occupied State in cases
of territorial occupation.100

At the time (1977), the ILC considered this field to be ‘the most realis-
tic’ of the cases in which one state might have been responsible for the
wrongs of another.101 By the time of the second reading (1998), however,
its utility had diminished considerably.102 The mandate system of the
League of Nations and the trusteeship regime of the UN had run their
course,103 and aside from the Swiss cantons104 there are no remaining
examples of a federated state with sovereign constituent elements. The
relevance of the provision is maintained, however, by its applicability to
situations of belligerent occupation.
The situations so contemplated are distinct from those situations of
pure representation, where one state has assumed, even exclusively,
responsibility for representing another state in international relations,

97 98
ARSIWA Commentary, Art. 17, §1. Crawford, Second Report, 56–7.
99 100
Ibid., 52. Draft Articles Commentary, Art. 28, §10.
101
Ibid. Further: ILC Ybk 1979/II(2), 4–26.
102
Crawford, Second Report, 53; ARSIWA Commentary, Art. 17, §3. Also ILC Ybk 1998/I,
129 (comments of France).
103
See further Duursma (1996) for details in relation to the European micro-states, all of
which are now members of the UN.
104
Schmitt, in Basta-Fleiner and Fleiner (eds.), Federalism and Multi-Ethnic States: The Case of
Switzerland (2000) 165. Although the Canadian provinces, US states, and German länder
have also concluded individual treaties with other states proper, these do not have the
same measure of constitutional independence: Di Marzo, (1978) 16 Can. YIL 197.
414 collective or ancillary responsibility

but without any power of direction or control over the decision-making

process of the dependent state,105 as with Italy and San Marino, Switzer-
land and Liechtenstein, and New Zealand and various South Pacific
island nations.106 As the commentary to Draft Article 28 emphasized,
in pure cases of representation the represented entity remains respon-
sible for its own international obligations, even where diplomatic com-
munications may be channelled through another state.107 They are
further distinct from situations in which the constituent elements of a
federal state do not possess separate legal personality, even where they
possess internal autonomy, as in the case of Quebec or Scotland. In such
cases the normal principles of attribution as set out in ARSIWA Part One,
Chapter II will apply,108 as demonstrated by LaGrand109 and Avena.110

12.3.2 Defining ‘direction and control’

ARSIWA Article 17, in requiring that the directing state ‘directs and con-
trols’ another state in the commission of an internationally wrongful act,
sets a relatively high bar for the imputation of state responsibility. ‘Direc-
tion’ and ‘control’ in this instance are separate concepts, with the former
referring to ‘actual direction of the operative kind’ and the latter encom-
passing ‘cases of domination over the commission of wrongful conduct’:111
put another way, the wrongful act must be conceived and carried out at the
instigation of the directing power. Both direction and control must be
present for ARSIWA Article 17 liability to attach. The existence, however,
of a quasi-functional state apparatus in the occupied territory will not
exclude the possibility of control by the occupying power.112

105
Draft Articles Commentary, Art. 28, §§5–8.
106
See e.g. the New Zealand–Western Samoa Treaty of Friendship, 1 August 1962, 435 UNTS
3, Art. V. New Zealand also maintains similar relations with the Cook Islands and Niue.
Both the Cook Islands and Niue are self-governing states in free association with New
Zealand whose respective constitutions expressly vest full legislative powers exclusively
in their legislatures. New Zealand, however, retains representative capacity for the
purposes of external affairs: Constitution of Niue, ss. 6, 8; Constitution of the Cook
Islands, s. 5. Further: NZ Ministry of Justice and NZ Ministry of Pacific Island Affairs, Pacific
People’s Constitution Report (2000), Ch. 3, available at www.justice.govt.nz/publications/
publications-archived/2000/pacific-peoples-constitution-report-september-2000.
107
Draft Articles Commentary, Art. 28, §4.
108
Generally: Opeskin, (1996) 43 NILR 353; Opeskin, in Opeskin and Rothwell (1997) 1.
109
LaGrand (Germany v. US), Provisional Measures, ICJ Rep. 1999 p. 9, 16.
110
Avena and Other Mexican Nationals (Mexico v. US), Provisional Measures, ICJ Rep. 2003 p. 77, 82.
111
ARSIWA, Art. 17, §7.
112
Thus the continued existence of a Hungarian government (the Pfeilkreuz movement
under Ferenc Szálasi) was not definitive proof that the expropriation of Jewish property
 ancillary and secondary responsibility 415

As we have seen, the ILC had certain defined categories of interstate

relationship in mind when it first considered Draft Article 28(1). As it
stands, in the modern era only belligerent occupation may be expected to
arise with any frequency.113 The mere fact, however, of a contemplated
relationship will not automatically give rise to a finding of direction and
control. What is required, rather, is the fact of actual direction and
control over the delictual act.114 Responsibility will not be imputed
under the provision where the directing state merely had the potential
for control, or where that control was not exercised in that particular
case. Nor would such a situation be desirable, as it would place a pre-
mium on intervention in the affairs of ‘dependent’ states which are, ex
hypothesi, still responsible for their own wrongful acts.115
The limited number of cases in which the direction and control stand-
ard of ARSIWA Article 17 has been deployed render it difficult to deter-
mine its scope of operation, as well as its status (or not) as custom.116 A key
example, however, is the Robert E. Brown case,117 a decision of the Great
Britain–United States Claims Commission concerning a claim of denial of
justice by a US national against Great Britain with respect to acts per-
formed by the government of South Africa. It was argued that the relevant
imputation was justified by Great Britain’s status as ‘suzerain’ over South
Africa, a status acquired gradually through a variety of conventions118
and acts of annexation.119 The Commission disagreed, noting:
We may grant that a special relation between Great Britain and the South African
State, varying considerably in its scope and significance from time to time,
existed from the beginning. No doubt Great Britain’s position in South Africa
imposed upon her a peculiar status and responsibility. She repeatedly declared
and asserted her authority as the so-called paramount Power in the region; but

was not under Nazi control: Restitution of Household Effects Belonging to Jews Deported from
Hungary (Germany), (1965) 44 ILR 301, 340–2.
113
Recent instances include Iraq, Yugoslavia, the DRC, Eritrea and, most significantly,
Palestine: Dinstein, The International Law of Belligerent Occupation (2009), 8–30.
114
Crawford, Second Report, 53–4; ARSIWA Commentary, Art. 17, §6.
115
ILC Ybk 1999/I, 55 (Crawford); Crawford, Second Report, 54.
116
Though its presence in the ARSIWA on second reading was greeted with little in the way
of formal protest: ILC Ybk 1998/I, 129.
117
Robert E. Brown (United States) v. Great Britain, (1923) 6 RIAA 120.
118
See: Great Britain–Transvaal Boers, Convention of Peace, Commerce, Slave Trade, etc.,
17 January 1852, 107 CTS 299; Great Britain–Transvaal Burghers, Pretoria Convention,
3 August 1851, 159 CTS 57; Convention between Great Britain and the South African
Republic for the Settlement of the Transvaal Territory, 27 February 1884, 163 CTS 345.
119
Initial annexation occurred in 1877, with definitive annexation following in 1900 during
the Boer War: Dugard, International Law: A South African Perspective (3rd edn, 2005), ch. 2.
416 collective or ancillary responsibility

the authority which she exerted over the South African Republic certainly at the
time of the occurrences here under consideration, in our judgment fell far short
of what would be required to make her responsible for the wrong inflicted upon
Brown.120

The Commission examined the particulars of Great Britain’s suzerainty

over South Africa, noting that at the time of the events in question, its
control as provided by the 1884 Pretoria Convention was qualified:
nowhere did that treaty bestow on Britain ‘any right to interest herself
in the internal administration of the country, legislative, executive or
judicial; nor is there any evidence that Great Britain ever did undertake
to interfere in this way’.121 Thus suzerainty ‘did not operate to render
Great Britain liable for the acts complained of’.122
A further example is Heirs of the Duc de Guise,123 a decision of the
Franco-Italian Conciliation Commission, which held that Italy was
responsible for a requisition carried out in Sicily at a time at which the
island was under Allied occupation. The Commission, in denying Allied
responsibility, pointed to the absence of ‘intermeddling on the part of
the Commander of the Occupation forces or any Allied authority calling
for the requisition decrees’.124 The mere potential for Allied control over
Italian operations did not provide a sufficient basis for responsibility to
be attributed to anyone else than Italy.

12.3.3 Additional considerations

12.3.3.1 Knowledge and opposability of obligation
ARSIWA Articles 17(a) and (b) impose two additional requirements if a
directing state is to be found liable for acts of direction and control.
These are identical to the requirements of ARSIWA Article 16125 and are
established for the same reasons: an aversion to strict liability in situ-
ations of ‘indirect’ responsibility and the need to preserve the pacta tertiis
rule. Under paragraph (a), the directing state must have knowledge of
the internationally wrongful act. Under paragraph (b), the directing state
must be bound by the obligation it has transgressed. The requirement of
knowledge may give rise to substantial evidentiary difficulties if respon-
sibility is to be made out – the requirement of opposability, however,
may give rise to a presumption of knowledge in the event of breach.126

120 121 122

(1923) 6 RIAA 120, 130. Ibid., 131. Ibid.
123
Différend Héritiers de SAR Mgr le Duc de Guise (France v. Italy), (1951) 13 RIAA 150.
124 125 126
Ibid., 161. Crawford, Second Report, 54. Dominicé (2010), 288.
 ancillary and secondary responsibility 417

12.3.3.2 Responsibility of the directed state

Clearly, ARSIWA Article 17 will result in the responsibility of the
directing state. A question remains, however, as to that of the state so
directed. Ago was clearly of the view that responsibility could not flow to
the directed state simply by reason of the responsibility of the directing
state for the act in question. He noted:
In none of the cases . . . was there any question of responsibility being attributed,
in one and the same case, to both the dominant State and the dominated State,
the suzerain State and the vassal State, the occupying State and the occupied
State or the State which exerted coercion and the State subjected to coercion. Nor
was the ‘indirect’ responsibility of a State presented in any case as being merely
‘subsidiary’ to the ‘direct’ responsibility which an internationally wrongful act
will always entail for the State that committed it, irrespective of the conditions in
which that act may have been perpetrated. In other words, whenever a State has
been held indirectly responsible for the act of another State, the former has
always been required to answer in place of the second and not in parallel with it.127
Acting under the influence of direction or control, however, does not
constitute an excuse within the meaning of ARSIWA Part I, Chapter V,
and if a directed state carries out the direction in question, it may
nonetheless incur primary responsibility of its own,128 a fact made clear
by the wording of ARSIWA Article 19:
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.
As the commentary notes, ‘[t]he defence of “superior orders” does not
exist for States in international law’.129 If a directed state is to escape
liability, it will therefore need to establish the existence of a separate
circumstance precluding wrongfulness, for example force majeure.

12.3.4 Direction and control of an international organization

DARIO Article 59 transplants the wording and reasoning of ARSIWA
Article 17 and applies it to situations in which a state engages in the
direction or control of an international organization.130 It provides:
1. 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:

127 128
ILC Ybk 1979/II(1), 25–6; Dominicé (2010), 288. Crawford, Second Report, §55.
129
ARSIWA Commentary, Art. 17, §10.
130
DARIO Commentary, Art. 59, §1. Further: Ryngaert and Buchanan (2011), 139–40.
418 collective or ancillary responsibility

(a) the State does so with knowledge of the circumstances of the inter-
nationally wrongful act; and
(b) the act would be internationally wrongful if committed by that State.

2. An act by a State member of an international organization done in accord-

ance with the rules of the organization does not as such engage the international
responsibility of that State under the terms of this article.

Again, the extent of the borrowing between ARSIWA Article 17 and

DARIO Article 59(1) is evident. As is pointed out in the commentary,
‘[t]here are no reasons for making a distinction between the case in
which a State directs and controls another State in the commission of
an internationally wrongful act and the case in which the State similarly
directs and controls an international organization.’131 In any case, the
circumstances in which such an event could arise would appear to be
rare: ‘[i]t is all in all rather exceptional that members would have at their
disposal means – legal or others – enabling them to exercise a decisive
influence on the organization’s behaviour.’132
DARIO Article 59(2) replicates the terms of DARIO Article 58(2). Direc-
tion or control occasioned by the internally lawful application of the
rules of an international organization will not give rise to responsibility
under the terms of Article 59(1). As with its Article 58(2) counterpart,
Article 59(2) will not prevent the identification of a wrongful act based
on an ordinary breach of an international obligation under the terms of
the ARSIWA. This provision has been the cause of some complaint, on
the basis that in certain international organizations, some states exercise
such an influence on the internal decision-making processes of the
organization that the organization’s behaviour reflects little more than
the directed will of that state, as in the case of the US influence over
NATO, or the Soviet Union’s hold over the former Warsaw Pact. It has
been suggested that, in such cases, responsibility be sheeted home to the
directed state,133 although there is little in the way of state practice to
indicate that this is anything more than a proposition de lege ferenda.134

131
DARIO Commentary, Art. 59, §3. For the case of direction and control between two
international organizations, see DARIO, Art. 15.
132
Sands and Klein (eds.), Bowett’s Law of International Institutions (6th edn, 2009), 528.
133
D’Aspremont (2007), 101; Ryngaert and Buchanan (2011), 140.
134
However, attention might be drawn to an incident in which the United States directly
engaged with the Chinese government in order to compensate the latter for the
accidental bombing of its embassy in Belgrade by NATO forces: Gazzini, (2001) 12 EJIL
391, 424–5; Ryngaert and Buchanan (2011), 140.
 ancillary and secondary responsibility 419

12.4 Coercion of a state or international organization

ARSIWA Article 18 provides as follows:
A State which coerces another State to commit an act is internationally respon-
sible 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.

This third species of indirect responsibility therefore results from the

coercion exercised by one state over another in order to compel the latter
to breach an obligation owed to another.

12.4.1 Defining ‘coercion’

State practice surrounding this notion is predictably scant, but the ILC
nonetheless managed to construct a coherent notion of ‘coercion’
by linking it to the concept of force majeure as contained in ARSIWA
Article 23:
Coercion for the purpose of article 18 has the same essential character as force
majeure under article 23. Nothing less than conduct which forces the will of the
coerced State will suffice, giving it no effective choice but to comply with the
wishes of the coercing State. It is not sufficient that compliance with the obliga-
tion is made more difficult or onerous, or that the acting State is assisted or
directed in its conduct: such questions are covered by the preceding articles.
Moreover, the coercing State must coerce the very act which is internationally
wrongful. It is not enough that the consequences of the coerced act merely make
it more difficult for the State to comply with the obligation.135

Given the relatively high bar set by the commentary, it is unsurprising

that ARSIWA Article 18 has attracted little or no notice. Two examples,
however, were mentioned in the commentary to Draft Article 28(2) on its
first reading,136 and should be mentioned.
The first is the Shuster case.137 The matter arose out of a decision by the
Persian government to employ William Morgan Shuster, a US national,
as Treasurer-General, so as to ‘restore that government to an economic
basis consonant with its dignity as a member of the family of nations’.138
Interested parties in this process included Russia and the United King-
dom, which, as part of the ‘Great Game’, had divided Persia into Russian,

135 136
ARSIWA Commentary, Art. 18, §2. Draft Articles Commentary, Art. 28, §26.
137 138
Generally: Bouvé, (1912) 6 AJIL 389. Ibid., 391.
420 collective or ancillary responsibility

British and neutral zones.139 When Morgan acted contrary to Russian

interests, Russia landed some 8,000 troops in Persia, marched south, and
forced the Persian government – following a coup d’état – to break its
contract of employment with Shuster in December 1911.140 The Persian
government later compensated Shuster on its own recognizance, and the
matter was never the subject of adjudication, but commentators at the
time considered Russia liable for the Persian breach:
[T]he responsibility for tortious acts committed in the territory of a state which is
sovereign on paper only, and perpetrated at the arbitrary dictation of a superior
Power, supported by threats of invasion or actual invasion, is not to be avoided by
the real author of the wrong merely because not committed within the territorial
limits of the latter, and not carried out through the immediate intervention of its
own officials. In other words, the existence of sovereignty, shadowy though it is,
in the innocent state, does not negative the idea of responsibility on the part of
the government whose act is, in fact, the direct cause of the injury.141

The second instance identified by the ILC was the Romano-Americana

Company case,142 which concerned the destruction of facilities owned
by a US oil company in Romania on the eve of the German invasion of
1916. The facilities were destroyed on the orders of the Romanian gov-
ernment, but in the aftermath of the First World War, the United States
took steps to bring a claim for compensation against Great Britain, on
the putative basis that the latter had ‘compelled’ Romania to act as it did.
Great Britain denied the claim on the basis that it had taken no action
beyond urging the Romanian government to destroy the facilities in
order to further the interests of itself and the Entente.143 The United
States appears to have accepted that British instigation was insufficient
to create a basis of liability,144 and redirected its claim to Romania,
which accepted responsibility.
139
Convention between Great Britain and Russia relating to Persia, Afghanistan and Tibet,
31 August 1907, 204 CTS 404.
140
For Shuster’s view of events, see Shuster, The Strangling of Persia: A Record of European
141
Diplomacy and Oriental Intrigue (1912). Bouvé (1912), 400.
142
Generally: Hackworth, 5 Digest of International Law (1943), 702.
143
See the letter from HM Foreign Office of 5 July 1928 (ibid., 704):
His Majesty’s Government do not deny that, in company with the French and Russian
Governments, they urged the Roumanian Government, through their accredited
representative in Bucharest, to make the fullest use of the powers assumed by them
early in the campaign to prevent the enemy from obtaining the means of prolonging a
war disastrous alike to all involved in it at that time, but I must reaffirm that they could
not and did not in any way go beyond the limits of persuasion and good counsel as
between governments associated in a common cause.
144
ILC Ybk 1979/II(1), 24.
 ancillary and secondary responsibility 421

The contrast between the two cases demonstrates an admittedly wide

spectrum along which coercion may be held to occur within the meaning
of ARSIWA Article 18. In Shuster, the Persian government clearly had no
other (realistic) option in the face of Russian aggression but to terminate
its Treasurer-General’s contract. Conversely, diplomatic pressure (how-
ever significant) brought to bear on Romania in Romano-Americana was
acknowledged by the relevant parties to be insufficient.
A subsidiary consideration concerns the type of coercive force suffi-
cient to give rise to responsibility under ARSIWA Article 18. Clearly, the
threat or use of armed force as deployed in the Shuster case would be
sufficient. But other forms of duress – such as political or economic
measures – may also qualify.145 Thus the form of duress itself need not
be illegal under international law:146 the focus of the provision is on the
coerced state’s capacity to exercise its own free will, not on the methods
by which a state might attain a sufficiently compromised outcome.147

12.4.2 Other considerations

As with ARSIWA Articles 16 and 17, Article 18, paragraphs (a) and (b),
contains additional requirements. Article 18(b) represents the by now
familiar requirement of knowledge of the circumstances of the inter-
nationally wrongful act148 on the part of the coercing state. Paragraph
(a), however, does not require that the obligation breached by the state so
coerced be also binding on the coercing state, but introduces a test of
causation, namely that the act must have been unlawful vis-à-vis the
coerced state but for the fact of the coercion.
Paragraph (a) thus reinforces the overlap between force majeure as
provided for in ARSIWA Article 23, and a successful act of coercion – if
coercion is force majeure, then the coerced state will be excused from
responsibility that would otherwise have accrued. Responsibility for the
act is transferred to the coercing state, identifying it as the party against
which an injured state might obtain satisfaction.149

145
ILC Ybk 1979/II(2), 103–4.
146
Reuter, Introduction au droit des traités (3rd edn, 1995), 159–61.
147
Crawford, Second Report, 55; ARSIWA Commentary, Art. 18, §3.
148
The use of the term ‘circumstances’ indicates that the coercing state need not be aware
of the ultimate unlawfulness of the act, but merely the relevant factual matrix:
ARSIWA Commentary, Art. 18, §5: ‘while ignorance of the law is no excuse, ignorance
of the facts is material in determining the responsibility of the coercing State’.
149
ARSIWA Commentary, Art. 18, §§4, 6.
422 collective or ancillary responsibility

12.4.3 Coercion of an international organization

The mirror provision150 of ARSIWA Article 18 in the context of inter-
national organizations is DARIO Article 60, which replicates the terms of
the former almost exactly. It provides:
A State which coerces an international organization to commit an act is inter-
nationally responsible for that act if:
(a) the act would, but for the coercion, be an internationally wrongful
act of that coerced international organization; and
(b) the coercing State does so with knowledge of the circumstances of the act.
As with its commentary to DARIO Articles 58 and 59, the ILC acknow-
ledges its debt to the ARSIWA expressly with regard to Article 60.151 As
to the forms that such coercion may take, an interesting question arises
in relation to the economic pressure created by a state threatening to
withhold its contribution payments unless its demands are complied
with, as in the recent example of the United States threatening to
withdraw – and then actually withdrawing – from UNESCO when Pales-
tine was extended membership.152 Such threats are by no means
unknown in the practice of international organizations, and it seems
likely that if an unlawful act were to result, it would amount to coercion
within the meaning of DARIO Article 60.153
DARIO Article 60 lacks an equivalent to the shared paragraph (2) of
DARIO Articles 58 and 59, on the basis that ‘it seems highly unlikely that
an act of coercion could be taken by a State member of an international
organization in accordance with the rules of the organization’.154 This
must be correct: even if the rules of an international organization do not
expressly forbid a member to exercise coercive force, the abuse of power
implied by such an act cannot be the subject of legal penalty.

12.5 Member state responsibility for the acts of

international organizations
The question of attribution of conduct as between international organ-
izations and member states has been discussed in the context of effective
150
Ryngaert and Buchanan (2011), 141.
151
DARIO Commentary, Art. 60, §1. For responsibility for coercion as between
international organizations, see DARIO, Art. 16.
152
In the context of some organizations, the mere act of withholding is an internationally
wrongful act in its own right: see e.g. UN Charter, Art. 17(2) (‘The expenses of the
Organization shall be borne by its members as apportioned by the General Assembly’).
153 154
Ryngaert and Buchanan (2011), 141. DARIO Commentary, Art. 60, §3.
 ancillary and secondary responsibility 423

command and control over peacekeeping forces in Chapter 5. But more

general questions concerning the responsibility of member states for the
actions of international organizations arise.155 Two provisions of the
DARIO provide convenient departure points in this regard: Article 62,
which establishes the separate legal personality of an international
organization as a firewall to responsibility, and Article 61, which pre-
vents states from ‘circumventing’ their obligations by routing their
actions through an international organization and then relying on its
separate personality to escape responsibility.

12.5.1 Responsibility of member states

12.5.1.1 The basic rule
The basic rule of state responsibility for the acts of international organ-
izations is contained in DARIO Article 62. This provides:
1. A State member of an international organization is responsible for an inter-
nationally wrongful act of that organization if:
(a) it has accepted responsibility for that act towards the injured party; or
(b) it has led the injured party to rely on its responsibility.
2. Any international responsibility of a State under paragraph 1 is presumed to
be subsidiary.

Article 62 is, however, more significant for what it does not say, at
least expressly. As with its approach to the ARSIWA,156 the ILC deliber-
ately removed so-called ‘negative’ rules from the DARIO – that is, rules
stating that responsibility could not arise in certain circumstances.157
Rather, the articles carried within them an implied negative rule that
any basis of responsibility not within the DARIO was presumptively
excluded, a point made expressly in the commentary to DARIO Article 62:
Consistently with the approach generally taken by the present draft articles as
well as by the articles on the responsibility of States for internationally wrongful
acts, article 62 positively identifies those cases in which a State incurs responsi-
bility and does not do so when responsibility is not deemed to arise. While it
would be thus inappropriate to include in the draft a provision stating a residual,

155
Generally: Stumer, (2007) 48 HILJ 553; d’Aspremont (2007); Klabbers, An Introduction to
International Institutional Law (2nd edn, 2009), Ch. 14; Sands and Klein (2009), 526–31;
Ryngaert and Buchanan (2011); Brownlie’s Principles, 182–4.
156
Crawford, First Report, 48–50, 53–4; ILC Ybk 1998/II(2), 84–7.
157
See e.g. Draft Articles, Art. 14, which provided that the acts of insurgency groups could
not prima facie be attributed to states.
424 collective or ancillary responsibility

and negative, rule for those cases in which responsibility is not considered to
arise for a State in connection with the act of an international organization, such
a rule is clearly implied. Therefore, membership does not as such entail for
member States international responsibility when the organization commits an
internationally wrongful act.158

The idea that an international organization might stand between a state

and its responsibility is a comparative newcomer to international law.159
The first international organizations emerged in the mid-nineteenth
century, but these were little more than forums for the collective action
of states, and possessed no real agenda of their own.160 Moreover, the
early international organizations tended to deal with ‘technical, non-
political matters’161 such as the collective regulation of rivers,162 or
administrative unions providing international services. Thus the Inter-
national Telegraphic Union was founded in 1865, followed by the Uni-
versal Postal Union163 in 1874 and the International Union of Railway
Freight Transportation in 1890, among others.164
The conventional understanding of the role of the international organ-
ization changed, however, with the advent of the League of Nations in
1919 and then of the United Nations.

12.5.1.2 Judicial confirmation of the basic rule

The notion that an international organization could possess a personality
separate from its members was first advanced by the International Court

158
DARIO Commentary, Art. 62, §2.
159
For example, in his influential early discussion of responsibility, it does not appear to
have crossed Eagleton’s mind that member states would not be held responsible for the
acts of international organizations: Eagleton (1928), 220–9.
160
Klabbers (2009), 14–20; Sands and Klein (2009), 1–12; Akande, in Evans (ed.),
International Law (3rd edn, 2010) 252, 253–4; Brownlie’s Principles, 166. See also and
generally: Klabbers, (2001) 70 Nordic JIL 287.
161
Akande (2010), 253.
162
See e.g. the River Commissions for the Rhine (1815), the Elbe (1821), the Douro (1835)
and the Po (1849) and, most significantly, the European Commission for the Danube,
formed after the Crimean War (1856): Klabbers (2009), 15.
163
See now Constitution of the Universal Postal Union, 10 July 1964, 611 UNTS 7.
164
On these and other public international unions, see Sands and Klein (2009), 5–8. These
are distinct from private international unions such as the International Committee of
the Red Cross (1863), the International Law Association (1873), the Institut de Droit
International (1873) and the International Ornithological Committee (1883), which
have more in common with modern NGOs or, in the case of the International Chamber
of Commerce (1919), arbitral institutions: ibid., 4–5. As one might conclude from the
organizations listed, some of these were more successful than others.
 ancillary and secondary responsibility 425

in its Reparations for Injuries Suffered in the Service of the United Nations
Advisory Opinion.165
The notion of international organization possessing a separate identity
from its members166 was later used, in a manner similar to the corporate
veil familiar in most municipal legal systems,167 to shield members of an
organization from responsibility for its acts.168 The wider ramifications
of this may be seen in various decisions of the British courts concerning
the International Tin Council (ITC).169
The ITC was an international organization with some thirty-two
members (including the European Communities) which was originally
intended to act as a stabilizing force on the world market, buying and
selling tin in order to control prices. In 1985, during the sixth iteration of
the International Tin Agreement,170 the ITC ran out of money, leaving a
debt estimated at several hundred million pounds sterling. The litigation

165
ICJ Rep. 1949 p. 174, 178–9:
[t]he Organization was intended to exercise and enjoy, and is in fact exercising
and enjoying, functions and rights which can only be explained on the basis of
the possession of a large measure of international personality and the capacity to
operate upon an international plane. It is at present the supreme type of
international organization, and it could not carry out the intentions of its
founders if it was devoid of international personality. It must be acknowledged
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 . . . Accordingly, the Court has come
to the conclusion that the Organization is an international person.
166
Although not all organizations possess international legal personality, the ILC appears to
consider it a defining feature of an international organization, properly so called, as seen by
its inclusion in the definition of ‘international organization’ given in DARIO, Art. 2(a):
an organization established by a treaty or other instrument governed by
international law and possessing its own legal personality. International
organizations may include as members, in addition to States, other entities.
(emphasis added)
On the criteria for international personality on the part of international organizations,
see Ryngaert and Buchanan (2011), 135; Brownlie’s Principles, 168–70.
167
See e.g. Salomon v. A. Salomon and Co., [1897] AC 22, 29–31 (Lord Halsbury LC):
Either the limited company was a legal entity or it was not. If it was, the business
belonged to it and not to Mr. Salomon, who is often referred to as Soloman.
If it was not, there was no person and nothing to be an agent at all; and it is
impossible to say at the same time that there is a company and there is not.
168
On the early development of the rule, see generally Amerasinghe (1991). The
widespread use of individual legal identity for corporate entities in municipal legal
systems probably justifies the separation of an organization from its members as a
matter of general principles of international law: ibid., 273–5.
169
Generally: Sands (1987); Sadurska and Chinkin (1989–90); Amerasinghe (1991), 260–5;
Klabbers (2009), 276–9; Sands and Klein (2009), 526–9.
170
26 June 1981, 1282 UNTS 293.
426 collective or ancillary responsibility

against the ITC by creditors in the British courts threw up a host of issues
pertaining to the law of international organizations, including whether
the debts of the organization could be enforced directly against its
members. Although the question was raised incidentally, and the cases
involved at their core considerations of the English law of corporate
entities,171 several pronouncements were made which related to the
law of international organizations. In one case, Kerr LJ in the Court of
Appeal said that he could not
find any basis for concluding that it has been shown that there is any rule of
international law, binding upon the members States of the ITC, whereby they can
be held liable – let alone jointly or severally – in any national court to the
creditors of the ITC for the debts of the ITC resulting from contracts concluded
by the ITC in its own name.172

Similarly, in discussing the existence of a purported rule imposing on

members joint and several liability for the debts of an organization
unless its constitutive instrument expressly provides otherwise, Lord
Templeman found that ‘[n]o plausible evidence was produced of the
existence of such a rule of international law before or at the time of
the [Sixth International Tin Agreement] in 1982 or afterwards.’173 In a
further limb of the case, before the European Court of Justice, Advocate
General Darmon argued that ‘the mere fact of the Community’s being a
member of the ITC does not, in view of the ITC’s separate personality,
enable the wrongful acts and omissions of the ITC to be imputed to the
Community’.174
The opposite conclusion on the question of member state responsi-
bility was reached by an International Chamber of Commerce arbitration
tribunal in the Westland Helicopters case.175 The matter concerned the
Arab Organization for Industrialization (AOI) established by four Arab

171
Amerasinghe (1991), 260–5; Klabbers (2009), 278.
172
Maclaine Watson & Co. Ltd v. Department of Trade and Industry; JH Rayner (Mincing Lane) Ltd v.
Department of Trade and Industry and ors, [1989] Ch. 72, 185.
173
JH Rayner (Mincing Lane) Ltd v. Department of Trade and Industry and ors, [1990] 2 AC 418,
480. See also the 1995 statement of the Institut de Droit International that ‘[s]ave as
specified in article 5, there is no general rule of international law whereby States
members are, due solely to their membership, liable, concurrently or subsidiarily, for
the obligations of an international organization of which they are members’: (1996) 66/
II Ann. de l’Inst. 455.
174
Case No. C-241/87, Maclaine Watson & Co. Ltd v. Council and Commission of the European
Communities, (1990) 96 ILR 201, 226.
175
Westland Helicopters Ltd v. Arab Organization for Industrialization and ors, (1984) 80 ILR 600.
Also Klabbers (2009), 286–7.
 ancillary and secondary responsibility 427

states (the United Arab Emirates, Saudi Arabia, Qatar and Egypt) in order
to develop their arms industries. The AOI entered into a joint venture
with the claimant, and then promptly went into liquidation within
twelve months. In attempting to ascertain the potential liability of the
AOI’s member states for the debts of it organization, the tribunal applied
general principles of law to reach the following conclusion:
In the absence of any provision [in AOI’s constitutive instrument] expressly or
impliedly excluding the liability of the four States, this liability subsists since, as
a general rule, those who engage in transactions of an economic nature are
deemed liable for the obligations which flow therefrom. In default by the four
States of formal exclusion of their liability, third parties which have contracted
with the AOI could legitimately count on their liability.176

This award was annulled by the Court of Justice of Geneva on the

tangential basis that Egypt had not consented to the Tribunal’s juris-
diction.177 But in upholding the annulment, the Federal Supreme
Court of Switzerland noted that the AOI had ‘total legal independence’
vis-à-vis its members and doubted whether member states could be
bound by contracts concluded by an organization in the light of that
independence.178
The basic rule which emerged from the ITC litigation and the West-
land Helicopters annulment was unsurprisingly embraced by govern-
ments.179 To take one example, Germany has argued the point on
multiple occasions before international courts and tribunals.180 This
wide measure of support led to a relatively uncontroversial adoption of
DARIO Article 62 – and its implied negative rule of responsibility – by
the ILC.181

176
Westland Helicopters, (1984) 80 ILR 600, 613.
177
Arab Organization for Industrialization and ors v. Westland Helicopters Ltd and ors, (1987) 10
ILR 622.
178
Arab Organization for Industrialization and ors v. Westland Helicopters Ltd, (1988) 80 ILR 652,
658.
179
Arguments against this view are generally mounted in terms of policy: see e.g. Klabbers
(2009), 288–9.
180
See generally the German submissions on the point of state responsibility for
international organizations to the ILC: 12 May 2005, UN Doc. A/CN.4/556, §O. See also
M & Co. v. Germany, [1990] ECommHR 13258/87; Waite and Kennedy v. Germany, (1999) 118
ILR 121; Legality of the Use of Force (Serbia and Montenegro v. Germany), Preliminary
Objections, ICJ Rep. 2004 p. 720. The final case was one limb of a series of claims
brought against the members of NATO with respect to the bombing campaign in the
former Yugoslavia. Each defendant claimed that membership of NATO did not on its
own give rise to liability for acts of the organization.
181
Further: Ryngaert and Buchanan (2011), 136–8.
428 collective or ancillary responsibility

12.5.2 Exceptions to the basic rule

12.5.2.1 Acceptance of responsibility
The first general exception to the basic position is contained in DARIO
Article 62(1)(a) and would appear similar in character to ARSIWA
Article 11.182 The commentary to the provision states:
The view that member States are not in general responsible does not rule out that
there are certain cases, other than those contained in the previous articles, in
which a State would be responsible for the internationally wrongful act of the
organization. The least controversial case is that of acceptance of international
responsibility by the States concerned . . . No qualification is given to acceptance.
This is intended to mean that acceptance may be expressly stated or implied and
may occur either before or after the time when responsibility arises for the
Organization.183

The acceptance by members of liability is most often done in the consti-

tutive instrument of the organization in question.184 The form in which
this occurs may vary, and not all formulas will give rise to international
responsibility properly so called. On the one hand, the originating treaty
may provide for joint and several liability on the part of members, as in
the case of the Convention on International Liability for Damage Caused
by Space Objects,185 Article XXII(3) of which provides:
If an international intergovernmental organization is liable for damage by virtue
of the provisions of this Convention, that organization and those of its members
which are States Parties to this Convention shall be jointly and severally liable;
provided, however, that:
(a) Any claim for compensation in respect of such damage shall be first
presented to the organization;
(b) Only where the organization has not paid, within a period of six
months, any sum agreed or determined to be due as compensation for

182 183
Ibid., 141–2. DARIO Commentary, Art. 62, §6.
184
A possibility acknowledged in the ITC litigation: Maclaine Watson & Co. Ltd v. Department
of Trade and Industry; JH Rayner (Mincing Lane) Ltd v. Department of Trade and Industry and
ors, [1989] Ch. 72, 243 (Ralph Gibson LJ):
[P]rinciple should require that, so far as concerns those states who must recognise
the validity of the legal personality so created, including those who are party to
the constituent agreement, liability upon the contracts of the organization be
limited, in the absence of agency, to the parties to the contract unless some
positive rule or provision should impose liability. A provision to that effect might
be found in the terms, express or implied, of the constituent document of the
organization. Such liability, therefore, is not, in my judgment, to be founded
simply upon the absence of a provision excluding it.
185
29 March 1972, 961 UNTS 187.
 ancillary and secondary responsibility 429

such damage, may the claimant State invoke the liability of the
members which are States Parties to this Convention for the payment
of that sum.

In the alternative, the separate personality (and thus responsibility) of

the organization may be maintained vis-à-vis third parties, but the con-
stituent instrument may require that members meet the financial liabil-
ities of the organization as an internal matter.186 For example, Article
300(7) of the Treaty on European Union187 provides that ‘Agreements
concluded under the conditions set out in this Article shall be binding on
the institutions of the Community and on Member States’, a form of
words which the European Court of Justice has interpreted as not giving
rise to any form of liability on the part of member states which is
opposable against third parties.188 For this reason, DARIO Article 62(1)(a)
specifies that acceptance of responsibility in such a circumstance operates
only where acceptance is made ‘towards the injured party’.189

12.5.2.2 Injured party reliance

DARIO Article 62(1)(b) introduces a second exception to the basic rule,
where the conduct of a member state has led a third party to rely on the
former’s responsibility with respect to acts of an international organiza-
tion.190 This bears some analogy to the concept of estoppel,191 but nei-
ther Article 62(1)(b) nor its commentary makes any reference to a need
for detriment on the part of the third party.192
Examples of the responsibility of member states as a result of third-
party reliance are not widespread. One example, mentioned in the com-
mentary,193 arose in the second Westland Helicopters award. There, the
tribunal found that member states could be held liable on the basis that
the trust of third parties contracting with the organization had been
procured via the appearance of financial support by member states.194
Given the relatively small size of the AOI in that case, and its concomi-
tant lack of financial independence, it might have been that third parties
186 187
DARIO Commentary, Art. 62, §7. 24 December 2002, [2002] OJ C225/33.
188
Case No. C-327/91, France v. Commission, [1994] ECR I-3641, §25.
189 190
DARIO Commentary, Art. 62, §7. D’Aspremont (2007), 98–9.
191
Stumer (2007), 563; Ryngaert and Buchanan (2011), 145. Generally: Cottier and Müller,
‘Estoppel’, (2007) MPEPIL; Brownlie’s Principles, Ch. 18.
192
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/US), ICJ Rep. 1984
p. 246, 308–9.
193
DARIO Commentary, Art. 62, §9.
194
Westland Helicopters Ltd v. Arab Organization for Industrialization and ors, Second Arbitral
Award, 21 July 1991, §56.
430 collective or ancillary responsibility

were compelled to assume that the organization was little more than a
shell for the collective interests of its members.195 Similar factors (e.g.
small membership) have been suggested as indicative of situations in
which the intention of member states to bind themselves is apparent
from the circumstances, without the need for further positive action,196
although the area has undergone little by way of systematic elaboration.

12.5.3 Abuse of the separate personality of international organizations

DARIO Article 61 introduces a further qualification to the basic rule of
non-liability, and aims to counteract situations in which a state attempts
to circumvent its international obligations via the separate personality of
an organization.197 This may be thought to bear out the US Supreme
Court’s dictum in First National City Bank v. Banco Para El Comercio Exterior
de Cuba that governments ‘cannot avoid the requirements of inter-
national law simply by creating juridical entities whenever the need
arises’.198
DARIO Article 61 provides:
1. A State member of an international organization incurs international respon-
sibility if, by taking advantage of the fact that the organization has competence
in relation to the subject-matter of one of the State’s international obligations, it
circumvents that obligation by causing 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.

The provision has proved controversial.199 Its origins200 lie in a series

of decisions by the European Court of Human Rights201 concerning the
obligation of signatories of the ECHR to ensure that international organ-
izations of which they are members provide human rights protection
which is the ‘equivalent’ of that offered under the ECHR. In Waite and
Kennedy v. Germany,202 the Court examined the question whether the
immunity granted to the European Space Agency by the German courts

195
Ryngaert and Buchanan (2011), 145.
196
DARIO Commentary, Art. 62, §10. See further the suggestions on the subject made by
Belarus to the ILC: UN Doc. A/C.6/60/SR.2, 23 November 2005, §52.
197
DARIO Commentary, Art. 61, §1. Further: Ryngaert and Buchanan (2011), 144–5.
198
462 US 611, 633 (1983).
199
D’Aspremont (2007), 99–100; Ryngaert, (2011) 60 ICLQ 997, 1011–15.
200 201
DARIO Commentary, Art. 61, §§3–5. On which see generally Ryngaert (2011).
202
(1999) 118 ILR 121.
 ancillary and secondary responsibility 431

constituted an impairment of the right of access to justice with respect to

employment claims brought against the organization. The Court said:
Where States establish certain international organizations in order to pursue or
strengthen cooperation in certain fields of activities, and where they attribute to
those organizations certain competencies and accord them immunities, there
may be implications as to the protection of fundamental rights. It would
be incompatible with the purpose or object of the Convention, however, if the
Contracting States were thereby absolved from their responsibility under the
Convention in relation to the field of activity covered by such attribution.203

This position was developed further in Bosphorus v. Ireland,204 still the

leading case of the Court concerning the responsibility of member states
for the acts of organizations.205 The case concerned the lessee of an
aircraft impounded by Ireland under the terms of a European Commu-
nities (EC) Regulation; the Court held that notwithstanding the overrid-
ing effect of the Regulation insofar as EC–Irish relations were concerned,
the matter remained within Ireland’s jurisdiction under ECHR Article 1,
and thereby engaged its responsibility. The Court remarked:
Absolving Contracting States completely from their Convention responsibility in
the areas covered by such a transfer would be incompatible with the purpose and
object of the Convention: the guarantees of the Convention could be limited or
excluded at will thereby depriving it of its peremptory character and undermin-
ing the practical and effective nature of its safeguards . . . The State is considered
to retain Convention liability in respect of treaty commitments subject to the
entry into force of the Convention.206

But the Court also realized that the separate legal personality of
international organizations could not be lightly set aside. As a balancing
act between the EC’s separate identity on the one hand, and the rights of
the individual lessee on the other, it held:
In the Court’s view, State action taken with such legal obligations is justified so
long as the relevant organization is considered to protect fundamental rights, as
regards both the substantive guarantees offered and the mechanisms controlling
the observance, in a manner which can be considered at least equivalent to that
for which the Convention provides . . . If such equivalent protection is considered
to be provided by the Organization, 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 Organization.207

203 204 205

Ibid., 135. [2006] ECtHR 4036/98. Ryngaert (2011), 1000–3.
206 207
[2006] ECtHR 4036/98, §154. Ibid., §§155–6.
432 collective or ancillary responsibility

As Ryngaert points out,208 this passage does not make it clear whether
state responsibility persists in spite of membership in an international
organization, or whether it only arises in cases where the organization
fails to offer equivalent human rights protections. But whichever of the
two options might be preferred, the Court since Bosphorus has consist-
ently held209 that ‘[i]f such equivalent protection is considered to be
provided by the organization, the presumption will be that a State has
not departed from the terms of the Convention when it does no more
than implement legal obligations flowing from its membership of the
organization’.210 Ryngaert further notes that,211 since Bosphorus, ‘the
Court has presumed that all [organizations] “involved” in cases before
the Court provide equivalent rights protection’, and that rebutting this
presumption in accordance with the Bosphorus decision212 has proved to
be a very tall order indeed: so far, no further cases have arisen.213
As explained in the commentary to DARIO Article 61, three conditions
are required in order for international responsibility to accrue under the
provision.214 First, the international organization must have been dele-
gated competence ratione materiae in relation to the international obliga-
tion of the state.215 Second, there must be a significant link between the
conduct of the circumventing member, and the action of the organiza-
tion216 in the sense of a causal link, for example by voting for the act or
the legal apparatus which allowed it to occur. Third, the act of the
organization must have been such as to be internationally wrongful if
committed by the state.217 Thus there is no DARIO Article 61 equivalent
of the pacta tertiis rule of ARSIWA Articles 16(b) and 17(b), and indeed
such a requirement is excluded expressly by paragraph (2).218
To this may be added an additional and problematic element, namely
the requirement of intent. As noted in the commentary, ‘responsibility
will not arise when the act of the international organization . . . has to be
regarded as the unintended result of the member State’s conduct’.219
The provision thus carries with it a subjective element of indeterminate

208 209
Ryngaert (2011), 1001. Ibid., 1002.
210
Bosphorus Hava Yollari Turizm ve Ticaret Anonim Širketi v. Ireland, [2006] ECtHR 45036/98,
§156.
211
Ryngaert (2011), 1002.
212
‘[I]f in the circumstances of a particular case, it is considered that the protection of
Convention rights was manifestly deficient’: Bosphorus, [2006] ECtHR 45036/98, §157.
213
See e.g. Gasparini v. Italy and Belgium, [2009] ECtHR 10750/03. Also DARIO Commentary,
Art. 61, §5. Further: Ryngaert and Buchanan (2011), 144–5; Ryngaert (2011), 1003–6.
214
DARIO Commentary, Art. 61, §§6–8.
215 216 217 218 219
Ibid., §6. Ibid., §7. Ibid., §8. Ibid., §9. Ibid., §2.
 ancillary and secondary responsibility 433

scope. But, as Ryngaert and Buchanan note,220 this requirement is not

overly stringent, and will not only be found to be satisfied in those cases
where the state demonstrates an overt intention to circumvent its
responsibilities. Rather, the state is under an obligation of due diligence
to avoid taking advantage of the separate personality of the organiza-
tion221 so as to cause the organization to commit what for it would be an
internationally wrongful act.
A further question concerns the point in time at which liability of the
state is to be held to crystallize.222 In Bosphorus, which the ILC appears to
have adopted as its own,223 the Court held:
State action taken in compliance with such legal obligations is justified as long as
the relevant organization is considered to protect fundamental rights, as regards
the substantive guarantees offered and the mechanisms controlling their obser-
vance, in a manner which can be considered at least equivalent to that for which
the Convention provides . . . However, any such finding of equivalence would not
be final and would be susceptible to review in the light of any relevant change in
fundamental rights.224

As Ryngaert notes,225 this statement when generalized and combined

with the apparent due diligence requirement of DARIO Article 61 would
require a member state to screen the actions of the international organ-
ization continuously in order to ensure that none of the state’s obliga-
tions were being breached. This may be objected to on policy grounds, as
even with a loose requirement of positive action on the part of the state it
appears onerous for a state to bear responsibility for the acts of an
organization by reason of a transfer of competence, especially where
that transfer is long past.226 Moreover, it may be thought to act as a
deterrent to international co-operation at a time when the world is in
need of collective solutions to pressing problems.227
An alternative and more troublesome view is provided by the Euro-
pean Court’s later decision in Gasparini v. Italy and Belgium,228 in which
the time of accession to the organization was considered to be the point
220
Ryngaert and Buchanan (2011), 144.
221
Stumer (2007), 563: ‘In such a case, the responsibility of the Member State is, strictly
speaking, not for the act of the international organization, but for the failure to ensure
that the transfer of power to the organization was consistent with the State’s
international obligations.’
222 223
Ryngaert (2011), 1014–15. DARIO Commentary, Art. 61, §4.
224
Bosphorus Hava Yollari Turizm ve Ticaret Anonim Širketi v. Ireland, [2005] ECtHR 45036/98,
§155
225 226
Ryngaert (2011), 1014. Paasivirta, (2010) 7 IOLR 49, 53.
227 228
Ibid., 50–1; Ryngaert (2011), 999. [2009] ECtHR 10750/03, 7.
434 collective or ancillary responsibility

at which the temporal element must be assessed. One wonders how the
respondent states there could have adequately foreseen whether or not
NATO’s dispute settlement procedures were ECHR-compliant, especially
as the ECHR did not exist when Italy and Belgium signed the North
Atlantic Treaty229 in 1949.230 On balance, however, it does not appear
that the Gasparini model is what the ILC had in mind in drafting DARIO
Article 61, due to the apparent need for a positive contribution by the
state to the act of the organization. In Gasparini the requirement appears
to have been modified so that presumptive liability is based on a per-
ceived deficiency in the organization’s procedures. It remains to be seen
whether this will become the new norm in ECHR jurisprudence.231
The attempt to generalize the practice of the European Court of
Human Rights in this way has led to significant criticism of DARIO
Article 61. Thus d’Aspremont notes that ‘it is anything but clear that
such a principle can be transposed to a universal level’.232 He further
sees the dilution of the culpa of Article 61 as divorcing the provision from
the real intention of the parties,233 resulting in an unjustified expansion
of responsibility. At the same time the provision fails to address appro-
priately what d’Aspremont sees as a rather more serious problem,
namely the exercise of overwhelming control by certain states at the
decision-making level of the organization234 (though it would seem that
such cases would be caught within the ambit of DARIO Article 61 as it
stands). If it was the ILC’s intention to adopt the ‘equivalent protection’
case law of the European Court of Human Rights wholesale (or at least its
practice as developed through Bosphorus), then it would appear that at
least some form of positive action on the part of the state is required,
potentially placing a limit on liability.235
Ultimately, the adoption of DARIO Article 61 by the ILC remains
controversial and the conditions of its application uncertain. It remains
to be seen whether a jurisprudence constante coalesces around the provi-
sion such that it acquires utility beyond the sphere of human rights.

229 230
4 April 1949, 34 UNTS 241. Ryngaert (2011), 1014 n. 78.
231 232
Ibid., 1003–6 D’Aspremont (2007), 99. Also Ryngaert (2011), 1011–15.
233 234
D’Aspremont (2007), 99–100. Ibid., 100.
235
Ryngaert and Buchanan (2011), 144. See e.g. Bosphorus, [2006] ECtHR 45036/98, where
the positive act was an act implementing the decision of the EC to impound the lessee’s
aircraft.
13 Succession to responsibility1

13.1 Introduction
State succession refers to ‘the replacement of one State by another in the
responsibility for the international relations of territory’.2 The field itself
has been the subject of much investigation,3 although there is still
uncertainty about the extent to which there are international law rules
or even presumptions of succession. In particular the question arises
whether there is a succession of states to obligations of reparation
arising from an internationally wrongful act committed by a predecessor
state against a third state prior to the date of succession – compendi-
ously, whether there is succession to responsibility.4 The standard
answer to this question is no.5 But, as noted by O’Connell,

1
Generally: Hurst, (1924) 5 BYIL 163; O’Connell, 1 State Succession in Municipal and
International Law (1967), 482–93; O’Connell, (1970) 130 Hague Recueil 95, 162–5; Verzijl, 7
International Law in Historical Perspective (1974), 219–28; Czaplinski, (1990) 28 Can. YIL 339;
Volkovitsch, (1992) 92 Col. LR 2162; Dumberry, (2006) 49 GYIL 413; Dumberry, (2006) 39
RBDI 507; Dumberry, Succession to State Responsibility (2007); Mikulka, in Crawford, Pellet
and Olleson (2010) 291. Also 1 Restatement Third §209, reporters’ n. 7.
2
This definition appears in the Vienna Convention on Succession of States in Respect of Treaties,
23 August 1978, 1946 UNTS 3, Art. 2(1)(b), and the Vienna Convention on Succession of States
in Respect of State Properties, Archives and Debts, 8 April 1983, 22 ILM 305, Art. 2(1)(a). The
definition also appears in the ILC’s Articles on the Nationality of Natural Persons in Relation to
the Succession of States, ILC Ybk 1999/II(2), Art. 2(a). See, earlier, Verzijl, 7 (1974), 3.
3
See e.g. O’Connell (1967); Stern, (1996) 262 Hague Recueil 9; Eisemann and Koskenniemi
(eds.), State Succession: Codification Tested against the Facts (2000); Zimmerman, ‘State
succession in other matters than treaties’, (2007) MPEPIL.
4
Defined in the Vienna Convention on Succession of States in Respect of Treaties,
Art. 2(1)(e), as ‘the date upon which the successor State replaced the predecessor State in
the responsibility for the international relations of the territory to which the succession
of States relates’. See also the 1983 Vienna Convention, Art. 2(1)(d).
5
There is, on the other hand, no question that a new government of an existing state is
liable for the delicts of earlier regimes: Tinoco Claims (Great Britain v. Costa Rica), (1923) 1

435
436 collective or ancillary responsibility

There is no great intellectual incubus behind this supposed rule of international

law. What is meant by the proposition that there is no succession to torts or
delicts? If it means there is no responsibility respecting international delicts the
proposition is patently erroneous, for every diplomatic claim arising out of a
failure of the successor State to discharge the obligations of the predecessor is
delictual in character. If it means that there is no responsibility respecting events
which are characterized by the forum of the successor State as tortious or
delictual, this leaves international responsibility to the hazard of a municipal
law distinction.6

There is a distinction, as noted by O’Connell,7 between the succession

to liability with respect to an internationally wrongful act as opposable
to another state and succession with respect to a municipal tort, as in the
case of attempts to hold former colonial powers liable for the wholly
domestic actions of their colonial administrations. For example, in Mutua
Kenyan citizens brought a suit before the UK courts for municipal
torts committed against them by the administration in the then
Crown Colony of Kenya during the ‘Mau Mau’ uprisings of the 1950s.
McCombe J noted that quite aside from the question of succession to
international delicts, customary international law had never contained a
rule of succession with respect to domestic torts.8
As to succession with respect to internationally wrongful acts of the
predecessor state, there has long been an aversion to investigating this
topic on an institutional level. In 1963, Manfred Lachs, chairman of the
ILC’s Sub-committee on Succession of States and Governments, proposed
to include on the ILC’s agenda succession to responsibility.9 This sugges-
tion was opposed, inter alia, on the basis that such issues should be
considered essentially within the domestic jurisdiction of states,10 and
the Sub-committee excluded succession to responsibility from the scope
of the topic.11 In consequence it figured neither in the ILC’s work on state
succession nor in its later work on state responsibility. The commentary
to the ARSIWA simply states that ‘in the context of State succession, it is
unclear whether a new State succeeds to any State responsibility of the

RIAA 369; Socony Vacuum Oil Company Claim (1955) 21 ILR 55. The same may be said
for the government of a new state with respect to the actions of an insurrectional
movement: ARSIWA, Art. 10; Dumberry, (2006) 17 EJIL 605. See Chapter 6.
6 7
O’Connell, (1970) 130 Hague Recueil 95, 163. O’Connell, 1 (1967), 482.
8
Mutua and ors v. Foreign and Commonwealth Office, [2011] EWHC 1913 (QB), §195.
9
ILC Ybk 1963/II, 260.
10
See the comments of Elias and Rosenne, respectively: ibid., 282, 287.
11
Ibid., 299. The question is expressly reserved by the Vienna Convention on Succession of
States in Respect of Treaties, Art. 39.
 succession to responsibility 437

predecessor State with respect to its territory’.12 The Fourteenth Com-

mission of the Institut de Droit International has since 2003 been con-
sidering state succession in matters of responsibility, but has yet to
produce a resolution.13 The decision of the Institut to convene the
Fourteenth Commission was attended by similar reservations to those
which prompted the rejection of the subject by the ILC,14 although in
this case the dissenters were not able to derail consideration.15
Scholarly discussion of succession to responsibility has been similarly
limited,16 and the point has only rarely been the subject of litigation or
arbitration. Despite this, there has been a certain shift in consensus,
from what Dumberry refers to as the ‘traditional’ or ‘absolute’ approach
of non-succession (referred to here as the ‘negative succession’ rule) to a
more nuanced view that focuses on the facts of the succession in
question.17

13.2 The negative succession rule

13.2.1 The early authorities
Support for the negative view is drawn from two arbitral decisions of the
early part of the twentieth century. The Robert E. Brown case18 arose in
the context of the British annexation of the Boer Republics in 1902,
towards the close of the Second Anglo-Boer War. Brown, an American
national who held concessions for gold mining in the Transvaal, had
been deprived of his rights through a proclamation of the Boer govern-
ment in 1895. He brought a suit before the South African courts in 1897
and won, but the government refused to honour the judgment.
Following British annexation of the Transvaal Republic, Brown pressed
his case with the British authorities and was again refused. Finally,
Brown brought a further claim before the Great Britain–United States
Claims Commission for denial of justice, arguing that as successor to the
Boer Republics, Britain was answerable for their delicts. Although the

12 13
ARSIWA Commentary, Art. 11, §3. (2003) 71/II Ann. de l’Inst. 59, 394.
14
See the comments by Degan, ibid., 65, 73; Torres Bernardez, ibid., 66. Cf. Salmon,
arguing that it was precisely because the ILC had refused to consider the topic that the
Institut should take it up: ibid., 73.
15
The proposal to create the Fourteenth Commission was finally adopted 35:2, with five
abstentions: ibid., 74.
16 17
Dumberry (2007), 11, 35–7. Dumberry, (2006) 49 GYIL 413, 415.
18
Robert E. Brown (US) v. Great Britain, (1923) 6 RIAA 120. The article by Hurst (1924) was
published in connection with the case, and was intended to support the British position.
438 collective or ancillary responsibility

Commission agreed that a denial of justice on the part of the South

African authorities had indeed taken place, it refused to hold Britain
liable as successor, stating:
[W]e are equally clear that [South African] liability never passed to or was
assumed by the British Government. Neither in the terms of peace granted at
the time of the surrender of the Boer Forces . . . nor in the Proclamation of
Annexation . . . can there be found any provision referring to the assumption of
liabilities of this nature . . . The contention of the American Agent amounts to an
assertion that a succeeding State acquiring territory by conquest without any
undertaking to assume such liabilities is bound to take affirmative steps to right
the wrongs done by the former State. We cannot indorse this doctrine.19

Brown was followed by the same Commission in the Hawaiian Claims

arbitration.20 These were actions for wrongful imprisonment, detention
in prison, deportation and other outrages allegedly committed on British
officials by the authorities of the Hawaiian Republic prior to its annex-
ation by the United States in 1898. Britain, aware that it was possibly
contradicting its own argument in Brown, attempted to distinguish the
cases by reference to the fact that while the British annexation of the
Boer Republics was by conquest, the United States had absorbed Hawaii
through ‘voluntary cession’. The Commission was unimpressed:
We are unable to accept the distinction contended for. In the first place, it
assumes a general principle of succession to liability for delict, to which the case
of succession of one state to another through conquest would be an exception.
We think there is no such principle. It was denied in the Brown case and has never
been contended for to such an extent . . . Nor do we see any reason for distin-
guishing termination of a legal unit of international law through conquest from
termination by any other mode of merging in, or swallowing up, 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.21

13.2.2 Defences and criticisms of the negative succession rule

The negative succession rule has been defended on several grounds,
some still current.22 The first is simple: only states which have actually
19 20
(1923) 6 RIAA 120, 129–30. F. H. Redward (Great Britain) v. US, (1925) 6 RIAA 157.
21
Ibid., 158.
22
Hurst (1924), 178, argued that imposition of a rule of state succession with respect to
responsibility would ‘enable a small and backward State to withstand all pressure from a
better governed and more advanced neighbour’ and act as a ‘direct encouragement to
any such backslider . . . to render itself secure from intervention and absorption by
perpetuating anarchy and misrule within its borders’, thereby setting ‘a premium on
 succession to responsibility 439

committed an internationally wrongful act can or should be held respon-

sible for it.23 This was the position taken by the Commission in the
Hawaiian Claims case.24 The argument is justified on the basis of the
equality and independence of states,25 which is valid so far as it goes26
but misses the point. It is clear that as a matter of international law,
responsibility may only be incurred by the state which perpetrates the
wrongful act: the question, from the point of view of succession, is
whether the obligation to remedy27 which arises in consequence of the
act disappears with the disappearance of the predecessor state.28 The
answer that this secondary obligation disappears by operation of law and
irrespective of the circumstances is a doctrinal a priori.
A second justification arises from the so-called ‘personal’ character of
internationally wrongful acts: actio personalis moritur cum persona.29 This
maxim is a common law adaptation of the Roman law as to personal
succession post-Justinian, where liability in an action ex delicto did not
pass to an heir.30 In Hawaiian Claims, the Commission remarked:
The analogy of universal succession in private law, which is much relied upon by
those who argue for a large measure of succession to liability for obligations of
the extinct State, even if admitted (and the aptness of the analogy is disputed),
would make against succession to liability for delicts.31

misgovernment’. Cf. Hyde, 1 International Law Chiefly as Interpreted and Applied by the United
States (2nd edn, 1945), 438, arguing that the establishment of a rule of succession would
‘diminish the interest of strong powers in seeking to annex and so obliterate the
statehood of weaker and backward neighbours’. Such overtly colonialist arguments no
longer appear.
23
Daillier, Forteau and Pellet, Droit International Public (8th edn, 2009), 618–19.
24 25
(1925) 6 RIAA 157, 158. Dumberry (2007), 43.
26
See e.g. ARSIWA Commentary, Art. 1, §1.
27
ARSIWA, Art. 31(1); further Chapters 15 and 16.
28
Dumberry, (2006) 49 GYIL 413, 416; Dumberry (2007), 44–6.
29
E.g. Hurst (1924), 177–8 (although Hurst draws a distinction with respect to actions of
annexation and conquest); Malanczuk, Akehurst’s Modern Introduction to International Law
(7th edn, 1997), 169; Reina, (2004) 22 Berk. JIL 583, 587; Brownlie’s Principles, 442.
30
4 Institutes of Justinian (533; trans. Moyle, 5th edn, 1913), §12 (‘Actions which will lie
against a man under either the civil or the praetorian law will not always lie against his
heir, the rule being absolute that for delict . . . no action can be brought against the heir’).
Further: Lauterpacht, Private Law Sources and Analogies of International Law (1927), 131–2,
utilizing Justinian to qualify the ‘universal’ theory of succession to rights and
obligations propounded by Grotius (1625), Bk II, Ch. IX, §XII (ed. Tuck 2005), 684 (‘That
the person of the Heir is to be looked upon as to be the same as the Person of the
Deceased, in regard to the Continuance of Property; either publick or private, is an
undoubted Maxim’).
31
(1925) 6 RIAA 157, 158.
440 collective or ancillary responsibility

This justification has, however, been widely rejected as ‘overly simplis-

tic’ and even ‘hopelessly anachronistic’,32 drawing as it does on a model
of the state in which the person of the sovereign is used as an analogy for
the body politic. Private law analogies are inherently unreliable, because
they beg the question of the character of interstate relations, which are
rarely equivalent to the relations between citizens of a law-governed
state.33 While reference to private law sources is on occasion useful
(e.g. in the field of civil procedure), those sources so identified must be
‘appropriate for international relations’34 and ‘adapted as necessary to
the requirements of application against states’.35
Dumberry36 argues persuasively that the analogy of personal succes-
sion in Roman law is inapposite. Under the law of personal succession,
the death of the individual is a prerequisite to succession. The same may
not be said of succession as between states, which is concerned with
shifts in responsibility for the external relations of territory. Most forms
of state succession do not involve the ‘death’ of a state or states, but
rather the transfer of territory between them (e.g. via secession, cession
or annexation). Thus a state need not cease to exist as a formal trigger for
the succession process. But even if we are dealing with a situation in
which a state does cease to exist, the private law analogy advanced by the
traditional approach remains inapposite. Even if a state somehow loses
its legal personality, its constituent elements – that is, its territory,
property and population – persist.37 It is one thing to deny succession
to a transient unliquidated claim and another to deny it to the expropri-
ation of a major asset which enures to the benefit of the territory
concerned.

32
Volkovitsch (1992), 2196.
33
Ibid., 2209; Schachter, (1982) 178 Hague Recueil 9, 77–80. Cf. Lauterpacht, whose mature
position on the subject was that municipal analogies had become part of the DNA of
international law, thereby converting ‘analogy’ to ‘identity’: Lauterpacht, 1 (1970–2004),
307, 336. Lauterpacht’s view on the utility of private law analogies/identities in
international law (as expressed in Lauterpacht (1927) and in Lauterpacht, (1946) 23
BYIL 1) was an abandonment of the view taken in his earlier doctoral dissertation at the
University of Vienna, where he argued that the use of such analogies ‘endangers the
independence of international law and fails to recognize its peculiarity’: Koskenniemi,
The Gentle Civilizer of Nations (2001), 374.
34 35
Schachter (1982), 79. Volkovitsch (1992), 2209.
36
Dumberry (2007), 48–50. Also Volkovitsch (1992), 2196.
37
Ibid., 49. Also Feilchenfeld, Public Debts and State Succession (1931), 700. On the extinction
of states, see further Crawford, Creation of States in International Law (2006), ch. 17;
Ziemele, ‘States, extinction of’ (2007) MPEPIL.
 succession to responsibility 441

A third argument against the private law analogy is that it is no longer

accurate: both civil and common law jurisdictions now generally provide
for the survivability of actions against deceased tortfeasors.38 Indeed,
this was recognized by the tribunal in Lighthouses Arbitration:
If that argument did in truth set out a general principle of law, it ought to be
equally valid in civil law, but that is far from the case. On the contrary, delictual
obligations of private individuals, which appear to present the same ‘highly
personal’ nature, normally pass to the heirs. That is not to say that the principles
of private law are applicable as such in cases of State succession, but only that the
one argument which is sometimes invoked against the transmission of delictual
obligations is without force.39

Finally, the notion that the ‘personal’ character of an international

delict is anathema to succession is founded on the outdated notion of
culpa or fault in state responsibility.40 As is made clear in ARSIWA
Article 1, state responsibility as a concept is no longer intrinsically linked
to a mens rea of any description: rather, responsibility is seen as an
objective correlative of an internationally wrongful act.41
Attempts have been made in the past to qualify the absolute theory of
succession to responsibility by reference to the concept of liquidated
damages – that is, damages resulting from the verification and quantifi-
cation of a claim by a court or tribunal of competent jurisdiction.42 The
argument runs that an internationally wrongful act merely gives rise to a
right of suit, and does not create any interest in assets. Until quantifica-
tion, the claimant has no more than a capacity to appear before a
competent adjudicatory body, which may or may not make an award
in its favour:43 a sort of Schrödinger’s damages.44 Thus there can be no
state succession to responsibility with respect to an unliquidated claim.
As Verzijl notes, this position is again based on an inapposite analogy,
this time by reference to the common law concept of the non-
transferability of unliquidated debts in private law.45 That is not to say

38
Volkovitsch (1992), 2196; Stern, in Stern (1998) 197, 200; Dumberry, (2006) 49 GYIL 413,
417–18; Dumberry (2007), 50.
39
Lighthouses Arbitration between France and Greece (Claims Nos. 11 & 4), (1956) 23 ILR 81, 93.
40
Dumberry (2007), 51.
41
Crawford, First Report, 29–30. For the earlier view of the role of fault in the law of state
responsibility, see Brownlie (1983), 38–48.
42
See e.g. Hurst, who frames his argument in terms of unliquidated damages: Hurst
(1924), 169, 170, 172, 176–8.
43
O’Connell 1 (1967), 485; Verzijl 7 (1974), 220.
44
Schrödinger, (1935) 23 Naturwissenschaften 807; Trimmer, (1980) 124 PAPhS 323.
45
Verzijl 7 (1974), 220.
442 collective or ancillary responsibility

that the liquidated or unliquidated character of the claim is irrelevant

to the transmission of responsibility, merely that it will not be deter-
minative.46 In Lighthouses Arbitration, the tribunal held that one of the
claims on foot must succeed, in part because its quantum was easily
ascertainable.47

13.3 Rebutting the negative succession rule: judicial

consideration
Following the decisions of the Great Britain–United States Claims Com-
mission in the Robert E. Brown and Hawaiian Claims cases, it became
received wisdom that the negative succession rule was correct as a
matter of law: as O’Connell noted, ‘[i]t has been taken for granted that
a successor State is not liable for the delicts of its predecessor.’48 Early
opposition to the status quo was voiced by Feilchenfeld, who rejected the
assertion that the mere fact of state succession was sufficient to termin-
ate responsibility,49 with later resistance registered by O’Connell50 and
Verzijl.51 The latter stated:
The doctrine of public international law is haunted by the unyielding and wide-
spread thesis according to which there can be no question of the passing of State
responsibility for international delinquencies from a predecessor to a successor
State on the ground that the responsibility is by its nature too intimately tied up
with the ‘person’ of the offender . . . [The theory] must therefore, even if it is not
unreasonable in itself, be rejected in its absolute variant, because there are
different situations conceivable in which its application would be unreasonable,
no matter whether the debts are liquidated or not. It tends indeed to become, as a
result of unjustified generalization, an assertedly unassailable dogma though it is
in fact no more than a legal myth.52

Although the state practice of the nineteenth century – such as the

1842 Treaty of Westphalia regulating the dissolution of the Kingdom
of Westphalia53 – appears to have supported negative succession rule

46 47
Ibid. (1956) 23 ILR 81, 91–3.
48
O’Connell 1 (1967), 482. Further: Cheng (1953, repr. 1993), 167, 342.
49
Feilchenfeld (1931), 689–90.
50
O’Connell 1 (1967), 484–5; O’Connell, (1970) 130 Hague Recueil 95, 164.
51
Verzijl 7 (1974), 219–28.
52
Ibid., 219–20. Further: Czaplinski (1990); Volkovitsch (1992); Dumberry, (2006) 49 GYIL
413; Dumberry (2007).
53
29 July 1842, 93 CTS 371, Art. 13. Further: Dumberry (2007), 99.
 succession to responsibility 443

generally,54 a more qualified version of the doctrine has emerged in the

twentieth century from judicial and state practice.
Very few international courts or tribunals have had occasion to con-
sider the question of succession to responsibility. Some municipal
courts, however, took the opposite view, with the Greek Court of the
Aegean Islands holding in the Samos case that the Greek state was
substituted for the former principality of Samos with respect to acts of
customs officials under the preceding Ottoman regime.55
Furthermore, in 1924, the United States ratified a treaty with Austria
and Hungary dealing with the quantification of amounts to be paid by
these states as successors to the Austro-Hungarian Empire with respect
to acts committed against US citizens during the First World War.56 The
Tripartite Claims Commission that emerged out of that treaty acknow-
ledged that the doctrine of state succession with respect to responsibility
was indeterminate, throwing doubt on the negative succession rule.57

13.3.1 Lighthouses Arbitration

A juridical break of sorts with the absolutist position was achieved by
Lighthouses Arbitration, in which Verzijl was president of the tribunal. The
case settled the claims of the French company Collas et Michel, which
was commissioned to maintain lighthouses on Crete – territory then
under the control of the Ottoman Empire.58 This concession was
54
Cf. certain isolated examples, such as the 1343 treaty between Philip VI of France and
Humbert II of Viennois whereby the latter’s lands (the Dauphiné), on his death, would
pass to the second son of the former. According to Art. 8 thereof, Humbert’s successor
was to pay all debts and be liable for all torts committed by Humbert ‘[as] a son is bound
by the obligations of his father’: reproduced with discussion in Feilchenfeld (1931), 20.
Further: Volkovitsch (1992), 2176. Dumberry (2007), 134–5, identifies this episode as
reflecting an era in which territory was seen as the private patrimony of the individual
sovereign, and thus inapplicable to modern interstate relations.
55
Samos (Liability for Torts) Case, (1924) 2 ILR 70, 70. But cf. the decision of the Supreme
Court of Poland, holding that the Polish State Treasury was not liable for damage caused
by the Austrian State Railway prior to the emergence of an independent Polish state in
1918: Niemiec and Niemiec v. Białobrodziec and (Polish) State Treasury, (1923) 2 ILR 64, 65.
56
26 November 1924, 48 LNTS 70. Further: Dumberry (2007), 53, 99–102.
57
Administrative Decision No. 1, (1927) 6 RIAA 203, 210:
The answer must be found in the provisions of the Treaties of Vienna and of
Budapest. It will not be profitable to examine the divergent views maintained by
European continental writers on international law as compared with those of
Great Britain and the United States with respect to the liability of a Successor
State for the obligations either ex contractu or ex delicto of a dismembered State.
58
The sovereignty of Crete in the late 1800s and early 1900s was a complex question,
leading to much uncertainty: Ion (1910). See the historical survey provided in the
Lighthouses Arbitration, (1956) 23 ILR 659, 663–6.
444 collective or ancillary responsibility

expropriated by the Greek government during the First World War,

leading to claims concerning putative Greek responsibility for acts com-
mitted by the Cretan government prior to its union with Greece in 1913.
The first was Claim No. 11, relating to the expense caused to Collas et
Michel by a 1903 order given by the Cretan government to construct two
new lights at Spada and Cryo, which was then countermanded in 1908.59
The second, Claim No. 4, concerned the exemption of the Greek vessel
Aghios Nicolaos from the payment of normal light dues, ordered by a
Cretan law of 1908 which was kept in force until 1914. The tribunal
joined the claims as both concerned Greece’s succession to the responsi-
bility of the Cretan state.
The tribunal rejected Claim No. 11 on the basis that the Greek govern-
ment had committed no wrongful act with respect to the decision to
countermand the original commission for the lighthouses: rather, blame
fell with the Cretan government for contradicting its original order, with
the Ottoman government for failing to ensure their construction, and
with Collas et Michel itself for undertaking unnecessary preparatory
work without due diligence as to the eventual financial consequences.60
The tribunal also acknowledged the relevance of the distinction between
a liquidated and unliquidated claim in questions of succession to
responsibility.
The connection between this territorial succession, on the one hand, and the
order and cancellation by the Cretan government in 1903 and 1908 respectively,
on the other hand, are too remote to justify a decision which would fix Greece
and Greece alone with the general responsibility for the acts and omissions of
others which were compete strangers to her . . . Moreover, we are here dealing
with a claim which was neither recognized as well founded by the Ottoman
Empire or by Crete nor determined by a competent tribunal nor liquidated or
easily liquidable on the basis of facts giving rise to it.61

Claim No. 4 was a different matter, the tribunal holding that three
further aggravating circumstances led to the conclusion that Greece
should be held responsible for the acts of the Cretan government. First,
the Cretan attitude in excepting the Aghios Nicolaos was totally contrary
to the terms of the concession contract which was binding on it either as
an autonomous state or a subdivision of the Ottoman Empire. Second,

59
These lighthouses also formed the substance of the judgment of the Permanent Court in
Lighthouses in Crete and Samos, (1937) PCIJ Ser. A/B No. 71, which concerned succession to
contracts. Judge Hurst formed part of the Court, appending a separate opinion.
60 61
(1956) 23 ILR 81, 89. Ibid.
 succession to responsibility 445

the concession for the coastal service around Crete – which the Aghios
Nicolaos was engaged in carrying out – was contrary to the terms of the
lighthouse concession awarded to Collas et Michel and given to a Greek
shipping company, bringing the matter putatively to the attention of the
Greek government. Third, Greece kept the coastal service concession in
force after its succession to Crete, thus sanctioning the illegal conduct
and adopting it for its own. As such, Greece was responsible for the
relevant acts: this responsibility could result ‘only from a transmission
of responsibility in accordance with the rules of customary law or the
general principles of law regulating the succession of States in general’.62
Lighthouses Arbitration is notable, however, for its articulated critique of
absolutist solutions both for and against succession with respect to
responsibility, rejecting both the decision of the Greek court in the Samos
case and those of the British–American Claims Commission in Robert
E. Brown and Hawaiian Claims:
Seen from this point of view, the question of transmission of responsibility in the
event of territorial change presents all the difficulties of a matter which has not yet
sufficiently developed to permit solutions which are both certain and applicable
equally in all possible cases. It is no less unjustifiable to admit the principle of
transmission as a general rule than to deny it. It is rather and essentially a question
of a kind the answer to which depends on a multitude of concrete factors.63

The tribunal went on to say:

[T]he solution must depend on the particular circumstances of each case. An
obligation created by an international delict properly so-called, committed in
direct violation of the law of nations, such as the invasion of a neutral territory or
the arbitrary destruction of a vessel exempt from capture, is something quite
different from an obligation which has an origin in private law or in adminis-
trative law and which gives rise to an international claim only in consequence of
a denial of justice. The hypothesis of the voluntary union of two independent
States in one unitary or federal State differs essentially from that brought about
by the annexation of one State by another by force of arms. The dismemberment
of a unitary State into two or more new States presents certain characteristic
features which differ from those inherent in the secession of a colony from the
mother country as a new independent State. All these differences cannot but
exercise a decisive influence on the solution of the problem of State succession
even in cases of delictual obligation.64

Thus the tribunal sensibly linked the question of succession in this

regard to the form in which succession took place.

62 63 64
(1956) 23 ILR 81, 90. Ibid., 91. (1956) 23 ILR 81, 91–2.
446 collective or ancillary responsibility

13.3.2 The Gabčíkovo-Nagymaros case

The International Court has yet to address the issue of succession to
responsibility squarely, but the question was relevant en passant in the
Gabčı́kovo-Nagymaros case.65 The case concerned the fallout from a 1977
treaty66 concluded between Hungary and Czechoslovakia relating to the
construction and operation of a series of barrages on the Danube. Work
commenced on the project in 1978, but at Hungary’s instigation was
slowed in 1983. As a result of domestic pressure, Hungary stopped work
altogether in 1989. In response to this, Czechoslovakia put into effect in
November 1992 a provisional solution known as Variant C, whereby the
Danube would be diverted further upstream and returned 30 km down-
stream after passing through the Gabčíkovo barrage. On 1 January 1993,
Czechoslovakia dissolved and Slovakia became an independent state. By
a Special Agreement of 7 April 1993, the dispute was submitted to the
International Court.67 One issue was whether Slovakia could be held
responsible for any internationally wrongful acts committed by Czecho-
slovakia prior to its dissolution. The Preamble to the Special Agreement
provided:
Bearing in mind that the Slovak Republic is one of the two successor states of the
Czech and Slovak Federal Republic and is the sole successor state in respect of
rights and obligations relating to the Gabčíkovo-Nagymaros Project . . .

The Court took this statement to mean that Slovakia succeeded to

Czechoslovakian responsibility with respect to the project:
According to the Preamble to the Special Agreement, the Parties agreed that
Slovakia is the sole successor State of Czechoslovakia in respect of rights and
obligations relating to the Gabčíkovo-Nagymaros Project. Slovakia may thus be
liable to pay compensation not only for its own wrongful conduct but also for
that of Czechoslovakia . . .68

While this may be taken as an implied acknowledgement of succession

to responsibility, the Court’s language suggests that it interpreted the
Preamble to mean that Slovakia had agreed to assume liability for

65
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7. Further: Schrijver and
Prislan (2008).
66
Treaty concerning the Construction and Operation of the Gabčíkovo-Nagymaros Series
of Locks, 16 September 1977, 1109 UNTS 211.
67
Special Agreement for Submission to the International Court of Justice of the Differences
between the Republic of Hungary and the Slovak Republic concerning the Gabčíkovo-
Nagymaros Project, 7 April 1993, 32 ILM 1293.
68
ICJ Rep. 1997 p. 7, 81.
 succession to responsibility 447

Czechoslovakian delicts. The case is thus an example of succession to

responsibility by agreement.69
It is worth noting that in both the cases considered, responsibility was
held to be transferred to the successor state where it either expressly (as
in Gabčı́kovo-Nagymaros) or impliedly (as in Lighthouses Arbitration) adopted
its predecessor’s conduct as its own.70 From the point of view of state
responsibility in general, this is referable as much to ARSIWA Article 11
as to the operation of any rules of state succession.71

13.4 Rebutting the negative succession rule: modern

state practice
13.4.1 The role of state practice
It is left to state practice to provide further illumination to the topic. Less
relevant here is state practice occurring prior to the modern (post-Second
World War) era. Following the advent of Article 2(4) of the UN Charter,
the acquisition of territory by conquest – the basis on which the relevant
claim of succession was made in Robert E. Brown – would be considered
illegal. Additionally, during this period, there was less support in doc-
trine and practice for automatic succession even in respect of primary
obligations.72 This shift appears to have been recognized in some juris-
dictions. The Restatement Third suggests:
These cases [Robert E. Brown and Hawaiian Claims] date from the age of colonialism
when colonial powers resisted any rule that would make them responsible for
the delicts of states which they regarded as uncivilized. The authority of these
cases a century later is doubtful. At least in some situations, it would be unfair to
deny the claim of an injured party because the state that committed the wrong
was absorbed by another state.73

The most expansive analysis of the state practice surrounding succes-

sion to responsibility has been undertaken by Dumberry,74 who con-
cludes that aside from specific situations where the successor has
agreed to answer for the delicts of the predecessor, the landscape
69
Dumberry, (2006) 49 GYIL 413, 427–8; Dumberry (2007), 111–16. Cf. Mikulka (2010),
295–6.
70
Further: Crawford, First Report, 54. Also Verzijl 7 (1974), 222–3; Volkovitsch (1992),
2190–1. Cf. Czaplinski (1990), 345–6.
71
United States Diplomatic and Consular Staff in Tehran (US v. Iran), ICJ Rep. 1980 p. 3, 35.
Further: Chapter 6.
72 73
Mikulka (2010), 296. 1 Restatement Third §209, reporters’ note 7.
74
Dumberry (2007), Ch. 2. For recent state practice, see Dumberry, (2006) 49 GYIL 413.
448 collective or ancillary responsibility

produced by state practice reflects the position taken in Lighthouses

Arbitration, namely ‘the solution adopted in State practice . . . essentially
depends on the different types of mechanism of succession of States
involved’.75 These may be divided into two categories: those where the
predecessor state continues to exist relative to the successor state, and
those where it does not.

13.4.2 Succession where the predecessor ceases to exist

In some cases of state succession, the predecessor state will cease to
exist.76 Nonetheless, four examples of such extinction have taken place
in the post-1945 period; although not all have implications for succession
to responsibility, they are representative of the field. In the first place,
there are cases of voluntary absorption, where a state becomes part of
another state, extinguishing its personality. This occurred in the case
of the German Democratic Republic, which became part of the Federal
Republic of Germany in 1990,77 surrendering its seat at the UN in the
process.78
In the second place is extinction by merger. This occurred in the case of
the merger of North Yemen and South Yemen,79 both of which in 1990
surrendered their international identities in order to form the unitary
state of Yemen proper. The result has been described as a double succes-
sion with neither the North nor the South annexing the other, but rather
both becoming extinct in order to form a combined state.80

75
Dumberry (2007), 201.
76
Unless there is a recognized claim to continuity, as e.g. in the case of the dissolution of
the USSR: Crawford, Creation of States in International Law (2006), 705.
77
Treaty Establishing a Monetary, Economic and Social Union, 18 May 1990, 29 ILM 1108;
Treaty on the Unification of Germany, 31 August 1990, 30 ILM 457. Also Treaty on the
Final Settlement with Respect to Germany, 12 September 1990, 29 ILM 1186.
78
Generally: Ebke, (1990) 24 IL 1130; Frowein, (1991) 51 ZaöRV 333; Oeter, (1991) 51 ZaöRV
349; Frowein, (1992) 86 AJIL 152; Hailbronner, (1991) 2 EJIL 18; von der Dunk and
Kooijmans, (1991) 12 Mich. JIL 510; Bühler, in Eisemann and Koskenniemi (2000) 187,
233–49.
79
Ribbelink, (1995) 26 NYIL 139, 159; Crawford, Creation of States in International Law (2006),
705–6.
80
Goy, (1990) 36 AFDI 249, 263. This intention is revealed in Art. 1 of the Agreement on the
Establishment of the Republic of Yemen, 22 April 1990, 30 ILM 820:
On the 26th of May 1990 . . . there shall be established between the State of the
Yemen Arab Republic and the State of the People’s Democratic Republic of Yemen
(both parts of the Yemeni Homeland) a full and complete union, based on a
merger, in which the individual personality of each of them shall be integrated
into a single international person called the ‘Republic of Yemen’.
 succession to responsibility 449

The third form of state extinction is voluntary dissolution, as occurred in

relation to Czechoslovakia.81 At midnight on 31 December 1992 the
Czech and Slovak Federal Republic ceased to exist, and was replaced by
two new states, the Czech Republic and Slovakia. While the treaty
obligations of the predecessor state largely survived the dissolution,82
both states applied separately for membership in relevant international
organizations, including the UN.83
The fourth category is involuntary dissolution, as occurred in respect of
the Socialist Federal Republic of Yugoslavia (SFRY) after 1992.84 Up until
2000, the union of Serbia and Montenegro – adopting the name of the
Federal Republic of Yugoslavia (FRY) – took the view that it was the
successor to the SFRY85 in the same way that the Russian Federation is
considered the successor to the USSR. This was not accepted – although
the General Assembly did not question the FRY’s claim to statehood, it
was not considered the continuator of the SFRY, but one of five (now six)
former republics.86

13.4.2.1 The reunification of Germany

From 3 October 1990, the German Democratic Republic (GDR) was taken
to have ‘acceded’ to the Federal Republic of Germany (FRG). By virtue of
the Treaty on the Unification of Germany,87 its individual identity on the
international plane was absorbed by its western counterpart, and its
territory incorporated as five new Länder. Article 24(1) of the Treaty dealt
with the international responsibility of the GDR:
In so far as they arise from the monopoly on foreign trade and foreign currency
or from the performance of other state tasks of the German Democratic Republic
vis-à-vis foreign countries and the Federal Republic of Germany up to 1 July 1990,
the settlement of the claims and liabilities remaining when the accession takes

81
Scharf, (1995) 28 CILJ 29; Bühler (2000), 315–21; Crawford, Creation of States in
International Law (2006), 706–7.
82
UKMIL, (1994) 65 BYIL 571, 586–8. Further: Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 71–3.
83
See: SC Res. 800 (1993); GA Res. 47/221, 19 January 1993 (Slovakia); SC Res. 810 (1993); GA
Res. 47/222, 19 January 1993 (Czech Republic).
84
Bühler (2000), 274–314; Ortega Terol, in Eisemann and Koskenniemi (2000) 889;
Crawford, Creation of States in International Law (2006), 707–14; Oeter, (2007) 50 GYIL 457.
Generally: Radan, The Break-Up of Yugoslavia and International Law (2002), chs. 6–7.
85
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Provisional Measures, ICJ Rep. 1993, p. 3, 15.
86
Badinter Commission, Opinion No. 8, (1992) 92 ILR 199; Opinion No. 9, (1992) 92 ILR 203;
Opinion No. 10, (1992) 92 ILR 206. Further: SC Res. 757 (1992), op. §§4–8; SC Res. 1022
(1995), preamble. Also Crawford, Creation of States in International Law (2006), 707–8.
87
Treaty on the Unification of Germany, Art. 1(1).
450 collective or ancillary responsibility

effect shall take place under instructions from, and under the supervision of, the
Federal Minister of Finance.

This provision appears to have transferred liability for the GDR’s

delicts in international law to the FRG as successor.88
Two further examples of succession to responsibility can be identified
in the processes of German reunification. In 1990, a significant pending
issue was the resolution of claims for expropriation against the GDR for
the various programmes of nationalization that were undertaken during
the Cold War by the USSR (1945–9) and GDR (1949–90), and by the Nazi
regime during the Second World War (1939–45).89 In preparation for
unification, the GDR after many years of resistance undertook certain
reforms.90 First, it amended its constitution so as to remove the prohib-
ition on the private ownership of the means of production. Second, it
enacted laws for the return of private property confiscated after 1949,91
most notably the Law for the Settlement of Open Property Questions
(Property Act) of 29 June 1990, which was later incorporated into the
Treaty on the Unification of Germany.92 In addition, on 15 June 1990, the
GDR and the FRG entered into a Joint Declaration on the settlement of
outstanding issues of property rights, which also was to form part of the
Treaty.93 In a subsequent decision of the Federal Administrative Court, it
was held that the FRG could not be held responsible for internationally
wrongful acts committed by the GDR as a matter of principle; it was,

88
Oeter (1991), 381; Volkovitsch (1992), 2177–8; Dumberry, (2006) 49 GYIL 413, 422;
Dumberry (2007), 86–7. Cf. Quint, (1991) 50 Md LR 475, 534, who limits the operation of
the provision to international contractual obligations.
89
Generally: Quint (1991); Wilburn, (1991) 25 IL 649; Doyle, (1991) 13 Mich. JIL 832;
Dumberry, (2006) 49 GYIL 413, 422–5; Dumberry (2007), 86–91.
90
Zimmerman, in Piotrowicz and Blay (eds.), Unification of Germany in International and
Domestic Law (1997) 103; Dumberry, (2006) 49 GYIL 413, 423; Dumberry (2007), 88–9. This
led to the filing of 2.3 million applications for the restitution of real estate, 97.9 per cent
of which were resolved by 31 December 2005: www.badv.bund.de.
91
The legality of this exclusion was confirmed by both the German Constitutional Court
and the European Court of Human Rights, on the basis that Germany had no
responsibility for the acts of Soviet occupying forces during the period 1945–1949: Land
Reform, 84 BVerfGE 90 (1991), repr. in (1990) NJW 1569; Von Maltzan v. Germany, [2005]
ECtHR 71917/01 (and joined proceedings). Further: Doyle (1991); Stewart, (1991) 85
AJIL 690.
92
Treaty on the Unification of Germany, Annex II, Ch. III, s. B(I), No. 5. The Treaty also
provided in Art. 9(2) that the law will remain in force insofar as it is compatible with the
German Basic Law (Grundgesetz) and with the directly applicable law of the European
Communities (later the EU).
93
Treaty on the Unification of Germany, Annex III, Art. 41(1) provides that the Joint
Declaration ‘shall form an integral part of this treaty’.
 succession to responsibility 451

however, decided that as expropriated property seized by the GDR was

now part of a unified Germany, the GDR’s obligation of compensation
had passed to the FRG.94
The second example had its origins somewhat earlier. In 1974, the
GDR and the United States entered into negotiations in an attempt to
resolve the question of the East German expropriation of property owned
by American nationals.95 When no agreement was forthcoming, the
United States established a programme for the settlement of such claims
by the US Foreign Claims Settlement Commission,96 which by 1981 had
recognized 1,899 valid claims reflecting a total lump sum of US$78 mil-
lion.97 These claims remained unsettled until unification, whereupon
the FRG agreed to provide compensation for wrongful acts committed
by the GDR against US citizens between 1949 and 1976.98

13.4.2.2 The dissolution of the Socialist Federal Republic

of Yugoslavia
Following the dissolution of the SFRY, an attempt was made to resolve by
agreement all questions relating to the succession of states.99 After a
decade of negotiations, an Agreement on Succession Issues was con-
cluded, Article 4 of which establishes a Standing Joint Committee of
senior representatives of each successor state, charged with ensuring
the effective implementation of the Agreement.100 Annex F, Article 1,
provides:
All rights and interests which belonged to the SFRY and which are not otherwise
covered by this agreement (including, but not limited to, patents, trademarks,
copyrights, royalties, and claims of and debts due to the SFRY) shall be shared

94
BVerwG 7 B 2.99 (1999), repr. in (1999) NJW 3354. Further: Dumberry, (2006) 49 GYIL
413, 425–6; Dumberry (2007), 90.
95
Agreed Minutes on Negotiations Concerning the Establishment of Diplomatic Relations
between the United States of America and the Germany Democratic Republic, with
exchange of letters, 4 September 1974, TIAS 7937. On the process, see generally
Wilburn (1991).
96 97
22 USC §1644. Wilburn (1991), 651–2.
98
Agreement between the Government of the Federal Republic of Germany and the
Government of the United States of America Concerning the Settlement of Certain
Property Claims, 13 May 1992, 1911 UNTS 27. Further: Dumberry, (2006) 49 GYIL 413,
425–6; Dumberry (2007), 91–3.
99
Badinter Commission, Opinion No. 9, (1992) 92 ILR 203, 205; UN/EC Conference on the
Former Yugoslavia, Statement of Principles, 26 August 1992, 31 ILM 1527, principle (ix);
SC Res. 1022 (1995), op. §6. Also Agreement on the Normalization of Relations, 23
August 1996, 35 ILM 1219.
100
10 April 2001, 41 ILM 3. Further: Watts, (2002) 41 ILM 1; Stahn, (2002) 96 AJIL 379.
452 collective or ancillary responsibility

among the successor States, taking into account the proportion for division of
SFRY financial assets in Annex C of this Agreement. The division of such rights
and interests shall proceed under the direction of the Standing Joint Committee
established in Article 4 of this Agreement.

Annex F, Article 2 of the Agreement provides that all claims against

the SFRY not otherwise covered by the Agreement will be considered by
the Committee. This suggests that issues arising from the international
responsibility of the SFRY were not treated as simply disappearing, with
the precise division of liability between them being determined by the
Committee.101

13.4.3 Succession where predecessor continues to exist

In other cases of state succession, the predecessor state continues to exist
in some form. An example is cession of territory,102 the simple transfer
of territory from one existing state to another. The question of succes-
sion to responsibility in such a case may arise where an internationally
wrongful act was perpetrated by the predecessor state on the territory in
question prior to its transfer to the successor state.

13.4.3.1 Separation from the Union of Soviet

Socialist Republics103
Several events arising out of the collapse of the USSR have implications
for the law of succession to responsibility.104 The first such instance is
the measures taken with respect to the pre-revolutionary Russian bonds
which were nationalized following the Russian Revolution in 1917. Until
the end of the Cold War, the Soviet government consistently maintained
that it was not responsible for the debts incurred by its Tsarist predeces-
sor. A final settlement on the matter was reached between France and
Russia on 27 May 1997 whereby Russia would pay France US$400 million
in exchange for both signatories relinquishing all other claims, including
claims of diplomatic protection. Russia’s payment in this respect was ex
gratia, and cannot thereby be taken as recognition on its part of responsi-
bility for acts committed after 1917; nonetheless, Russia is clearly seen to

101
Dumberry, (2006) 49 GYIL 413, 430–1; Dumberry (2007), 119–22.
102
Dörr, ‘Cession’, (2006) MPEPIL.
103
Decision by the Council of Heads of State of the Commonwealth of Independent States,
21 December 1991, 31 ILM 151, op. §1. Generally: Blum, (1992) 3 EJIL 354; Bühler (2000),
258–63.
104
Dumberry, (2006) 49 GYIL 413, 433–7; Dumberry (2007), 150–7.
 succession to responsibility 453

be the continuator of the RSFSR (i.e. the Soviet entity which existed prior
to the formation of the USSR in 1922).
The second event recognized by Dumberry in this respect is the pillage
of cultural artefacts by Soviet troops in Germany towards the end of the
Second World War and after.105 Following the disintegration of the
USSR, Russia and Germany concluding an agreement for the return of
the relevant works. Article 15 of this Agreement provides:
The contract parties agree that missing or illegally removed cultural goods
located in their territory must be returned to their owners or the legal successors
thereof.106

This may be taken as a commitment by Russia to provide reparations

to Germany for the delicts of the USSR, although presumably on the basis
of continuity, not succession.

13.4.3.2 The independence of Namibia

It was generally agreed that Namibia was not to be considered the
successor state to South Africa – a consensus as to tabula rasa apparently
reached well before Namibia’s independence. But when Namibia actually
declared its independence in 1990, Article 140(3) of its Constitution
provided:
Anything done under such laws prior to the date of Independence by the Govern-
ment, or by a Minister or other official of the Republic of South Africa shall be
deemed to have been done by the Government of the Republic of Namibia or by a
corresponding Minister or official of the Government of the Republic of Namibia,
unless such action is subsequently repudiated by an Act of Parliament, and
anything so done by the Government Service Commission shall be deemed to
have been done by the Public Service Commission referred to in Article 112
hereof, unless it is determined otherwise by an Act of Parliament.

This establishes Namibia’s prima facie succession to responsibility vis-à-

vis South Africa.107 Dumberry links it to the end of the apartheid regime
in South Africa in February 1990.108 But it is worth noting that
105
It is estimated that some 2.5 million works of art and cultural relics were transferred
from Germany to the USSR during the period of occupation 1945–1949. Some were
returned to the GDR in the 1960s and 1970s: Dumberry (2006), 49 GYIL 413, 435.
Further: Gattini, (1996) 7 EJIL 67; Wilske, (1999) 3 UCLA JILFA 223.
106
Agreement between the Republic of Germany and the Russian Federation over Cultural
Cooperation, 16 December 1992, 1993-II BGBl 1256, Art. 15 (author’s translation).
107
Dumberry, (2006) 49 GYIL 413, 438–9; Dumberry (2007), 192–4. On the provision
generally, see Strydom, (1989–90) 15 S. Af. YIL 111.
108
Dumberry (2007), 193.
454 collective or ancillary responsibility

Namibia’s acquiescence to responsibility is conditional, and that it

reserved the right to dissociate itself from South Africa’s actions.
The scope of Article 140(3) was investigated by a Namibian court in
Mwandinghi v. Minister of Defence.109 There, the applicant was injured by
forces operating in Namibia under the control of the South African
Minister of Defence. On Namibia’s independence, the applicant sought
to substitute the Minister of Defence of Namibia as defendant on the
basis that Namibia had accepted liability via Article 140(3). The Namib-
ian government argued that Article 140(3) had no such effect, but also
relied on Article 145 of the constitution, which provided that:
(1) Nothing contained in this Constitution shall be construed as imposing on
the Government of Namibia:
(a) any obligations to any other State which would not otherwise have
existed under international law;
(b) any obligations to any person arising out of the acts or contracts of a
prior administration which would not otherwise have been recognised
by international law as binding on the Republic of Namibia.

In the High Court, Strydom AJP noted that the Article 140(3)
(‘[a]nything done’) was not restricted to lawful acts.110 Further, Article
145 did not prevent the substitution. While the court accepted ‘for the
purposes of this case’ that ‘in international law a new State is not liable
for the delicts of its predecessor’,111 it went on to state that the positive
acceptance of liability – as seen in Lighthouses Arbitration and reflected in
Article 140(3) – was according to all commentators perfectly accept-
able.112 Thus ‘[i]n the present case the new State chose to accept liability,
subject to its right to repudiate, and is therefore liable.’113 The Supreme
Court concurred with this view,114 and further emphasized that the

109
(1990) 91 ILR 341. Further: Booysen, (1991) 21 CILSA 204; Botha, (1990–1) 16 S. Af. YIL
156; Botha, (1991–2) 17 S. Af. YIL 177.
110
(1990) 91 ILR 341, 351.
111
Ibid., 353. Strydom AJP was not expressing unqualified support for the negative
succession rule: he mentioned the tribunal’s doubt in the Lighthouses Arbitration. His
position was merely that non-succession was the de facto rule in this particular case:
ibid., 353–5.
112
Ibid., 354–5: ‘I know of no principle whereby international law can step in and undo
such an acceptance by a State.’
113
Ibid., 355.
114
Ibid., 366–8, citing O’Connell, 1 International Law (2nd edn, 1970), 267. For some
tangential criticisms of the Supreme Court’s approach, and particularly its handling of
Draft Articles, Art. 10, see Dumberry, (2006) 49 GYIL 413, 441; Dumberry (2007),
196–201.
 succession to responsibility 455

use of the term ‘not otherwise have been recognized by international law’
(emphasis added) in Article 145 was not intended by the drafters of the
constitution to refer to obligations which were recognized to exist per se
by international law, but to exclude liability for those acts which were
not accorded legal recognition in international law – that is, violations of
peremptory norms.115

13.5 Conclusions
On the basis of this practice, it is difficult to reach any conclusions of
general application with regard to succession to responsibility. However,
the fact-sensitive approach to such issues promoted in the Lighthouses
Arbitration, and advanced further by O’Connell, Verzijl and Dumberry,
seems preferable to the negative succession rule posited by Robert
E. Brown, Hawaiian Claims and commentators such as Hurst.
As to situations in which the relevant predecessor state ceased to exist
following succession, it is significant that in each of the cases identified,
the successor state voluntarily accepted liability with respect to the
unlawful acts of its predecessor. By contrast, states are far less likely to
accept a transfer of state responsibility where the predecessor state
remains extant. As Volkovitsch notes,
A clear line of practice and precedent demonstrates that primary responsibility in
such cases remains with the predecessor state and that former colonies and
victims of occupation will only be held responsible for their predecessor’s delic-
tual liability if they have expressly agreed to assume it.116

This position is reflected in the decisions of the various international

and domestic courts, from Lighthouses Arbitration to Mwandinghi and
Gabčı́kovo-Nagymaros.

115
(1991) 91 ILR 314, 369–9, citing Brownlie, Principles of Public International Law (4th edn,
1990), 513. A similar point was made by Strydom AJP: (1990) 91 ILR 341, 354. Further:
Chapter 16. For the further development of Art. 140(3) in the context of purely
municipal acts of a predecessor government, see Government of Namibia v. Cultura 2000,
(1993) 103 ILR 104.
116
Volkovitsch (1992), 2201.
Part V
Cessation and reparation
14 Restoration of legal relations
after breach

14.1 Introduction
Part II of the ARSIWA sets out the legal consequences for a state con-
sidered to be responsible in accordance with the provisions of Part I.
It focuses on the ‘new legal [relation] which arises upon the commission
by a State of an internationally wrongful act’.1 This chapter considers
Articles 28–30 of Part Two. It is Article 28 that establishes the connection
between Parts One and Two of the ARSIWA. Articles 29 and 30 deal with
the restoration of the underlying legal relations. Article 29 is concerned
with the continuation of those relations. It provides that the duty of the
responsible state to perform the obligation breached is not affected by
the legal consequences set out in Part Two. Article 30 is concerned with
the repair of those relations. Paragraph (a) sets out the obligation to cease
an internationally wrongful act if it is continuing. Paragraph (b) provides
that there is an obligation to offer appropriate assurances and guaran-
tees of non-repetition of the wrongful act if the circumstances require.
These paragraphs can be seen to address the negative and positive
aspects of future performance respectively. Article 30(a) is concerned
with securing an end to wrongful conduct; Article 30(b) is concerned with
the prevention of future wrongful conduct.2
The general principle underlying the obligations of cessation and to
offer assurances and guarantees of non-repetition is respect for the rule
of law.3 As the commentary to Article 30 states,
The function of cessation is to put an end to a violation of international law and
to safeguard the continuing validity and effectiveness of the underlying primary

1 2
ARSIWA Commentary, Pt II, §1. ARSIWA Commentary, Art. 30, §1.
3
Corten, in Crawford, Pellet and Olleson (2010) 545, 545.

459
460 cessation and reparation

rule. The responsible State’s obligation of cessation thus protects both the inter-
ests of the injured State or States and the interests of the international commu-
nity as a whole in the preservation of, and reliance on, the rule of law.4

The same is true of the obligation to offer assurances and guarantees of

non-repetition. As Tams states, ‘in situations involving breaches of gen-
eral international law or multilateral treaties . . . a future-oriented obli-
gation to prevent future breaches can hardly be limited to bilateral legal
relations between injured and responsible states’.5 This broader concern
is reflected in the proposition that a state which is not injured is entitled
to claim cessation and assurances and guarantees of non-repetition from
a responsible state in the collective interest in some circumstances.6
This chapter discusses in turn the legal effects of a breach, particularly
the continued duty of performance, the obligation of cessation and the
subject of assurances and guarantees of non-repetition.

14.2 Legal effects of the breach

14.2.1 The applicable secondary obligations
Article 28 establishes the connection between Parts One and Two of the
ARSIWA. It provides:
The international responsibility of a State which is entailed by an internationally
wrongful act in accordance with the provisions of Part One involves legal conse-
quences as set out in this Part.

There are two caveats to this proposition. First, the consequences set
out in Part Two only apply in respect of primary obligations owed to
states. While the provisions of Part One are applicable to all obligations
of states and not merely those which are owed to states, the scope of Part
Two is limited to the latter category of obligations.7 Article 33(2) makes it
clear that Part Two is without prejudice to situations in which the respon-
sibility of a state may be invoked by non-state entities, such as pursuant
to procedures available under human rights treaties and investment
protection agreements.8 Second, Part Two does not apply to the extent
that other rules of international law apply by way of lex specialis. This is
evident from the general statement in Article 55 that the ARSIWA do

4 5
ARSIWA Commentary, Art. 30, §5. Tams, (2002) 27 Yale JIL 441, 444.
6 7
ARSIWA, Art. 48, and see Chapter 11. ARSIWA, Art. 33(1).
8
See also ARSIWA Commentary, Art. 28, §3; Art. 33, §4.
 restoration of legal relations after breach 461

not apply to the extent that matters dealt with are governed by special
rules of international law.9

14.2.2 The continuation of the primary obligation

As the result of an internationally wrongful act, a new legal relation is
established between the responsible state and the state or states to whom
the obligation breached is owed. This arises on the occurrence of a
breach and without any requirement of invocation by the injured state.10
It does not affect the pre-existing relation established by the primary
obligation. Article 29 captures this distinction:
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.

Even if the responsible state complies with its obligations under Part
Two, it is not relieved from the duty to perform the obligation breached.11
Evidently, there is only a continued duty to perform the obligation
breached if the obligation itself subsists despite the breach. Whether,
and to what extent, the obligation does subsist is regulated by the rules
concerning the relevant primary obligation.12 For example, a state
injured by a material breach of a bilateral treaty may elect to terminate
that treaty.13 The termination of the primary obligation does not, how-
ever, affect the secondary obligations that arose prior to termination,
such as the obligation to make reparation.14

14.3 Cessation
Cessation is often the main focus of the controversy produced by wrong-
ful conduct.15 Article 30(a) provides:
The State responsible for the internationally wrongful act is under an obligation:
(a) to cease that act, if it is continuing . . .

In accordance with Article 2, wrongful acts encompass both acts and

omissions.16 The obligation of cessation has been confirmed on a
number of occasions by the ICJ. In Germany v. Italy the Court stated:
9 10
See also ARSIWA Commentary, Pt II, §2. ARSIWA Commentary, Art. 29, §3.
11 12
ARSIWA Commentary, Art. 29, §2. ARSIWA Commentary, Art. 29, §4.
13
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Art. 60.
14 15
ARSIWA Commentary, Art. 29, §3. ARSIWA Commentary, Art. 30, §4.
16
ARSIWA Commentary, Art. 30, §2.
462 cessation and reparation

According to general international law on the responsibility of States for inter-

nationally wrongful acts, as expressed in this respect by Article 30(a) of the
International Law Commission’s Articles on the subject, the State responsible
for an internationally wrongful act is under an obligation to cease that act, if it is
continuing.17

Article 30(a) raises a number of issues. The first is what it means for an
internationally wrongful act to be ‘continuing’. Second, there is the issue
of the distinction between the obligation of cessation and the continued
duty of performance of the primary obligation. A third issue is the
distinction between cessation and reparation.

14.3.1 Wrongful acts that are ‘continuing’

As stated by the tribunal in the Rainbow Warrior arbitration, for an order
of cessation there are ‘two essential conditions intimately linked, namely
that the wrongful act has a continuing character and that the violated
rule is still in force at the time in which the order is issued’.18 The second
condition is self-explanatory.19 The first condition will be satisfied where
the internationally wrongful act has a continuing character in the sense
used in Article 14, for example where a legislative provision is main-
tained which is incompatible with a treaty obligation of the enacting
state.20 The commentary states that also encompassed are ‘situations
where a State has violated an obligation on a series of occasions, imply-
ing the possibility of further repetitions’.21
Some conflate the violation of an obligation on a series of occasions
with composite acts in the sense used in Article 15.22 Article 15 is
‘limited to breaches of obligations which concern some aggregate of
conduct and not individual acts as such’. In other words their focus is
‘a series of acts or omissions defined in aggregate as wrongful’, such as
genocide.23 Composite acts are one form of conduct that gives rise to

17
Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), ICJ, 3 February
2012, §137. See also e.g. Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, ICJ Rep. 2004 p. 136, 197.
18
Rainbow Warrior (New Zealand/France), (1990) 82 ILR 500, 573. On continuing and
composite wrongful acts see also Chapter 8.
19
For case in which cessation was unavailable on the basis that the primary obligation was
held to be no longer in force see ibid., 573–4.
20
For a case in which cessation was unavailable on the basis that the internationally
wrongful act had come to an end see e.g. Pulp Mills on the River Uruguay (Argentina v.
Uruguay), ICJ Rep. 2010 p. 14, 102.
21 22
ARSIWA Commentary, Art. 30, §3. See e.g. Corten (2010), 547.
23
ARSIWA Commentary, Art. 15, §2 (emphasis added).
 restoration of legal relations after breach 463

continuing breaches.24 The commentary explicitly distinguishes

between composite acts and the violation of an obligation on a series of
occasions.25 During drafting, the language of Article 30(a) was amended
to clarify that the obligation of cessation applies also to situations in
which an obligation is violated on a series of occasions.26
Examples of situations in which an obligation is violated on a series of
occasions are found in human rights jurisprudence. In Ireland v. United
Kingdom,27 Ireland was entitled to complain of a practice made up by a
series of breaches of Article 7 of the European Convention for the
Protection of Fundamental Freedoms and Human Rights (ECHR)28 and
call for its cessation.29 The European Court stated:
The allegation accepted by the Commission under Article 3 concerned a practice
or practices and not individual cases as such. Accordingly, the Court’s sole task is
to give a ruling on that allegation . . . A practice incompatible with the [ECHR]
consists of an accumulation of identical or analogous breaches which are suffi-
ciently numerous and inter-connected to amount not merely to isolated incidents
or exceptions but to a pattern or system . . . [T]he rule [of exhaustion of domestic
remedies] does not apply where the applicant State complains of a practice as
such, with the aim of preventing its continuation or recurrence . . .30

In subsequent cases the European Court has affirmed that claims

concerning a practice alleged to be incompatible with the ECHR are
admissible.31
In Avena32 at least one of the bases on which Mexico sought cessation
was that the United States had violated its obligations under Article 36 of
the Vienna Convention on Consular Relations33 on a series of occasions.
This is clear from Mexico’s Memorial.34 As the Court recounted in its
judgment, Mexico claimed that
competent authorities of the United States regularly fail to provide the timely
notification required by Article 36 (1) (b) and thereby to [sic] frustrate the com-
munication and access contemplated by Article 36 (1) (a) and the assistance

24
ARSIWA Commentary, Art. 15, §1.
25
ARSIWA Commentary, Art. 15, §5. It is possible that the violation of an obligation on a
series of occasions could also constitute a composite act breaching a separate obligation.
For example, the wrongful act of genocide is usually made up of a series of acts which are
themselves internationally wrongful: ARSIWA Commentary, Art. 15, §9.
26 27
ILC Ybk 2000/II(2), 25–6. Ireland v. UK, [1978] ECtHR A/25.
28 29
4 November 1950, 213 UNTS 221. ARSIWA Commentary, Art. 15, §5.
30
Ireland v. UK, [1978] ECtHR A/25, §§157–9.
31
Georgia v. Russia, Admissibility, [2011] ECtHR 38263/08, §85, and the cases cited therein.
32
Avena and Other Mexican Nationals (Mexico v. US), ICJ Rep. 2004 p. 12.
33 34
24 April 1963, 596 UNTS 261. Avena, Memorial of Mexico, ICJ, 20 June 2003, §401.
464 cessation and reparation

contemplated by Article 36 (1) (c). These violations continue notwithstanding the

Court’s judgment in LaGrand and the programme described there.35

It does not appear that the Court dealt with the issue of whether there
was a continuing breach on the basis of repeated violations; at least it did
not do so explicitly.36 The Court dismissed the claim, merely stating:
Mexico emphasizes the necessity of requiring the cessation of the wrongful acts
because, it alleges, the violation of Article 36 with regard to Mexico and its 52
nationals still continues. The Court considers, however, that Mexico has not
established a continuing violation of Article 36 of the Vienna Convention with
respect to the 52 individuals referred to in its final submissions; it cannot
therefore uphold Mexico’s claim seeking cessation.37

Only Judge ad hoc Sepulveda appears to have considered the issue.38

14.3.2 The distinction between cessation and the continued

duty of performance
One issue raised in the drafting of Article 30(a) was the distinction
between the obligation of cessation and the continued duty of perform-
ance of the underlying obligation, specifically whether the former is
merely a function of the latter. The ILC’s view can be seen to have
evolved over time. What became Article 30(a) originated in an article
proposed by Special Rapporteur Riphagen. In 1981 he stated:
[T]he first duty of the author State is to stop the breach of its international
obligation. It does not seem relevant whether one considers this duty as a
consequence of the continuing ‘validity’ or ‘force’ of the primary obligation or
as a duty which arise as a consequence of the breach. Actually these are, so to
speak, the two sides of one and the same coin.39

The first reading commentary, in a paragraph adopted in 1993, states:

In terms of legal theory, cessation may be ascribed either to the continued
normal operation of the ‘primary’ rule of which the previous wrongful conduct
constitutes a violation or to the operation of the ‘secondary’ rule coming into
play as an effect of the occurrence of the wrongful act. The Commission is of
the view that the very distinction between primary and secondary rules is
a relative one and that cessation is situated, so to speak, in between the two
categories of rules.40

35 36
Avena, ICJ Rep. 2004 p. 12, 67. See also Thirlway, (2009) 80 BYIL 10, 174–5.
37
Avena, ICJ Rep. 2004 p. 12, 68.
38
Ibid., Separate Opinion of Judge ad hoc Sepúlveda, 99, 125.
39
Riphagen, Second Report, ILC Ybk 1981/II(1), 87.
40
Draft Articles Commentary, Art. 41, §4.
 restoration of legal relations after breach 465

But it is not clear that cessation is a mere function of the obligation to

comply with the primary norm and not a secondary consequence of a
breach.41 The commentary now states:
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.42

14.3.3 The distinction between cessation and restitution

An issue of more practical importance is the distinction between cessa-
tion and forms of reparation, particularly restitution. The result of
cessation may be indistinguishable from that of restitution, for example
where the conduct required by each is the freeing of hostages or the
return of objects and premises seized.43 It is nonetheless necessary to
distinguish between cessation and restitution, as restitution is subject to
limitations that cessation is not. First, restitution is only required to the
extent that it is not materially impossible and that it does not involve a
burden out of all proportion to the benefit deriving from restitution
instead of compensation.44 There may be an obligation of cessation even
when literal return to the status quo ante is excluded or can only be
achieved in an approximate way.45 While the consequences of past acts
cannot always be erased, it is always possible to take action in relation to
future events.46 Second, in general an injured state may specify the form
that reparation should take.47 However, there may be an obligation of
cessation even if an injured state declines to seek restitution.48
A number of cases touch on the relation between cessation and resti-
tution. For example, in Rainbow Warrior the Secretary-General issued a
41
Crawford, Third Report, 22.
42
ARSIWA Commentary, Art. 30, §6. See Crawford, Third Report, 22, for further reasons
why cessation is a secondary consequence of a breach. These reasons were supported by
the ILC: ILC Ybk 2000/II(2), 25.
43 44
ARSIWA Commentary, Art. 30, §7. ARSIWA, Art. 35.
45 46
ARSIWA Commentary, Art. 30, §7. Corten (2010), 548.
47
ARSIWA, Art. 43(2)(b).
48
See Crawford, Third Report, 64; ARSIWA Commentary, Art. 30, §8; ARSIWA
Commentary, Art. 43, §6.
466 cessation and reparation

binding ruling that the agents concerned should be detained at a French

military facility on the island of Hao for three years.49 Before the end of
the three-year period, the agents were removed to France. The tribunal
held that France had breached its obligations in removing one of the
agents and in failing to order the return of both.50 The majority of the
tribunal held that France’s obligations had expired three years after
the date on which the agents had arrived on Hao, so it could not be
said that France was still in breach of its obligations.51 New Zealand
argued that the appropriate remedy was restitution, in the form of the
return of the agents to Hao for the balance of the three-year term. The
majority accepted France’s submission that in effect New Zealand was
seeking cessation, not restitution.52 But an order for cessation could not
be made given that the primary obligation was no longer in force.53
It has been said that the ‘relation of these two concepts [of cessation
and restitution] seems to have caused confusion to the Tribunal in the
Rainbow Warrior’ and that ‘the confusion . . . left New Zealand without an
adequate remedy for the violation of its rights by France’.54 An order of
restitution would not have provided New Zealand with an adequate
remedy in the circumstances. It is true, as the tribunal noted, that ‘in
those cases where material restitution of an object is possible, the expiry
of a treaty obligation may not be, by itself, an obstacle for ordering
restitution’.55 But, as the commentary states, ‘[e]vidently the return of
the two agents to the island was of no use to New Zealand if there was no
continuing obligation on the part of France to keep them there. Thus a
return to the status quo ante may be of little or no value if the obligation
breached no longer exists.’56
The majority appeared to distinguish between cessation and restitu-
tion on the basis that where a state in essence seeks a return to the
situation demanded by law, it seeks cessation and not restitution.57 Sir
Kenneth Keith cast doubt on the distinction drawn by the majority,
stating:
I do not find it necessary to come to a conclusion on . . . the characterization of
the request either as restitutio or as cessation, and the differences between them.

49
Rainbow Warrior, (1990) 82 ILR 500, 515–17, cited in ARSIWA Commentary, Art. 30, §8.
50
Rainbow Warrior, (1990) 82 ILR 500, 560, 566.
51
Ibid., 567–8. Sir Kenneth Keith dissented on this point: ibid., Separate Opinion of Sir
Kenneth Keith, 580, 584–90.
52 53 54
Ibid., 572. Ibid., 573. Gray, in Crawford, Pellet and Olleson (2010) 589, 590.
55 56
Rainbow Warrior, (1990) 82 ILR 500, 572–3. ARSIWA Commentary, Art. 30, §8.
57
Rainbow Warrior, (1990) 82 ILR 500, 571–2.
 restoration of legal relations after breach 467

Could I simply say that I am not sure, for instance, about the validity of the
distinction in theory or in practice. It is notable that the International Court
in deciding that the respondent States must take positive steps or refrain
from unlawful actions in the Teheran and Nicaraguan cases did not attach such
labels . . .58

It is clear that a return to the situation demanded by law can be the

result sought by way of a claim for restitution.
Also relevant is the Arrest Warrant case.59 In that case the ICJ held that
the issue and international circulation of an arrest warrant by Belgium
against the incumbent Minister of Foreign Affairs of the DRC violated
Belgium’s obligation to respect the immunity from criminal jurisdiction
and the inviolability which the minister enjoyed under international
law. The ICJ determined that the appropriate remedy was an order that
Belgium ‘must, by means of its own choosing, cancel the arrest warrant
of 11 April 2000 and so inform the authorities to whom that warrant was
circulated’.60 The ICJ clearly made this order on the basis of the obliga-
tion of restitution. After quoting from the Chorzów Factory case,61 the ICJ
stated that ‘[i]n the present case, “the situation which would, in all
probability, have existed if [the illegal act] had not been committed”
cannot be re-established merely by a finding by the Court that the arrest
warrant was unlawful under international law’.62 Belgium could equally
have been ordered to cancel the arrest warrant based on the obligation of
cessation. The ICJ acknowledged that the conduct of Belgium constituted
a continuing breach; it went on to state that the ‘warrant is still extant,
and remains unlawful, notwithstanding the fact that Mr Yerodia has
ceased to be Minister for Foreign Affairs’.63
In Germany v. Italy, the Court held that in allowing civil claims to be
brought against Germany in the Italian courts relating to violations of
international humanitarian law committed during the Second World
War, Italy had violated its obligation to respect the jurisdictional
immunity which Germany enjoys under international law.64 In fashion-
ing the appropriate remedy, the Court reasoned as follows:
In its fifth submission, Germany asks the Court to order Italy to take, by means of
its own choosing, any and all steps to ensure that all the decisions of its courts

58
Ibid., Sir Kenneth Keith sep. op., 580, 584.
59 60
Arrest Warrant of 11 April 2000 (DRC v. Belgium), ICJ Rep. 2002 p. 3. Ibid., 33.
61
Factory at Chorzów, Jurisdiction, (1927) PCIJ Ser. A No. 9.
62 63
Arrest Warrant, ICJ Rep. 2002 p. 3, 32. Ibid., 32.
64
Jurisdictional Immunities, ICJ, 3 February 2012, §139(1).
468 cessation and reparation

and other judicial authorities infringing Germany’s sovereign immunity become

unenforceable. This is to be understood as implying that the relevant decisions
should cease to have effect.
According to general international law on the responsibility of States for
internationally wrongful acts, as expressed in this respect by Article 30 (a) of
the International Law Commission’s Articles on the subject, the State responsible
for an internationally wrongful act is under an obligation to cease that act, if it is
continuing. Furthermore, even if the act in question has ended, the State respon-
sible is under an obligation to re-establish, by way of reparation, the situation
which existed before the wrongful act was committed, provided that re-
establishment is not materially impossible and that it does not involve a burden
for that State out of all proportion to the benefit deriving from restitution instead
of compensation. This rule is reflected in Article 35 of the International Law
Commission’s Articles.
It follows accordingly that the Court must uphold Germany’s fifth submission.
The decisions and measures infringing Germany’s jurisdictional immunities
which are still in force must cease to have effect, and the effects which have
already been produced by those decisions and measures must be reversed, in
such a way that the situation which existed before the wrongful acts were
committed is re-established.65

This decision highlights a distinction between cessation and restitu-

tion. To the extent that wrongful conduct produces broader effects, the
reversal of those effects falls within the obligation of restitution. As is
stated in the commentary, ‘[r]estitution involves the reestablishment as
far as possible of the situation which existed prior to the commission of
the internationally wrongful act, to the extent that any changes that
have occurred in the situation may be traced to that act.’66
These considerations dispose of the idea sometimes expressed that the
Court cannot make orders which equate to orders of specific perform-
ance against states.67 Of course, the language of specific performance
(peculiar to the common law) is not used, but in principle international
courts and tribunals can make orders having mandatory effect, whether
by way of declaration or otherwise. The content of those orders is a

65 66
Ibid., §137. ARSIWA Commentary, Art. 35, §1.
67
For example, Gray states that ‘the jurisdiction of the International Court of Justice to
give remedies such as specific performance or injunctions where there is no express
provision for this in the agreement from which the Court derives its jurisdiction is
not clear’: Gray, Judicial Remedies in International Law (1987), 95. However, she also states
that ‘[i]n those cases such as the Serbian Loans, Lighthouses, and Socobelge cases where
the Court declares that a contract has been duly entered into and is binding on the
parties or that an arbitral award is binding, although this is not formally an order for
specific performance it is clear what the parties ought to do’: ibid., 98.
 restoration of legal relations after breach 469

different question: for example, if the subject matter of an obligation

falls within the inherent competence of the state, as in the case of the
termination of a concession concerning the natural resources of the
state, a declaration of invalidity or an order to restore the status quo ante
may be inappropriate or even futile, and compensation the only effective
remedy.68 But in the context of a state-to-state obligation, there is nor-
mally no such inherent competence, and the governing principle is pacta
sunt servanda – expressed in most general terms, international obligations
are to be performed.69

14.4 Assurances and guarantees against repetition

Article 30(b) provides:
The State responsible for the internationally wrongful act is under an obligation:
...
(b) To offer appropriate assurances and guarantees of non-repetition, if
circumstances so require.

As with cessation, it is necessary for the primary obligation to subsist

for the issue of assurances and guarantees of non-repetition to arise,70
although it is not necessary for there to be a continuing breach. The
words ‘if circumstances so require’ indicate the ‘rather exceptional char-
acter of the measures’.71 Whether assurances and guarantees of non-
repetition are required will depend on the circumstances of the case,
particularly the nature of the obligation breached and the breach itself.72

14.4.1 The status of the obligation to offer assurances and guarantees

Whether an obligation to offer assurances and guarantees of non-
repetition arises as a legal consequence of responsibility was much

68
The appropriateness of the mandatory order, equivalent to specific performance, in
Texaco v. Libya, (1977) 53 ILR 389, 511, has been questioned on this ground: cf. LIAMCO v.
Libya, (1977) 62 ILR 140, 197–9. The ultimate effect of the Texaco order was, it appears, a
higher settlement.
69
Thus in Belgium v. Senegal the Court made a mandatory order by way of a declaration that
‘the Republic of Senegal must, without further delay, submit the case of Mr. Hissène
Habré to its competent authorities for the purpose of prosecution, if it does not extradite
him’: Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July
2012, §122(6).
70 71
ARSIWA Commentary, Art. 30, §1. ARSIWA Commentary, Art. 30, §13.
72
ARSIWA Commentary, Art. 30, §13.
470 cessation and reparation

debated in the ILC: indeed, of the articles discussed in this chapter this
paragraph was the most contentious.
As adopted on first reading, the provision that was to become Article
30(b) stated that the ‘injured State is entitled, where appropriate, to
obtain from the State which has committed an internationally wrongful
act assurances or guarantees of non-repetition of the wrongful act’.73 But
doubt was expressed as to
whether article [30(b)] can properly be formulated as an obligation at all. It may
be asked what the consequences of a breach of that obligation could be. For
example, could a State which had tendered full reparation for a breach be liable
to countermeasures because of its failure to give assurances and guarantees
against repetition satisfactory to the injured State? It does not seem very likely.
If, despite earlier assurances, there is a repetition of the breach, this may be
treated as a circumstance of aggravation, but that could be true in any event.74

In the ILC debates some questioned whether the offering of assurances

and guarantees of non-repetition could be regarded as a legal conse-
quence of responsibility, as opposed to a political or moral commitment,
and suggested the provision be deleted entirely.75 Most members sup-
ported the retention of Article 30(b),76 but were of the view that assur-
ances and guarantees of non-repetition are only required in limited
circumstances.77 Simma, for example, stated:
As it currently stood, the text might indeed be rather too broad and lenient, but
there were cases in which there was a real danger of a pattern of repetition . . .
That concern could be met by adopting the formulation proposed in the Sixth
Committee by the Czech Republic: instead of saying ‘where appropriate’, say ‘if
circumstances so require’, because there were undeniably circumstances which
required the wrongdoer to do more than merely apologize.78

This amendment to the text was subsequently made.

After these debates, but prior to the adoption of the ARSIWA, the
Court delivered its decision in LaGrand.79 The case concerned the United

73
Draft Articles, Art. 46.
74
Crawford, Third Report, 24. The chairman agreed with this comment: ILC Ybk 2000/I, 23.
75
ILC Ybk 2000/II(2), 26. See, e.g., the comments in ILC Ybk 2000/I, 12 (Pellet), 23
(Chairman). After the decision in Avena, Pellet stated that he ‘had withdrawn his
reservations about the fact that assurances and guarantees of non-repetition might be
withheld’, but he was adamant that assurances and guarantees of non-repetition were a
form of satisfaction: ILC Ybk 2001/I, 239.
76
ILC Ybk 2000/I, 28 (Crawford).
77
See, e.g., ILC Ybk 2000/I, 15 (Gaja), 16 (Kamto), 20 (Hafner), 27 (Tomka).
78 79
ILC Ybk 2000/I, 23 (Simma). LaGrand (Germany v. US), ICJ Rep. 2001 p. 466.
 restoration of legal relations after breach 471

States’ admitted failure to notify two arrested German nationals of their

rights under Article 36(1)(b) of the Vienna Convention on Consular
Relations. One was executed prior to the proceedings being filed, the
other between the Provisional Measures decision and the decision on the
merits. The United States submitted that the Court did not have jurisdic-
tion to order assurances and guarantees of non-repetition. The Court
disagreed, stating:
The Court considers 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 thus is 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. Consequently, the Court has
jurisdiction in the present case with respect to the fourth submission of Germany
[seeking assurances and guarantees of non-repetition].80

In relation to Germany’s general demand for an assurance of non-

repetition, the Court stated:
The United States has presented an apology to Germany for this breach. The
Court considers however that 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.
In this respect, the Court has taken note of the fact that the United States
repeated in all phases of these proceedings that it is carrying out a vast and
detailed programme in order to ensure compliance by its competent authorities
at the federal as well as at the state and local levels with its obligation under
Article 36 of the Vienna Convention.
. . . The Court considers that 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), must be regarded as meeting
Germany’s request for a general assurance of non-repetition.81

In the ILC, Gaja, speaking as chairman of the Drafting Committee,

explained:
[T]he discussion in the Drafting Committee had understandably revolved around
the interpretation that should be placed on the ruling . . . in [LaGrand]. Some
members of the Committee had seen the Court’s ruling as support for the

80
Ibid., 485 (internal reference omitted).
81
Ibid., 512–13. In relation to the more specific assurances sought by Germany, see ibid.,
513–14, 514.
472 cessation and reparation

retention of article 30, subparagraph (b), while others considered that the Court
had not taken a clear position on the obligation to provide assurances and
guarantees of non-repetition . . . It had, however, been agreed that, while the
decision in the LaGrand case was important, it was not the only basis on which
the Committee should decide on the issue of assurances and guarantees of non-
repetition. In the end, the Committee had decided to retain article 30, subpara-
graph (b), and article 48, paragraph 2 (a), on the grounds that the provisions were
drafted with great flexibility and introduced a useful policy. In particular, the
words ‘if circumstances so required’ clearly indicated that such guarantees and
assurances did not form a necessary part of the legal consequences of all inter-
nationally wrongful acts. Some members of the Committee, however, had held
that the provision lacked substantial roots in existing State practice and that
there was no clear evidence of an emerging principle of international law in that
direction.82

When President Guillaume visited the ILC he acknowledged that

the Court had definitely left some things unsaid and it had done so, in his view,
because it considered the issue of non-repetition to be unimportant in the case at
hand.83

The commentary to Article 30 does not suggest that Article 30(b) is

merely progressive development: nonetheless, some have suggested that
Article 30(b) is best viewed as such.84 Gaja’s comment that the provision
was retained on the basis that it ‘introduced a useful policy’ could also
suggest that conclusion. As noted by the ILC, there was state practice of
assurances and guarantees of non-repetition being given outside the
judicial context.85 However, it is unclear whether these assurances and
guarantees where given were based on a perceived legal obligation.86
During the drafting process, only two states made comments critical of
Article 30(b). Germany’s criticism that ‘[s]ome doubt exists, 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 to be appropriate’87 was answered by the change
in the wording of Article 30(b) referred to above. The United States
referred to ‘article 30 (b) on assurances and guarantees of non-repetition,

82 83
ILC Ybk, 2001/I, 239. ILC Ybk 2001/I, 213.
84
Barbier, in Crawford, Pellet and Olleson (2010) 551, 553; see also ILC Ybk 1993/I, 164
(Arangio-Ruiz); ILC Ybk 2000/I, 18 (Kamto).
85
ILC Ybk, 2000/I, 18 (Crawford), 18 (Tomka), 20 (Hafner), 28 (Crawford).
86
Higgins, in Crawford, Pellet and Olleson (2010) 537, 542; Barbier (2010), 553.
87
ILC Ybk 1998/II(1), 145 (emphasis added).
 restoration of legal relations after breach 473

which it believes should be deleted as it reflects neither customary

international law nor State practice’.88 This comment was likely influ-
enced by the pending decision in LaGrand. The vast majority of states did
not comment on Article 30(b).89
Assurances and guarantees of non-repetition have been sought in a
number of subsequent cases.90 The Court has stated that such requests
are ‘undoubtedly admissible’;91 ‘the Court may order, as it has done in
the past, a State responsible for internationally wrongful conduct to
provide the injured State with assurances and guarantees of non-
repetition’.92 But in no decision since 2001 up to the time of writing
has the Court held that a state was required to offer assurances and
guarantees of non-repetition. In some cases it has held that there was
nothing to indicate that the wrongful conduct would be repeated.93 In
two cases it has held that the conduct of the respondent state was suffi-
cient to meet the request for assurances and guarantees of non-repetition.
In Armed Activities on the Territory of the Congo it held that obligations
assumed by Uganda under an agreement with the DRC and Rwanda to
respect the sovereignty and territorial integrity of the DRC met the DRC’s
request for assurances and guarantees of non-repetition.94 In Avena it held
that what it said in respect of the United States’ programme in LaGrand
‘remains applicable, and therefore meets [the] request’.95
It is clear that the Court at least considers that it has the power to
order assurances and guarantees of non-repetition. However, in none of
the decisions in which assurances and guarantees of non-repetition have
been sought has the Court identified the basis on which it was discussing

88
ILC Ybk 2001/II(1), 57.
89
There were comments from the Czech Republic, Mongolia, Uzbekistan, the Netherlands
and the United Kingdom. See ILC Ybk 1998/II(1), 150–1; ILC Ybk 2001/II(1), 57.
90
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial
Guinea intervening), ICJ Rep. 2002 p. 303; Avena, ICJ Rep. 2004 p. 12; Armed Activities on the
Territory of the Congo (DRC v. Uganda), ICJ Rep. 2005 p. 168; Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), ICJ Rep. 2007, p. 43; Navigational and Related Rights (Costa Rica v. Nicaragua),
ICJ Rep. 2009 p. 213; Pulp Mills, ICJ Rep. 2010 p. 14; Application of the Interim Accord of 13
September 1995 (former Yugoslav Republic of Macedonia v. Greece), ICJ, 5 December 2011;
Jurisdictional Immunities, ICJ, 3 February 2012.
91
Cameroon v. Nigeria, ICJ Rep. 2001 p. 466, 452.
92
Navigational Rights, ICJ Rep. 2009 p. 213, 267; Pulp Mills, ICJ Rep. 2010 p. 14, 105.
93
Cameroon v. Nigeria, ICJ Rep. 2001 p. 466, 452; Bosnian Genocide, ICJ Rep. 2007 p. 43, 235;
Navigational Rights, ICJ Rep. 2009, p. 213, 267; Interim Accord, ICJ, 5 December 2011, §168;
Jurisdictional Immunities, ICJ, 3 February 2012, §138.
94
Armed Activities (DRC v. Uganda), ICJ Rep. 2005, p. 168, 256.
95
Avena, ICJ Rep. 2004, p. 12, 69.
474 cessation and reparation

the issue, referred to Article 30(b) or affirmed the existence of a free-

standing obligation to offer assurances and guarantees of non-repetition.
This is of little consequence for proceedings before the Court. But
whether there exists a customary international law obligation to offer
assurances and guarantees of non-repetition does have relevance for the
resolution of disputes outside the judicial context.
It is true that a number of decisions of the Human Rights Committee
have referred to the respondent state having an ‘obligation to ensure
that similar violations do not occur in the future’.96 However, this
obligation is sourced in Article 2 of the International Covenant on Civil
and Political Rights.97 Similarly, orders made by the Inter-American
Court of Human Rights requiring states to ensure that violations are
not repeated are based on Article 1 of the American Convention on
Human Rights.98
There continue to be examples of states seeking assurances and guar-
antees of non-repetition outside the judicial context. When China alleged
in 2009 that the United States had entered its exclusive economic zone in
the South China Sea, a spokesman of the Chinese Defence Ministry
stated: ‘We demand the United States respect our legal interests and
security concerns, and take effective measures to prevent a recurrence of
such incidents.’99 Similarly, when Japan alleged in 2011 that Chinese
ships had entered its territorial waters, it demanded that China prevent a
recurrence.100
Commentators are also divided over the status of the obligation to
offer assurances and guarantees of non-repetition. According to Stern,
‘one may entertain certain doubts as to the status of this obligation as a

96
For example, Judge v. Canada, (2002) UN Doc. CCPR/C/78/D/829/1998; Lobban v. Jamaica,
(2004) UN Doc. CCPR/C/80/D/797/1998; Brough v. Australia, (2006) UN Doc. CCPR/C/86/D/
1184/2003; Raihman v. Latvia, (2010) UN Doc. CCPR/C/100/D/1621/2007. Such decisions
are relied on, for example, by Barbier, in Barbier (2010), 555.
97
16 December 1966, 999 UNTS 171; Human Rights Committee, General Comment No.
31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant,
(2004) UN Doc. CCPR/C/21/Rev.1/Add.13, §17. See, e.g., Raihman v. Latvia, (2010) UN Doc.
CCPR/C/100/D/1621/2007, §10. See also Higgins (2010), 542.
98
22 November 1969, 1144 UNTS 123; Higgins (2010), 543. See e.g. Castillo Petruzzi v. Peru,
[1999] IACtHR 11.319, §222.
99
‘US warships head for South China Sea’, Independent, 13 March 2009, available at www.
independent.co.uk/news/world/americas/us-warships-head-for-south-china-sea-
1644484.html.
100
‘Japan protests over China ships in disputed waters’, Reuters, 24 August 2011, available
at www.reuters.com/article/2011/08/24/us-japan-china-disputes-
idUSTRE77N0R620110824.
 restoration of legal relations after breach 475

rule of positive law’. By contrast Barbier has stated that ‘[e]ven if caution
is in order, it can without doubt be considered that guarantees of non-
repetition are now part of the legal consequences of an internationally
wrongful act.’101 Even if there were considered to be a customary inter-
national law obligation to offer assurances and guarantees of non-
repetition, the question still arises: what are the consequences of a
failure to offer assurances and guarantees of non-repetition and what
additional consequence would there be if an assurance or guarantee
were not complied with?

14.4.2 The distinction between assurances and guarantees of

non-repetition and reparation
Special Rapporteur Riphagen originally envisaged guarantees against
repetition as a form of satisfaction.102 Special Rapporteur Arangio-Ruiz
was of the view that safeguards against repetition are a separate form of
reparation,103 and this view was reflected in the articles adopted on first
reading.104 The first reading commentary explained that ‘[u]nlike 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. They furthermore presuppose a risk of repetition of the wrong-
ful act . . . [T]he injured State demands guarantees against repetition
because it feels that the mere restoration of the normal, pre-existing
situation does not protect it satisfactorily.’105
Whether assurances and guarantees are a form of satisfaction caused a
marked division of opinion during the drafting of Article 30(b).106
Although the ILC ultimately concluded that assurances and guarantees
of non-repetition were better considered as an aspect of the continuation
and repair of the legal relationship affected by the breach, there is
nonetheless some overlap between assurances and guarantees of non-
repetition and satisfaction in practice. The commentary to both Article
30 and Article 37, which deals with satisfaction, acknowledges that
assurances and guarantees of non-repetition can constitute a form of
satisfaction.107

101
Stern, in Ragazzi (2005) 93, 104; Barbier (2010), 555.
102
Riphagen, Second Report, ILC Ybk 1981/II(1), 101.
103
Arangio-Ruiz, Second Report, ILC Ybk 1989/II(1), 43.
104 105
Draft Articles, Arts. 42(1), 46. Draft Articles Commentary, Art. 46, §§1–2.
106
See e.g. ILC Ybk 2001/I, 212 (Pellet).
107
ARSIWA Commentary, Art. 30, §11; ARSIWA Commentary, Art. 37, §5.
476 cessation and reparation

This is not merely an issue of classification, but an issue with practical

consequences. If assurances and guarantees of non-repetition are purely
a form of satisfaction they would only be available to the extent an injury
cannot be made good by restitution or compensation.108 If that were the
case, a state other than an injured state would also not be able to seek
assurances and guarantees of non-repetition in the collective interest.109

14.4.3 Appropriate assurances and guarantees

Whether assurances and guarantees of non-repetition are required will
depend on the character of the obligation and of the breach and on
whether there is a real risk of repetition.110 This calls for a case-by-case
analysis. The distinction between assurances of non-repetition and guar-
antees of non-repetition is that assurances are normally given verbally,
whereas guarantees involve something more, such as the taking of
preventive measures.111 The commentary gives examples of assurances
and guarantees of non-repetition sought in diplomatic practice from the
turn of the twentieth century.112
In LaGrand the Court stated that where a foreign national was not
advised of their rights under Article 36 and was ‘subjected to prolonged
detention or sentenced to severe penalties’, as occurred with the individ-
uals in question, an apology would not be sufficient.113 The Court con-
sidered that the programme undertaken by the United States met
Germany’s request for a general assurance of non-repetition. In so hold-
ing, the Court suggests that what is required is the use of ‘best efforts’ to
avoid repetition, as opposed to an assurance or guarantee that no viola-
tion will ever occur again: the ‘programme in question certainly cannot
provide an assurance that there will never again be a failure by the
United States to observe the obligation of notification under Article 36
of the Vienna Convention. But no State could give such a guarantee and
Germany does not seek it.’114 In Avena, before reaffirming its conclusion
in LaGrand, the Court observed:
While it is a matter of concern that, even in the wake of the LaGrand Judgment,
there remain a substantial number of cases of failure to carry out the obligation
to furnish consular information to Mexican nationals, the Court notes that the
United States has been making considerable efforts to ensure that its law

108 109
ARSIWA, Art. 37(1). ARSIWA, Art. 48(2); Barbier (2010), 556–7.
110 111
ARSIWA Commentary, Art. 30, §13. ARSIWA Commentary, Art. 30, §12.
112 113
ARSIWA Commentary, Art. 30, §§12–3. LaGrand, ICJ Rep. 2001, p. 466, 512.
114
Ibid., 513.
 restoration of legal relations after breach 477

enforcement authorities provide consular information to every arrested person

they know or have reason to believe is a foreign national.115

In LaGrand the Court stated that if the situation arose again despite the
United States’ programme,
it would be incumbent upon the United States to allow the review and reconsider-
ation of the conviction and sentence by taking account of the violation of the
rights set forth in the Convention. This obligation can be carried out in various
ways. The choice of means must be left to the United States.116

It is unclear where this ‘duty of the United States to address viola-

tions’117 flows from. Higgins, writing extrajudicially, stated that it ‘could
be viewed either as a reiteration of a primary obligation, or as a remedy
for breach’.118 The judgment in Avena makes it clear that this duty is not
a consequence of the obligation to offer assurances and guarantees of
non-repetition, but either a component of the obligation under Article
36(2) or required by way of reparation for a breach of Article 36(1). The
Court referred to the ‘review and reconsideration of conviction and
sentence required by Article 36, paragraph 2, which is the appropriate
remedy for breaches of Article 36, paragraph 1’.119 Thus the Court’s
statement that the ‘choice of means must be left to the United States’
does not reflect the character of assurances and guarantees that the
Court can award. These decisions also suggest that it is not particularly
onerous to meet a request for assurances and guarantees of non-
repetition.
In Armed Activities on the Territory of the Congo, the DRC requested that
Uganda provide assurances and guarantees of non-repetition of the
wrongful acts complained of, which included violations of the principle
of non-use of force and the principle of non-intervention. The DRC
alleged that assurances and guarantees of non-repetition were justified
on the basis of threats made, including an alleged statement by the then
Minister of Foreign Affairs that ‘the withdrawal of our troops from the
Democratic Republic of the Congo does not mean that we will not
return there to defend our security!’120 The DRC requested ‘a solemn
declaration that [Uganda] will in future refrain from pursuing a policy

115 116
Avena, ICJ Rep. 2004, p. 12, 68. LaGrand, ICJ Rep. 2001, p. 466, 514.
117 118
Ibid., 514. Higgins, in Ragazzi (2005) 271, 278 n. 48.
119
Avena, ICJ Rep. 2004, p. 12, 70. See also ibid., 72.
120
Armed Activities (DRC v. Uganda), ICJ Rep. 2005, p. 168, 255.
478 cessation and reparation

that violates the sovereignty of the Democratic Republic of the Congo

and the rights of its population’ and ‘demands that specific instructions
to that effect be given by the Ugandan authorities to their agents’.121 The
Court considered that an agreement entered into between the DRC,
Uganda and Rwanda after proceedings were filed with the Court which,
inter alia, emphasized ‘the need to ensure that the principles of good
neighbourliness, respect for the sovereignty, territorial integrity, and
non-interference in the internal affairs of sovereign states are respected,
particularly in the region’ met the DRC’s request for assurances and
guarantees of non-repetition.122 The Court reasoned:
[I]f a State assumes an obligation in an international agreement to respect the
sovereignty and territorial integrity of the other States parties to that agreement
(an obligation which exists also under general international law) and a commit-
ment to cooperate with them in order to fulfil such obligation, this expresses a
clear legally binding undertaking that it will not repeat any wrongful acts. In the
Court’s view, the commitments assumed by Uganda under the Tripartite Agree-
ment must be regarded as meeting the DRC’s request for specific guarantees and
assurances of non-repetition. The Court expects and demands that the Parties
will respect and adhere to their obligations under that Agreement and under
general international law.123

This is reflective of a broader tendency on the part of the Court to

consider that the existence of the international obligation breached and
the Court’s declaration that a state’s previous conduct was a breach of
that obligation is a sufficient protection against repetition. In Cameroon v.
Nigeria, the Court stated:
[T]he Judgment delivered today specifies in definitive and mandatory terms the
land and maritime boundary between the two States. With all uncertainty
dispelled in this regard, the Court cannot envisage a situation where either Party,
after withdrawing its military and police forces and administration from the
other’s territory, would fail to respect the territorial sovereignty of that Party.124

Similarly, in Germany v. Italy the Court stated:

[A]s a general rule, there is no reason to suppose that a State whose act or conduct
has been declared wrongful by the Court will repeat that act or conduct in the
future, since its good faith must be presumed. Accordingly, while the Court may
order the State responsible for an internationally wrongful act to offer assur-
ances of non-repetition to the injured State, or to take specific measures to ensure

121 122 123

Ibid. Ibid., 255–6. Ibid., 256.
124
Cameroon v. Nigeria, ICJ Rep. 2001, p. 466, 452.
 restoration of legal relations after breach 479

that the wrongful act is not repeated, it may only do so when there are special
circumstances which justify this, which the Court must assess on a case-by-case
basis.125

But Avena was an example of ‘[s]ome countries [that] simply apologized

each time and then went on to continue their violations in an almost
routine fashion’.126
The reluctance of the Court to order assurances and guarantees of non-
repetition is evident from extrajudicial writings of Rosalyn Higgins:
[T]hese remedies have the ‘characteristics of being future-looking’ and concerned
with ‘other potential breaches’.
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 sufficient 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 nation-
als 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 adminis-
tration of judicial proceedings, suggest to this writer that assurances and guar-
antees should be approached with the greatest caution.127

125
Jurisdictional Immunities, ICJ, 3 February 2012, §138. See also Interim Accord, ICJ, 5
December 2011, §168.
126 127
ILC Ybk 2000/I, 23 (Simma). Higgins (2010), 543.
15 Reparation

15.1 The basic principle

The classic general statement of the consequences of an internationally
wrongful act was made by the Permanent Court in the Chorzów Factory
case, in the following words: ‘[i]t is a principle of international law that
the breach of an engagement involves an obligation to make reparation
in an adequate form.’1 The Chorzów Factory case was brought by Germany
against Poland in relation to injury suffered by two German companies
when Poland took possession of the factory in question. The Permanent
Court was using the term ‘reparation’ in its most general sense.2 It was
rejecting Poland’s argument that the Court’s jurisdiction to interpret
and apply the relevant treaty did not entail jurisdiction to deal with
disputes over the form and amount of reparation to be made.3
In a subsequent phase of the same case, the Permanent Court went on
to specify the content of the obligation to make reparation in more
detail:
The essential principle contained in the actual notion of an illegal act – a
principle which seems to be established by international practice and in particu-
lar by the decisions of arbitral tribunals – is that reparation must, as far as

1
Factory at Chorzów, Jurisdiction, (1927) PCIJ Ser. A No. 9, 21.
2
Crawford, Third Report, 17.
3
The Court went on to state that ‘[r]eparation 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’:
Factory at Chorzów, Jurisdiction, (1927) PCIJ Ser. A No. 9, 21. On the issue of jurisdiction to
award reparation, see Chapter 19. By this stage of the dispute, Germany was already no
longer seeking the return of the factory in question or of the property seized with it:
Factory at Chorzów, Jurisdiction, (1927) PCIJ Ser. A No. 9, 17.

480
 reparation 481

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.4

This definition of the obligation to make reparation, emphasizing its

function of re-establishing the status quo ante, has been reaffirmed on
numerous occasions, by the International Court,5 investment tribunals,6
international human rights courts and committees,7 and other bodies.8

15.2 ‘Full’ reparation

15.2.1 The position taken in the ARSIWA
During the drafting of the ARSIWA, members of the ILC raised concerns
about the obligation to provide ‘full’ reparation. These included the
objection that what is required is not ‘full’ reparation but ‘as much
reparation as possible’ and the objection that in determining reparation
due, a responsible state’s ability to pay should be taken into account.9 On
the other hand, there was a feeling that as the expression ‘full repar-
ation’ had appeared in the Draft Articles and had not been criticized to a
significant extent by governments, the expression should be retained.10
The Drafting Committee ultimately decided not to include any term
qualifying the expression ‘full reparation’. In explanation, it merely
stated that ‘the Committee had decided to retain the wording of the
article adopted on first reading as a statement of the general principle
of reparation’.11 It was nonetheless clearly accepted that the obligation
to provide ‘full reparation’ only requires the elimination of the

4
Factory at Chorzów, (1928) PCIJ Ser. A No. 17, 47.
5
See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 232; Ahmadou Sadio
Diallo (Guinea v. DRC), ICJ, 30 November 2010.
6
See, e.g., CME v. Czech Republic, Partial Award, (2001) 9 ICSID Reports 121, 239.
7
See, e.g., Papamichalopoulos v. Greece, [1995] ECtHR 14556/89; Velásquez Rodrı́guez case,
[1989] IACtHR Ser. C No. 7.
8
See, e.g., Final Award: Eritrea’s Damages Claims, (2009) 26 RIAA 505, 524; Final Award:
Ethiopia’s Damages Claims, (2009) 26 RIAA 631, 651. ARSIWA, Pt II, which contains the
articles dealing with reparation, applies only in relation to obligations owed to states and
so does not apply to situations in which the responsibility of a state is invoked by a non-
state entity, such as pursuant to procedures available under human rights treaties and
investment protection agreements. However, in many of these cases, the international
law of state responsibility concerning reparation is nonetheless applied by analogy.
9 10
ILC Ybk 2000/II(2), 27. Ibid.
11
ILC Ybk 2000/I, 388 (Chairman of the Drafting Committee).
482 cessation and reparation

consequences of a wrongful act ‘as far as possible’, as stated in the

Chorzów Factory case.12
Concerns about the potential inability of states to provide reparation
due did, however, influence the wording of several other provisions of
the ARSIWA. Draft Article 42(3) had stated that ‘[i]n no case shall repar-
ation result in depriving the population of a State of its own means of
subsistence’. Some members of the ILC considered that the provision was
of critical importance for developing states. However, both ILC members
and governments commented that such a provision would be open to
abuse.13 Importantly, there was no historical example which supported
the retention of the provision. Instances in which compensation pay-
ments had been delayed could be explained on the basis of the defences
of necessity or distress and in other instances full reparation had been
waived.14 The issue was better addressed in the individual provisions
dealing with the different forms of reparation and in the context of
countermeasures.15
This change was made on the second reading. The ARSIWA state that
restitution is only required to the extent that it ‘does not involve a
burden out of all proportion to the benefit deriving from restitution
instead of compensation’,16 and that satisfaction ‘shall not be out of
proportion to the injury’.17 The main concern was the potentially crip-
pling effect of compensation payments.18 In the ARSIWA, the quantum
of compensation payable is limited by the requirement of causation
(discussed in further detail below).19 However, situations could arise in
which crippling compensation payments would not be excluded by this
requirement.20 Article 50, dealing with countermeasures, to some extent
addresses this concern, stating that ‘[c]ountermeasures shall not
affect . . . obligations for the protection of fundamental human rights’.21
The commentary refers to the ICCPR and ICESCR and the fact that under
these instruments ‘[i]n no case may a people be deprived of its own

12
ILC Ybk 2000/II(2), 29; Factory at Chorzów, (1928) PCIJ Ser. A No. 17, 47. See also ARSIWA
Commentary, Art. 31, §2.
13 14
ILC Ybk 2000/II(2), 27. Crawford, Third Report, 21; ILC Ybk 2000/II(2), 28.
15
ILC Ybk 2000/II(2), 25; ILC Ybk 2000/I, 13 (Simma). The Special Rapporteur also stated
that ‘[e]specially given concerns about limiting to a reasonable extent the burden of
reparation, [a principle of mitigation of damage] should also be included in the proposed
article’: Crawford, Third Report, ILC Ybk 2000/II(1), 62.
16 17
ARSIWA, Art. 35(b). ARSIWA, Art. 37(3).
18
Crawford, Third Report, 20–1; ILC Ybk 2000/II(2), 39.
19 20
ARSIWA Commentary, Art. 34, §5. ILC Ybk 2000/I, 24 (Crawford).
21
ARSIWA, Art. 50(1)(b).
 reparation 483

means of subsistence’.22 While this provision could protect a state from

countermeasures were it unable to make a compensation payment, and
the defences of necessity and duress could entitle a state to delay pay-
ment of compensation, neither of these considerations can affect the
quantum of compensation due, consistent with previous state practice.

15.2.2 Subsequent case law

The Eritrea–Ethiopia Claims Commission appeared to take the view that
the potentially crippling effect of a compensation payment could be
considered in determining its quantum. The Claims Commission ultim-
ately held that it did not need to decide the issue,23 presumably because
it awarded a net payment of only US$11 million to Ethiopia.24 Nonethe-
less, it addressed the issue at some length. It referred to the ILC’s deletion
of Draft Article 42(3) but stated:
Awards of compensation of the magnitude sought by each Party would impose
crippling burdens upon the economies and populations of the other, notwith-
standing the obligations both have accepted under the Covenants. Ethiopia urged
the Commission not to be concerned with the impact of very large adverse
awards on the affected country’s population, because the obligation to pay would
fall on the government, not the people. The Commission does not agree. Huge
awards of compensation by their nature would require large diversions of
national resources from the paying country – and its citizens needing health
care, education and other public services – to the recipient country. In this
regard, the prevailing practice of States in the years since the Treaty of Versailles
has been to give very significant weight to the needs of the affected population in
determining amounts sought as post-war reparations.
Article 5(13) of the December 2000 Agreement directs that, ‘[i]n considering
claims, the Commission shall apply relevant rules of international law,’ which
include rules of human rights law applicable as between the Parties. Accordingly,
the Commission could not disregard the possibility that large damages awards
might exceed the capacity of the responsible State to pay or result in serious

22
ARSIWA Commentary, Art. 50, §7; International Covenant on Civil and Political Rights,
19 December 1966, 999 UNTS 171, Art. 1(2); International Covenant on Economic, Social
and Cultural Rights, 16 December 1966, 993 UNTS 3, Art. 1(2).
23
Final Award: Eritrea’s Damages Claims, (2009) 26 RIAA 505, 524; Final Award: Ethiopia’s
Damages Claims, (2009) 26 RIAA 631, 651.
24
Final Award: Eritrea’s Damages Claims, (2009) 26 RIAA 505, 630; Final Award: Ethiopia’s
Damages Claims, (2009) 26 RIAA 631, 770. Ethiopia’s Group Number One damages claims
amounted to approximately US$7.4 billion and its Group Number Two damages claims
amounted to approximately US$6.9 billion, which the Claims Commission determined
was more than three times Eritrea’s estimated total national product in 2005. Eritrea’s
claims against Ethiopia amounted to approximately US$6 billion: Final Award: Eritrea’s
Damages Claims, (2009) 26 RIAA 505, 522.
484 cessation and reparation

injury to its population if such damages were paid. It thus considered whether it
was necessary to limit its compensation awards in some manner to ensure that
the ultimate financial burden imposed on a Party would not be so excessive,
given its economic condition and its capacity to pay, as to compromise its ability
to meet its people’s basic needs.25

The Claims Commission relied on limited practice to support the

proposition that ‘the prevailing practice of States in the years since the
Treaty of Versailles has been to give very significant weight to the needs
of the affected population in determining amounts sought as post-war
reparations’.26 It relied, for example, on the Treaty of Peace with Japan27
which, as explained in the ILC debates, was a situation in which full
reparation was waived and which does not provide guidance regarding
the general principles to be used in determining the quantum of com-
pensation owed.28
The UN Compensation Commission provides an example of a situation
in which the principle of full reparation has been given effect despite
financial hurdles. In Resolution 687, the Security Council decided to
create a commission to deal with claims resulting from Iraq’s invasion
and occupation of Kuwait, as well as a fund to pay compensation pay-
ments held to be due by the commission.29 The resolution stated that the
Secretary-General was to recommend
mechanisms for determining the appropriate level of Iraq’s contribution to the
Fund, based on a percentage of the value of its exports of petroleum and petrol-
eum products, not to exceed a figure to be suggested to the Council by the
Secretary-General, taking into account the requirements of the people of Iraq,
Iraq’s payment capacity as assessed in conjunction with the international finan-
cial institutions taking into consideration external debt service, and the needs of
the Iraqi economy . . .30

While Iraq’s ability to pay was considered in establishing the Compen-

sation Commission, it only affected the method by which compensation

25
Final Award: Eritrea’s Damages Claims, (2009) 26 RIAA 505, 523–4; Final Award: Ethiopia’s
Damages Claims, (2009) 26 RIAA 631, 650–1.
26
Final Award: Eritrea’s Damages Claims, (2009) 26 RIAA 505, 523 n. 11, and Final Award:
Ethiopia’s Damages Claims, (2009) 26 RIAA 631, 651 n. 11, both citing Decision Number 7:
Guidance Regarding Jus ad Bellum Liability, (2007) 26 RIAA 10, 17–19.
27
Treaty of Peace with Japan, 8 September 1951, 136 UNTS 45.
28
ILC Ybk 2000/II(2), 28. See also Treaty of Peace with Japan, 8 September 1951, 136 UNTS
45, Art. 14(b).
29
SC Res. 687 (1991), §18. See also SC Res. 692 (1991), §3.
30
SC Res. 687 (1991), §19. For the Secretary-General’s recommendations, see UN Doc.
S/22559 (1991), UN Doc. S/22661 (1991).
 reparation 485

payments were to be met; it did not affect Iraq’s obligation to provide full
reparation.31 Since 2003, the percentage that Iraq contributes to the UN
Compensation Commission Compensation Fund has been set at 5 per
cent, though it has been as high as 30 per cent in the past.32 As at July
2012, the Compensation Commission had made US$37.7 billion available
for distribution to successful claimants.33

15.3 The notion of injury

15.3.1 Injury defined
Although the term ‘damage’ appeared in the Draft Articles of 1996 under
the rubrics of ‘compensation’ and ‘satisfaction’, they contained no com-
prehensive definition of the term.34 In 2000, the Drafting Committee
proposed such a definition in a provision which read:
(1) The responsible State is under an obligation to make full reparation for the
injury caused by the internationally wrongful act.
(2) Injury consists of any damage, whether material or moral, arising in conse-
quence of the internationally wrongful act of a State.35

It is not correct to say that injury ‘consists’ of damage. While damage

may sometimes be the gist of injury, that is, the legal wrong done to
another arising from a breach of an obligation, in other cases it may not
be, and it is also possible for there to be damage without any legal wrong
(damnum sine iniuria).36 This is reflected in the final wording of Article 31,
which states that ‘[i]njury includes any damage, whether material or
moral, caused by the internationally wrongful act of a State’.37 The
formulation is perhaps inelegant, but criticisms that no difference is
made between the concepts of injury and damage are misplaced.38
The commentary to Article 31 reaffirms that there is no general
requirement of damage as a necessary element of an internationally

31
On the challenges of mass claims procedures generally, see Chapter 20.
32
SC Res. 986 (1995), §8(c); SC Res. 1483 (2003), §21. See also Holtzmann and
Kristjánsdóttir (eds.), International Mass Claims Processes: Legal and Practical Perspectives
(2007), 358–9; SC Res. 705 (1991), §2; SC Res. 1330 (2000), §12. This method of funding
the compensation payments has been a source of tension and problems in the early life
of the Claims Commission and ultimately led to the establishment of the ‘oil-for-food’
programme: Holtzmann and Kristjánsdóttir (2007), 358–9.
33
UNCC, Press Release, 26 July 2012, available at www.uncc.ch/pressrel.htm.
34 35
Draft Articles, Arts. 44(2), 45(1). ILC Ybk 2000/II(2), 68.
36 37
Crawford, Fourth Report, 9. ARSIWA, Art. 31(2) (emphasis added).
38
See e.g. Stern (2010) 563, 569.
486 cessation and reparation

wrongful act.39 Rather, the precise character of damage, if any, required

for responsibility to arise depends on the primary obligation in question.
For example, some environmental conventions require ‘significant’
damage.40 In the WTO system, when an obligation under one of the
covered agreements is infringed, there is presumed to be damage (a
‘nullification or impairment’ of benefits).41 In the light of the wide range
of primary obligations, it was not possible for the ILC to formulate a
more specific provision defining injury. In the present state of inter-
national law, it would be wrong to presume any specific definition of
‘injury’ or ‘damage’ which is applicable across the board. The various
primary obligations of states do not derogate as a lex specialis from a
general rule about injury or damage. Rather, each obligation is tailored
to meet the particular requirements of the context.
Beyond meeting any requirement of damage contained in a primary
obligation, whether a wrongful act causes damage, along with its char-
acter, is highly material in determining the quantum and form of repar-
ation due. For example, were state A to take wrongful possession of state
B’s ship, restitution would be the appropriate remedy. If the ship were
damaged in the process, compensation would also be appropriate, and
the quantum of compensation due would depend on the extent of the
damage. If the ship were seriously damaged, state B might elect compen-
sation equal to the value of the ship and forgo restitution.

15.3.2 Material and moral injury

Article 31 defines injury to include ‘damage, whether material or moral’.
The commentary explains that the ‘formulation is intended both as
inclusive, covering both material and moral damage broadly understood,
and as limitative, excluding merely abstract concerns or general inter-
ests of a State which is individually unaffected by the breach’.42
Material damage refers to damage to property or other substantive
interests of a state and its nationals which is assessable in financial
terms. Moral damage encompasses two distinct concepts: moral damage
to a state and moral damage to a state’s nationals. Moral damage to

39
ARSIWA Commentary, Art. 31, §6. See further Chapter 2.
40
For example, the Convention on the Law of the Non-Navigational Uses of International
Watercourses, 21 May 1997, GA Res. 51/229 (1997) (not yet in force), Art. 7.
41
Marrakesh Agreement establishing the World Trade Organization, 15 April 1994, 1867
UNTS 3, Annex 2: Understanding on Rules and Procedures Governing the Settlement of
Disputes, Art. 3(8).
42
ARSIWA Commentary, Art. 31, §5.
 reparation 487

individuals includes such things as individual pain and suffering, loss of

loved ones or the personal affront associated with an intrusion into one’s
home or private life. Moral damage to a state refers to injury which is not
financially assessable but amounts to an affront to the state, for example
a violation of its sovereignty or territorial integrity.43
There was concern among members of the ILC regarding the use of the
expression ‘moral damage’, given the differing conceptions of ‘moral
damage’ in various national legal systems. There are obvious difficulties
in using terms drawn from national law which have not developed
autonomously in international law. This is true not only due to the
differing conceptions of ‘moral damage’ but also because ‘moral damage’
in domestic law is concerned solely with moral damage to individuals.44
Despite these concerns, use of the term was considered necessary to
convey the broad meaning of ‘injury’.45 So long as the kinds of non-
material loss which may be compensable are not forced into any single
theory of moral damage, it is appropriate to use the term.46

15.3.3 ‘Legal injury’?

An issue not addressed in the ARSIWA or the Commentary is whether
‘injury’ includes a notion of ‘legal injury’, meaning injury arising from
the mere fact of the breach of an international obligation. When the
issue was raised during the final adoption of the commentary, Simma
stated that ‘a lack of consensus on th[e] issue seemed to have been
“papered over” at some stage’.47 The issue was not able to be resolved
and so the mention of legal injury was deleted from the commentary.48
In the event, Simma was correct: Article 31 arguably does little more
than paper over some difficult issues.
But the better view is that no notion of ‘legal injury’ is included within
the Article 31 concept of injury, for two reasons. First, the forms of
reparation available in the ARSIWA (restitution, compensation and sat-
isfaction) address material and moral damage only.49 At times, satisfac-
tion has been described as being available for ‘non-material’ injury,
which could be considered broad enough to include ‘legal injury’.50
However, the position taken in the ARSIWA is clearly that satisfaction
43 44
ARSIWA Commentary, Art. 37, §§3–4. Crawford, Fourth Report, 9.
45
ILC Ybk 2000/I, 388 (Chairman of the Drafting Committee).
46 47 48
Crawford, Fourth Report, 9. ILC Ybk 2001/I, 264 (Simma). Ibid., 264–5.
49
ARSIWA Commentary, Art. 31, §5; ibid., Art. 36, §1.
50
E.g., Crawford, Third Report, 52. See also Rainbow Warrior (New Zealand/France), (1990) 20
RIAA 215, 272–3.
488 cessation and reparation

is available to make good moral damage and not to remedy the mere
breach of an international obligation. As is stated in the commentary,
satisfaction is ‘rather exceptional’ and ‘the remedy for those injuries, not
financially assessable, which amount to an affront to the State’.51 It
would not be logical to require ‘full reparation for . . . injury’ including
‘legal injury’ where none of the available forms of reparation can address
that type of damage.52 Second, if injury did include ‘legal injury’ due to
the mere fact of breach, then what the ARSIWA defines as a ‘State other
than an injured State’ would suffer ‘injury’, a terminological inconsist-
ency. This point was made by the United Kingdom, which stated:
The Chairman of the Drafting Committee has stated that ‘“[m]oral” damage
could be taken to include not only pain and suffering, but also the broader notion
of injury, which some might call “legal injury” . . . to States’. It is not clear what is
meant by ‘legal injury’, but it is possible that the term may be understood to
include that type of legal injury which is suffered by each party to a treaty by
virtue only of the fact that the treaty is violated by another party. Such an
interpretation would entail a conflation of the categories of ‘injured State’ (draft
art. 43) and ‘interested State’ (draft art. 49) . . . [I]f the distinction between injured
and interested States is to be retained, draft article 31 will need to be re-examined
in the light of the definition of the ‘injured State’ in draft article 43, and in the
light of the definition of damage implicit in draft article 37.53

The failure of the ILC to recognize ‘legal injury’ within the Article 31
concept of injury has been criticized by some. For example, it has been
said:
No remedy is, then, provided for breaches of international obligations where no
material or moral damage has occurred, so the somewhat paradoxical conclusion
would be that, after directly announcing in Article 1 that injury is not a necessary
condition to generate responsibility, the subsequent articles inexorably require
injury (material or moral) in order for responsibility to arise. That is equivalent to
saying that there is no responsibility without injury (material or moral), which
flies in the face of Article 1 . . .54

51
ARSIWA Commentary, Art. 37, §§1, 3. See also ibid., Art. 31, §5.
52
See also Barboza, in Ragazzi (2005) 7, 9.
53
ILC Ybk 2001/II(1), 58–9. See also ILC Ybk 2000/II(2), 32: ‘The concept of damage was also
considered indispensable by some members if the essential distinction was to be drawn
between a State suffering direct injury on the basis of which it could invoke article [31],
and one that, in the framework of erga omnes obligations or as a member of the
international community, merely had a legal interest in cessation of the internationally
wrongful act.’
54
Barboza (2005), 9.
 reparation 489

This is not correct. The absence of material or moral damage does not
mean that no responsibility arises. It merely means that there is no
damage for which reparation is due. Responsibility still arises where
there is only ‘legal injury’, but the consequences of such responsibility
are limited to the obligation of cessation and the provision of assurances
and guarantees of non-repetition, if appropriate.55
Under Article 48, a ‘State other than an injured State’ is entitled to
invoke the responsibility of a responsible state if: (i) ‘the obligation
breached is owed to a group of States including that State, and is estab-
lished for the protection of a collective interest of the group’56 (an
obligation erga omnes partes), or (ii) ‘the obligation breached is owed to
the international community as a whole’57 (an obligation erga omnes).
Several commentators have suggested that ‘State[s] other than an injured
State’ suffer ‘legal injury’ where an obligation erga omnes or erga omnes
partes is breached. Thus Wyler and Papaux state:
From the point of view of responsibility, any breach of an ‘integral’ obligation
creates a legal injury to every State in the international community . . . The fact
that [Article 48] 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’ . . . – does not affect, so it seems, the reality of the legal
injury suffered by all States.58

Stern states 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)’.59 Even though one might take issue with describing the effect
on ‘State[s] other than an injured State’ as ‘injury’, such states clearly are
legally affected by and interested in breaches of obligations erga omnes
and erga omnes partes.60 Pursuant to Article 48(2)(a), such states may seek
cessation and assurances and guarantees of non-repetition in their own
interest (or rather in the interest of the group or the international
community).
Such breaches should not be referred to as causing ‘legal injury’.
Although a convenient shorthand, it is accurate to say in full that what
is at issue is the breach of an obligation which has not caused material or

55 56 57
ARSIWA, Art. 30. ARSIWA, Art. 48(1)(a). ARSIWA, Art. 48(1)(b).
58
Wyler and Papaux, in Crawford, Pellet and Olleson (2010) 623, 627 (emphasis in
original).
59
Stern, in Crawford, Pellet and Olleson (2010) 193, 198.
60
See Chapter 11, and especially the discussion of Belgium v. Senegal, ICJ, 20 July 2012.
490 cessation and reparation

moral damage. Stern, for one, argues that the terminology ‘legal injury’
is appropriate and that ‘State[s] other than an injured State’ should in
fact also be considered ‘injured States’. She argues:
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 . . . [I]t seems that all States able to invoke international responsi-
bility should be considered to be injured States; if that is not the case, what is the
justification for the fact that they may have a cause of action against the author
of the internationally wrongful act?61

This use of the word ‘injury’ conflicts with its natural meaning: harm,
material or moral, suffered by the victim as obligee or beneficiary of the
obligation breached.62 More importantly, it is not correct to say that only
a state which is injured may invoke the responsibility of a responsible
state. That view is redolent of the outdated bilateral conception of rela-
tions between states. Such an understanding of interstate relations is
captured in Special Rapporteur Ago’s statements, rooted in earlier theor-
ies of responsibility, especially that of Anzilotti, that there is always a
‘correlation between a legal obligation on the one hand and a subjective
right on the other’ and that it is ‘perfectly legitimate, in international
law, to regard the idea of the breach of an obligation as the exact equiva-
lent of the idea of the impairment of the subjective rights of others’.63
International law was slow to develop a notion of ‘public interest
standing’ in areas where the law does not have as its purpose the
creation of synallagmatic rights and obligations.64 This can be seen from
the International Court’s decision in the second phase of the South West
Africa cases. The Court there held, on the casting vote of the president,
that Ethiopia and Liberia’s claim regarding South Africa’s administra-
tion of South West Africa (now Namibia) was inadmissible. The osten-
sible reason for this decision was that the claim did not involve
subjective rights of the claimant states.65 In the Court’s subsequent

61
Stern (2010) 193, 196–7. Stern still suggests that as ‘injured States’, what are now
described as ‘State[s] other than an injured State’ would still only be entitled to invoke
the obligation of cessation and the obligation to provide assurances and guarantees of
non-repetition: ibid., 198–200.
62 63
Crawford, (2002) 96 AJIL 874, 881. Ago, Second Report, ILC Ybk 1970/II, 192.
64
See further Crawford, in Andenas (ed.), 2 Judicial Review in International Perspective: Liber
Amicorum in Honour of Lord Slynn of Hadley (2000) 23, 24.
65
South West Africa, Second Phase, ICJ Rep. 1966 p. 6, 28, 51. See further Crawford (2000),
24–5.
 reparation 491

‘apology’ in the Barcelona Traction case,66 it recognized the existence of

legal relationships beyond traditional bilateral relations. In an often
cited paragraph, the Court drew a clear distinction between the
individual rights of states and the legal interests of other states. It
stated 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

While the interpretation of the Court’s judgment raises certain

questions,68 it is inappropriate to identify for all purposes responsi-
bility with the subjective right of an injured state.69 In the South West
Africa cases, Ethiopia and Liberia were not themselves the beneficiaries
of the right they sought to invoke. It was the subjective right of the
people of South West Africa to have the territory administered on
their behalf and in their interest which was at stake.70 But this does
not mean that Ethiopia and Liberia did not have what common
lawyers call ‘standing’.71 What it does mean is that the legal relations
between South Africa, the people of South West Africa and the claim-
ant states (and generally the relations between states in the context of
obligations of a collective or communitarian character) cannot be
reduced to a bilateral form. It is necessary to distinguish between
the primary beneficiary of an obligation (the right-holder directly
affected by a breach of an international obligation) and those states
with a legal interest in compliance with the obligation, irrespective
of how or whether the breach has affected them, and which act in
the broader public interest. According to the ARSIWA, it is only
the former which are injured.72 The distinction is both comprehen-
sible and useful, whereas the portmanteau use of the term ‘injury’
confuses and obscures.

66
Tams (2005), xiii.
67
Barcelona Traction, Light and Power Company, Limited, ICJ Rep. 1970 p. 3, 32.
68 69
See further Crawford (2000), 26–7. See Crawford, (2001) 8 IJGLS 303, 319–21.
70 71
Crawford, Third Report, 29–30. See also Tams (2005), 196–7.
72
See Chapter 11 for a discussion of how this is reflected in the ILC’s rejection of Draft
Articles, Art. 40 in favour of ARSIWA, Art. 42.
492 cessation and reparation

15.4 Questions of causation

15.4.1 An expanded rubric
Article 31(1) provides that a state is only under an obligation to make full
reparation for injury ‘caused’ by its internationally wrongful act. The
commentary explains that the character of the causal connection
required is expressed at this general level on the ground that ‘[v]arious
terms are used to describe the link which must exist between the wrong-
ful act and the injury in order for the obligation of reparation to arise . . .
[T]he requirement of a causal link is not necessarily the same in relation
to every breach of an international obligation.’73 The inquiry into
whether injury is ‘caused’ by a wrongful act is not limited to an inquiry
into factual causality, which is a necessary but not sufficient condition
for reparation. The allocation of injury to a wrongful act is in principle
a legal process. The inquiry therefore also includes consideration
of whether injury is too ‘remote’ (or excluded based on criteria variously
expressed in terms of lack of ‘directness’, ‘foreseeability’ or
‘proximity’).74
The ARSIWA have been criticized for not addressing the requirement
of causation in more detail. For example, Stern states:
[T]he 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’. Nothing more. It is therefore left to States and
judges to give some content to the causal link which is necessary for inter-
national responsibility to arise.75
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’. 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

73
ARSIWA Commentary, Art. 31, §10.
74
Ibid. For example, the UNCC held Iraq responsible for ‘direct’ loss: SC Res. 687 (1991),
§16; the tribunal in the Trail Smelter Case held certain damage to be ‘too indirect, remote,
and uncertain’: Trail Smelter Case (United States/Canada), (1938 and 1941) 3 RIAA 1905,
1931; the US–Germany Mixed Claims Commission considered whether damage was a
‘loss attributable to Germany’s act as a proximate cause’: Administrative Decision No. 2
(1923) 7 RIAA 23, 30. See further the cases cited in the footnotes to ARSIWA
Commentary, Art. 31, §10. For a comparative account see Hart and Honoré, Causation in
the Law (2nd edn, 1985).
75
Despite the reference ‘to the causal link which is necessary for international
responsibility to arise’, Stern is discussing the causal link which is necessary between an
internationally wrongful act and harm or damage.
 reparation 493

rule is breached. It is regrettable that the ILC did not clarify the difficult
issues relating to the causal link.76

Although the Drafting Committee did state that ‘[t]he need for a causal
link was usually stated in primary rules’, the reason the requirement of
causation was not elaborated in more detail was because it is not possible
to devise more specific criteria that are applicable across the wide range
of primary obligations. As the Drafting Committee stated in the sentence
immediately before the one quoted by Stern,
The Drafting Committee had considered a number of suggestions for qualifying
that causal link, but, in the end, it had taken the view that, since the require-
ments of a causal link were not necessarily the same in relation to every breach of
an international obligation, it would not be prudent or even accurate to use a
qualifier.77

This is undeniably correct. Shelton recognizes that ‘[c]ausation is a

complex issue in every legal system, where the extent of liability for
remote events and the consequences of intervening causes may vary
considerably from one area of the law to another’.78 She adds that:
A general statement of obligation to make reparation for harm caused masks
many difficult legal issues that probably could not be adequately answered by a
single set of articles, because the principles are intended to apply to every breach
of an international obligation regardless of the source of the obligation or nature
of the breach.79

The Eritrea–Ethiopia Claims Commission sought to articulate a more

specific causation requirement. It concluded:
[T]he Commission concludes that the necessary connection is best characterized
through the commonly used nomenclature of ‘proximate cause.’ In assessing
whether this test is met, and whether the chain of causation is sufficiently close
in a particular situation, the Commission will give weight to whether particular
damage reasonably should have been foreseeable to an actor committing the
international delict in question. The element of foreseeability, although not
without its own difficulties, provides some discipline and predictability in assess-
ing proximity. Accordingly, it will be given considerable weight in assessing
whether particular damages are compensable.80

76
Stern (2010) 563, 569–70.
77
ILC Ybk 2000(1), 388. See also Crawford, Third Report, 19; ARSIWA Commentary, Art.
31, §10.
78 79
Shelton, (2002) 96 AJIL 833, 846. Ibid., 833 n. 2.
80
Decision Number 7: Guidance Regarding Jus ad Bellum Liability, (2007) 26 RIAA 10, 15.
494 cessation and reparation

Although containing an additional adjective, the Claims Commission’s

formulation of the causation requirement does not add anything beyond
the meaning of ‘caused’ elaborated by the ILC in the commentary. The
generic character of the Claims Commission’s chosen formulation is
indicated by the fact that it was able to apply it in relation to all the
various violations of international law it had to consider. It seems that
the Claims Commission itself attached relatively little importance to its
chosen formulation. It acknowledged that ‘in many situations, the
choice of verbal formula to describe the necessary degree of connection
will result in no difference in outcomes’,81 and this is as true of ‘proxim-
ate cause’ as it is of other phrases.

15.4.2 Mitigation of damage and reparation

An integral aspect of causality is the question of mitigation of damage.82
The commentary explains that ‘[a]lthough often expressed in terms of a
“duty to mitigate”, this is not a legal obligation which itself gives rise to
responsibility’.83 It was for this reason that a provision on the issue of
mitigation of damage was not included in the ARSIWA, although the
issue is addressed in the commentary.84 The commentary states that ‘a
failure to mitigate by the injured party may preclude recovery to that
extent’.85 In other words, damage which occurs due to an injured state’s
failure to act reasonably to mitigate its loss is not ‘caused’ by the respon-
sible state’s wrongful conduct. This is true even for a wholly innocent
victim of wrongful conduct.86 As is stated by the International Court in
the Gabčı́kovo-Nagymaros case,
Slovakia . . . stated that ‘It is a general principle of international law that a party
injured by the non-performance of another contract party must seek to mitigate
the damage he has sustained.’
It would follow from such a principle that an injured State which has failed to
take the necessary measures to limit the damage sustained would not be entitled
to claim compensation for that damage which could have been avoided. While
this principle might thus provide a basis for the calculation of damages, it could
not, on the other hand, justify an otherwise wrongful act.87

81 82
Ibid., 15 (para. 14). Wittich, ‘Compensation’, (2008) MPEPIL, §20.
83
ARSIWA Commentary, Art. 31, §11.
84
ILC Ybk 2000/I, 392 (Chairman of the Drafting Committee).
85 86
ARSIWA Commentary, Art. 31, §11. Ibid.
87
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7, 55. See also the Naulilaa
case, in which Portugal’s failure to quell an uprising caused by Germany was taken
into consideration in determining the extent of the damage in respect of which
compensation was due: Responsabilité de l’Allemagne en raison des actes commis
 reparation 495

The point is that the wrongfulness of conduct is not precluded merely

because it is taken for the purpose of mitigating damage. But the Court
can be seen to have accepted that the failure of an injured party to
mitigate damage may preclude recovery to that extent.88
The principle has since been recognized by the Eritrea–Ethiopia
Claims Commission. Ethiopia alleged that Eritrea failed to mitigate the
damage it suffered as it expended money on a temporary hospital, rather
than building a new one from the outset.89 The Claims Commission
rejected this argument on the facts, stating that ‘the Commission cannot
fault Eritrea for spending ERN 2 million to provide health services
urgently needed by a large community’.90

15.4.3 Concurrent causes

15.4.3.1 The applicable principles
The issue of concurrent causes was raised by Special Rapporteur Arangio-
Ruiz. He proposed a provision which read: ‘Whenever the damage in
question is partly due to causes other than the internationally wrongful
act . . . the compensation shall be reduced accordingly.’91 This position
was rejected by the Drafting Committee, which stated that ‘the wrong-
doing State should be liable for all the harm caused, irrespective of the
role which external causes might have played in aggravating the harm.
In its opinion, that type of situation did not call for a specific provision
. . . and should simply be covered in the commentary’.92 Despite this, the
Draft Articles Commentary later adopted stated:
Innumerable elements, of which actions of third parties and economic, political
and natural factors are just a few, may contribute to a damage as concomitant
causes. In such cases . . . to hold the author State liable for full compensation
would be neither equitable nor in conformity with a proper application of the
causal link criterion. The solution should be the payment of damages in propor-
tion to the amount of injury presumably to be attributed to the wrongful act and
its effects . . .93

postérieurement au 31 juillet 1914 et avant que le Portugal ne participât à la guerre (Portugal

contre Allemagne), (1930) 2 RIAA 1035, 1076.
88 89
Higgins (2010), 540. Final Award: Eritrea’s Damages Claims, (2009) 26 RIAA 505, 554.
90 91
Ibid., 555. Arangio-Ruiz, Second Report, ILC Ybk 1989/II(1), 56.
92
ILC Ybk 1992/I, 217 (Chairman of the Drafting Committee). As discussed below, the
Drafting Committee did not reject the relevance of the contributory negligence of the
injured state: ibid., 217 (Chairman of the Drafting Committee).
93
Draft Articles Commentary, Art. 44, §13.
496 cessation and reparation

The ARSIWA now clearly take the position advocated by the Drafting
Committee. The commentary states that ‘[a]lthough, in such cases, the
injury in question was effectively caused by a combination of factors,
only one of which is to be ascribed to the responsible State, international
practice and the decisions of international tribunals do not support the
reduction or attenuation of reparation for concurrent causes’.94
The position taken in the ARSIWA is borne out by the case law,95 for
example the Corfu Channel case. That case concerned Albania’s failure to
warn the United Kingdom of the presence of mines in Albania’s territor-
ial waters, which resulted in damage to the United Kingdom’s ships.
Notwithstanding the fact that the mines had been laid by a third state,
the United Kingdom was able to recover the full amount of its claim from
Albania.96 Similarly, when laying down the general principles to govern
the recovery of compensation before the UN Compensation Commission,
the Governing Council stated that ‘[w]here, for example, the full extent
of the loss, damage or injury arose as a direct result of Iraq’s unlawful
invasion and occupation of Kuwait, it should be compensated notwith-
standing the fact that it may also be attributable to the trade embargo
and related measures.’97 The position taken in the ARSIWA is consistent
with the way the issue of concurrent causes is addressed in national legal
systems.98
The commentary states that the same ‘result should follow a fortiori in
cases where the concurrent cause is not the act of another State (which
might be held separately responsible) but of private individuals, or some
natural event such as a flood’.99 The Tehran Hostages case provides an
example of the former situation. The International Court held that while
the continued occupation of the embassy was attributable to Iran,100 and
Iran was responsible for failing to protect the embassy and its person-
nel,101 the students’ initial seizure of the premises was not attributable
to Iran.102 But there was no reduction in the reparation due from Iran in
the light of the acts of the private individuals. The Court held that ‘Iran is
under an obligation to make reparation to the Government of the United
States of America for the injury caused to the latter by the events of 4
November 1979 and what followed from these events.’103

94 95
ARSIWA Commentary, Art. 31, §12. Crawford, Third Report, 19.
96
Corfu Channel, ICJ Rep. 1949 p. 4, 23.
97
UNCC Governing Council, Decision No. 9, 6 March 1992, UN Doc. S/AC.26/1992/9, §6.
98 99
Crawford, Third Report, 20. ARSIWA Commentary, Art. 31, §12.
100
United States Diplomatic and Consular Staff in Tehran, ICJ Rep. 1980, p. 3, 35.
101 102 103
Ibid., 32–3. Ibid., 30. Ibid., 45.
 reparation 497

Consideration of a concurrent cause in the form of a natural event can

be found in the jurisprudence of the Eritrea–Ethiopia Claims Commis-
sion. In relation to Ethiopia’s claims concerning internally displaced
persons, the Claims Commission held:
A further complication is that some areas in Tigray were plagued at relevant
times both by war and by drought, and both afflictions caused displacement. The
evidence did not distinguish between persons who left their homes on account of
the war, and those who left for other reasons. However, it was clear that the war
was by far the most significant cause of internal displacement, and the Commis-
sion has not taken drought into account in seeking to assess the numbers of
persons displaced on account of the jus ad bellum violation.104

This statement is narrower than the position taken by the Inter-

national Court in the Corfu Channel case in that the Claims Commission
relied on the fact that the war was not just a cause but the more
significant cause of displacement.
There is an exception to the general rule concerning concurrent
causes: where an ‘identifiable element of injury can properly be allocated
to one of several concurrently operating causes alone’.105 The inability to
allocate identifiable elements of injury to particular causes is evident in
the examples already mentioned: in the Corfu Channel case, the conduct
of both Albania and the third state contributed to the same damage, the
damage to the United Kingdom’s ships; in the Tehran Hostages case the
simultaneous seizure of the embassy by the private individuals and
Iran’s failure to protect the embassy contributed to the United States’
loss; in the situation considered by the Eritrea–Ethiopia Claims Commis-
sion, the individuals in question left their homes due to the effects of
both war and drought. But in relation to another claim, the Commission
stated:
Ethiopia occupied Tserona Town for nearly nine of the twelve months between
May 31, 2000 and June 2001 when the damage was assessed . . . Ethiopia is not
liable for damages to the town caused by combat or for looting and stripping of
buildings that occurred either before or after its occupation of the town . . .
Assessing relative responsibility for the looting and stripping of the town is
difficult, not least because some damage resulted from combat operations and its
population was absent during the relevant period, including two or three months
after Ethiopian forces withdrew. Given this, and considering the evidence as a

104
Final Award: Ethiopia’s Damages Claims, (2009) 26 RIAA 631, 733.
105
ARSIWA Commentary, Art. 31, §13. See also the Zafiro case: Earnshaw v. US, (1925) 6
RIAA 160, 164–5.
498 cessation and reparation

whole, the Commission finds that Ethiopia is liable for seventy-five percent of the
damage caused by looting and stripping in Tserona Town.106

Here, Ethiopia’s conduct and the conduct of private individuals were

temporally distinct and caused separate damage.
It is important to note that the issue of concurrent causes is distinct
from the issue of a plurality of responsible states (i.e. cases where more
than one state is responsible for the same internationally wrongful act),
an issue addressed in Article 47.107

15.4.3.2 Hard cases

The International Court was confronted with the problem of concurrent
causes in the Bosnian Genocide case. After finding that Serbia breached its
obligation to prevent genocide, the Court stated:
[The] question is whether there is a sufficiently direct and certain causal nexus
between the wrongful act, the Respondent’s breach of the obligation to prevent
genocide, and the injury suffered by the Applicant, consisting of all damage of
any type, material or moral, caused by the acts of genocide. Such a nexus could be
considered established only if the Court were able to conclude from the case as a
whole and with a sufficient degree of certainty that the genocide at Srebrenica
would in fact have been averted if the Respondent had acted in compliance with
its legal obligations. However, the Court clearly cannot do so. As noted above, the
Respondent did have significant means of influencing the Bosnian Serb military
and political authorities which it could, and therefore should, have employed in
an attempt to prevent the atrocities, but it has not been shown that, in the
specific context of these events, those means would have sufficed to achieve
the result which the Respondent should have sought.108

The decision highlights the distinction between causation in the con-

text of a primary obligation and in the context of damages. Before
making its finding on causation, the Court stated:
To make [the finding that Serbia failed to comply with its obligation to prevent
genocide], the Court did not have to decide whether the acts of genocide commit-
ted at Srebrenica would have occurred anyway even if the Respondent had done
as it should have and employed the means available to it. This is because . . . the
obligation to prevent genocide places a State under a duty to act which is not

106
Partial Award: Central Front: Eritrea’s Claims 2, 4, 6, 7, 8 & 22, (2004) 26 RIAA 115, 138–9,
139. Also referred to in Final Award: Eritrea’s Damages Claims, (2009) 26 RIAA 505, 544.
107
For a discussion of situations involving a plurality of responsible states as a matter of
substance, see Chapter 10. On issues of procedure, see Chapter 20.
108
Bosnian Genocide, ICJ Rep. 2007 p. 43, 234.
 reparation 499

dependent on the certainty that the action to be taken will succeed in preventing
the commission of acts of genocide, or even on the likelihood of that outcome . . .
The Court cannot however leave it at that. Since it now has to rule on the claim
for reparation . . . the question just mentioned, whether the genocide at Srebre-
nica would have taken place even if the Respondent had attempted to prevent it
by employing all means in its possession, becomes directly relevant, for the
definition of the extent of the obligation of reparation borne by the Respondent
as a result of its wrongful conduct.109

While it is correct that the tests of causation applicable to establish a

breach of a primary obligation and to establish the damage for which
reparation is due are distinct, the Court’s approach to the latter test has
been criticized. The test the Court adopted was a ‘but for’ test: it asked
would the genocide have occurred ‘but for’ Serbia’s failure to fulfil its
obligation, and answered in the negative. That a wrongful act must be a
conditio sine qua non for the occurrence of damage is said to be ‘undis-
puted’.110 However, in many situations, damage resulting from an inter-
nationally wrongful act will be caused by the combined action of several
actors or factors. In such circumstances, often no one contribution can
be said to be indispensible such that the international wrong would not
have occurred ‘but for’ it.111 As Gattini states, ‘To say that the genocide
would have been committed anyway is not equivalent to saying that the
genocide would have been committed with the same modalities . . . [T]he
fact that Serbia’s omission was not the only cause does not mean that it
was no cause at all.’112 Dissatisfaction with the ‘but for’ test in domestic
law is also well known.113
On the other hand, given the general principle that reparation is not to
be reduced in cases of concurrent causes, the Court might have found it
difficult to hold Serbia to have ‘caused’ the genocide, with the conse-
quence that it would have been under an obligation to provide repar-
ation in relation to the entirety of the damage. The Court took the
middle ground by making a declaration by way of satisfaction.
It has been suggested that the making of that declaration created an
inconsistency: while the Court held that no compensation was due as no
damage had been caused by Serbia’s wrongful omission, the conclusion
that satisfaction should be given is predicated on damage having been
caused.114 According to this view Serbia’s conduct cannot have been

109 110
Bosnian Genocide, ICJ Rep. 2007 p. 43, 233–4. Wittich (2008), §17.
111
See McCarthy, Reparations and Victim Support in the International Criminal Court (2012), 138.
112 113
Gattini, (2007) 18 EJIL 695, 710. See, e.g., Hart and Honoré (1985), 122–8.
114
Milanovic´, (2007) 18 EJIL 669, 690.
500 cessation and reparation

causally connected to the moral damage arising from the genocide but
not to the material damage arising from the very same event. But
Serbian responsibility was for failure to prevent, and this failure could
be connected to the genocide without having been directly or sufficiently
causative of it.

15.4.4 Contribution to the injury

The issue of contribution concerns situations dealt with in national
systems under such rubrics as ‘contributory negligence’, ‘comparative
fault’ and ‘faute de la victime’.115 Throughout the twentieth century,
different views were expressed as to the consequences that flowed where
an injured state contributed to its injury: some considered that it consti-
tuted a circumstance precluding wrongfulness, others that it merely
affected the assessment of damage for which reparation was due.116
The latter view is taken in the ARSIWA,117 with Article 39 providing
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.’
The ARSIWA have been criticized for recognizing that there is a
reduction of reparation in cases of contribution, but not in cases of
concurrent causes. It has been said:
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 . . . such as . . . the
action of a third party State which contributes to the final injury.118

But the reason why reparation is reduced in cases of contribution has

nothing to do with concurrent causation: it has to do with equity and
fairness as between the responsible state and the injured state.119

115
ARSIWA Commentary, Art. 39, §1.
116
See Moutier-Lopet (2010), 639–40. Special Rapporteur García Amador had suggested
that an ‘act or omission shall not be imputable to the State if it was provoked by some
fault on the part of the injured alien himself’: García Amador, Sixth Report, ILC Ybk
1961/II, 48.
117
See also ILC Ybk 2000/I, 392 (Chairman of the Drafting Committee); ILC Ybk 2000/II(2),
42–3.
118
Stern (2010) 563, 570.
119
ILC Ybk 2000/I, 183 (Crawford); ARSIWA Commentary, Art. 39, §2.
 reparation 501

The Article represents progressive development of the law, at least to

the extent that it deals with contribution by states (as opposed to indi-
viduals on whose behalf a state might make a claim).120 Nonetheless, it
can be justified.
The principle of contribution to injury and that of mitigation of
damages are closely related and a clear distinction between them is at
times hard to make.121 Both concern situations in which an injured state
suffers greater damage due to its own act or omission. The difference is
that mitigation of damage concerns conduct after damage has occurred,
whereas contribution concerns conduct which occurs at the time of the
breach or the original infliction of damage.122 For example, in LaGrand,
the International Court considered Germany’s delay in commencing
proceedings as having contributed to the injury it suffered due to the
United States’ breach of the provisional measures order. It did not
consider Germany’s delay in the context of the United States’ breaches
of Article 36 of the Vienna Convention on Consular Relations123 as
contributing to the damage flowing from those injuries (a failure to
mitigate damage).124
Article 39 states that a contribution to injury is only relevant if it is
‘wilful or negligent’. The expression ‘wilful or negligent action or omis-
sion’ was taken from the Convention on the International Liability for
Damage caused by Space Objects.125 Special Rapporteur Arangio-Ruiz
had originally used the phrase ‘contributory negligence’,126 but it was
necessary to move away from an expression borrowed from the common
law.127 While there is no requirement in Article 39 that negligence be
‘gross’ or ‘serious’, the effect that any negligence has on the determin-
ation of reparation will depend on the degree to which it contributed to
the injury and the circumstances of the case.128 Article 39 has been
criticized for being limited to ‘wilful or negligent’ conduct. It has been

120 121
Crawford, Third Report, ILC Ybk 2000/II(1), 61. Wittich (2008), §40.
122 123
Ibid. 24 April 1963, 596 UNTS 261.
124
LaGrand (Germany v. US), ICJ Rep. 2001 p. 466, 486–7, 508.
125
29 March 1972, 961 UNTS 187; ILC Ybk 1992/I, 217.
126
Arangio-Ruiz, Second Report, ILC Ybk 1989/II(1), 56.
127
ILC Ybk 1992/I, 217 (Chairman of the Drafting Committee). The common law expression
was considered inappropriate in that it ‘lent itself to a restrictive interpretation
excluding deliberate acts or omissions’: ibid., 217.
128
ARSIWA Commentary, Art. 39, §5. Where damage is entirely attributable to the
conduct of an injured state and not at all to the conduct of a responsible state, the better
interpretation is that the damage is not ‘caused’ by the conduct of the responsible state
as required by Art. 31: ibid., §5 n. 660.
502 cessation and reparation

said that 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’.129 Such comments misrepresent the ARSIWA’s approach to
fault. The position taken is that there is no requirement of fault beyond
that required by the relevant primary rule. It is not the case that fault
has no role in the theory of international responsibility. For example,
state ‘intention’ may be relevant to the justifications and excuses con-
tained within Articles 20 to 25.130
Although Special Rapporteur Arangio-Ruiz originally suggested that
the relevance of contribution be limited to the context of compensa-
tion,131 the Drafting Committee considered that the issue could arise
equally in relation to other forms of reparation, so Article 39 was made
of general application.132 It is true that the case law largely concerns
contribution in relation to compensation, but situations can easily be
envisaged in which contribution could arise in the context of restitution.
For example, if a state-owned ship were unlawfully detained by another
state and, while under detention, sustained damage due solely to the
negligence of the captain, the responsible state would be required merely
to return the ship in its damaged condition.133
As Article 39 states, it is not only contribution by an injured state that
is relevant, but also contribution by ‘any person or entity in relation to
whom reparation is sought’. This refers not only to situations in which a
diplomatic protection claim is brought but ‘also any other situation in
which one State invokes the responsibility of another State in relation to
conduct primarily affecting some third party’.134 In Diallo, the ICJ took
into account the possible role played by Diallo himself in the injury that
he suffered. Among other things, Guinea sought compensation for the
loss of the personal property located in Diallo’s apartment following his
expulsion from the Democratic Republic of the Congo. The Court stated:
There is, however, uncertainty about what happened to the property listed on the
inventory. Guinea does not point to any evidence that Mr. Diallo attempted to
transport or to dispose of the property in the apartment, and there is no evidence
before the Court that the DRC barred him from doing so. The DRC states that it
did not take possession of the apartment and that it did not evict Mr. Diallo from
the apartment. Mr. Diallo himself stated in 2008 that the company from which

129 130
Stern (2010) 563, 570. See further Chapters 2 and 9.
131
Arangio-Ruiz, Second Report, ILC Ybk 1989/II(1), 56.
132
ILC Ybk 1992/I, 217 (Chairman of the Drafting Committee); ARSIWA Commentary, Art.
39, §4.
133 134
ARSIWA Commentary, Art. 39, §4. ARSIWA Commentary, Art. 39, §6.
 reparation 503

the apartment was leased took possession of it soon after his expulsion and that,
as a result, he had lost all of his personal effects. Therefore, taken as a whole,
Guinea has failed to prove the extent of the loss of Mr. Diallo’s personal property
listed on the inventory and the extent to which any such loss was caused by the
DRC’s unlawful conduct.135

The Court here clearly recognized the relevance of Diallo’s own con-
duct in relation to the loss he allegedly suffered. But this is best seen as a
situation in which the loss in question was entirely due to the conduct of
the victim or a third party, a situation captured by the causation require-
ment in Article 31(1).136

15.5 Plurality of injured states

The Draft Articles did not address situations in which the breach of an
international obligation involves multiple responsible states or multiple
injured states.137 Clearly, more than one state may be injured by the
breach of an international obligation. This situation is now dealt with in
Article 46, which states, ‘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 internationally
wrongful act.’ An example of a case in which multiple states each
invoked the responsibility of a responsible state is the Nuclear Test cases.
In those cases, Australia and New Zealand alleged that France, inter alia,
had violated the right of all states to be free from atmospheric nuclear
weapons testing.138
Not only is it possible for responsibility to be invoked by multiple
injured states, responsibility could also be invoked by an injured state
and by one or more states ‘other than an injured State’.139 As a ‘State
other than an injured State’ can only seek reparation in the interest of
the injured state,140 issues concerning the apportionment of reparation
can only arise in situations in which responsibility is invoked by multiple
injured states.
135
Ahmadou Sadio Diallo (Guinea v. DRC), ICJ, Compensation, 19 June 2012, §31.
136
ARSIWA Commentary, Art. 39, §5 n. 660; Crawford, Third Report, 62.
137
Crawford, Third Report, 72.
138
Nuclear Tests (New Zealand v. France), ICJ Rep. 1974 p. 457; Nuclear Tests (Australia v. France),
ICJ Rep. 1974 p. 253. See also SS Wimbledon, (1923) PCIJ Ser. A No. 1; Aerial Incident of 27
July 1955 (Israel v. Bulgaria), Preliminary Objections, ICJ Rep. 1959 p. 127; Aerial Incident of
27 July 1955 (UK v. Bulgaria), ICJ Rep. 1959 p. 264; Aerial Incident of 27 July 1955 (US v.
Bulgaria), ICJ Rep. 1960, p. 146.
139 140
See Chapter 19. ARSIWA, Art. 48(2)(b).
504 cessation and reparation

While each injured state may invoke the responsibility of the respon-
sible state, each can only recover reparation for the damage that it itself
has suffered. In the Nuclear Test cases, for example, New Zealand ‘reserve[d]
the right to hold the French Government responsible for any damage or
losses incurred by New Zealand or the Pacific Islands for which New Zealand has
a responsibility’.141 The primary concern is situations in which there is
payment of compensation to multiple injured states. The commentary
specifically states that ‘[w]here there is more than one injured State
claiming compensation on its own account or on account of its nationals,
evidently each State will be limited to the damage actually suffered.’142
The flip side of the coin is that a responsible state cannot be required
to provide compensation to various injured states which in total exceeds
the damage caused. This follows from the basic principle of full repar-
ation: a responsible state is only required to provide reparation for injury
caused by its wrongful act. Although the Court in Aerial Incident of 27 July
1955 ultimately held that it did not have jurisdiction over Israel’s claim,
in oral argument the agent for Israel acknowledged that ‘the Bulgarian
Government is entitled to protection against having to pay double dam-
ages’, in the light of the claims also brought by the United Kingdom and
the United States.143 As this example indicates, where there are multiple
injured states issues can arise concerning the co-ordination of their
claims.144
Article 46 is concerned with situations in which multiple states are
injured by the ‘same internationally wrongful act’.145 As defined in
Article 2, an internationally wrongful act involves ‘a breach of an inter-
national obligation of the State’.146 That is, Article 46 is only concerned
with situations in which multiple states are injured by the breach of one
international obligation, necessarily an obligation owed to a group of
states collectively or to the international community as a whole
141
Nuclear Tests (New Zealand v. France), Memorial on Jurisdiction and Admissibility, Annex
XIII (emphasis added).
142
ARSIWA Commentary, Art. 46, §4.
143
Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Preliminary Objections, Oral Hearings, 26
March 1959, 534 (Rosenne). It also stated in its memorial that ‘[o]ne of the primary
reasons for establishing co-ordination [with the US and UK] from the earliest stages was
to prevent, so far as was possible, the Bulgarian Government being faced with double
claims leading to the possibility of double damages. It is a well-known rule of law that
the defendant State cannot be asked or compelled to pay reparation due in respect of
damage twice over’: Aerial Incident 27 July 1955 (Israel v. Bulgaria), Memorial of Israel,
§103. On the rule against double recovery, see further Chapter 20.
144
On the issue of election in the context of multiple injured states, see Chapter 17.
145 146
ARSIWA, Art. 46 (emphasis added). ARSIWA, Art. 2(b) (emphasis added).
 reparation 505

(obligations erga omnes and erga omnes partes).147 In situations in which

one act breaches multiple bilateral obligations, there is more than one
internationally wrongful act. The limited scope of Article 46 is explicable
on the basis that it is only in relation to the situations dealt with that it is
necessary to specify that each injured state has the right to invoke
responsibility. Nonetheless, the principles discussed in the commentary
concerning the division of reparation are equally applicable in situations
where responsibility is invoked by multiple states injured by conduct
breaching multiple bilateral obligations, being based as they are on the
principle of full reparation.

147
See also Huesa Vinaixa, in Crawford, Pellet and Olleson (2010) 949, 949–50. See
ARSIWA, Art. 48(1) regarding obligations erga omnes and erga omnes partes.
16 Remedies

16.1 The link between reparation and remedies

The provisions of Part II of the ARSIWA are formulated in terms of the
obligations of responsible states. In many national legal systems, equiva-
lent provisions would more naturally be expressed in terms of the
powers of the court with respect to remedies, and the International
Court uses the term ‘remedies’ (French: remèdes) without hesitation. This
approach is more difficult in general international law, a system in
which there is no a priori right to a court and where the particular
consequences of responsibility in a given situation will usually be
resolved outside any judicial context.1 Nonetheless, restitution, compen-
sation and satisfaction cover a field which might be described as ‘judicial
remedies’.2 The ARSIWA identify restitution, compensation and satisfac-
tion as the three ways in which the obligation to provide full reparation
may be fulfilled. The first section of this chapter discusses the relation-
ship between these forms of reparation. Each of them is then explored in
more detail; a final section deals with the issue of compensatory interest.

16.1.1 The available forms of reparation

After espousing the basic principle of full reparation,3 the Permanent
Court in the Chorzów Factory case went on to state:
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

1
Crawford, Third Report, 13.
2
For example, Gray (1987); Shelton, Remedies in International Human Rights Law (2nd edn,
2005).
3
See Chapter 15.

506
 remedies 507

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.4

In addition to the two forms of reparation recognized by the Perman-

ent Court – restitution and compensation – the availability of satisfac-
tion is well established in international law.5 As is stated by the tribunal
in the Rainbow Warrior case, ‘[t]here is a long established practice of
States and international Courts and Tribunals of using satisfaction as a
remedy or form of reparation (in the wide sense) for the breach of an
international obligation’.6 Article 34 of the ARSIWA introduces these
various forms of reparation. It states: ‘Full reparation for the injury
caused by the internationally wrongful act shall take the form of restitu-
tion, compensation and satisfaction, either singly or in combination, in
accordance with the provisions of this Chapter.’
In the Draft Articles, reparation was expressed to be a right of an
injured state. It was stated that the ‘injured State is entitled to obtain
from the State which has committed an internationally wrongful act full
reparation’.7 On second reading, the article was reformulated as an
obligation of the responsible state. One reason was to account for cases
in which there is a plurality of injured states.8 Second, and more funda-
mentally, the change was necessary to reflect the fact that the obligation
of reparation arises automatically on the commission of the internation-
ally wrongful act, rather than being contingent on a demand or protest
by any injured state.9 While the individual articles dealing with restitu-
tion, compensation and satisfaction are expressed as obligations (for
example, a responsible state is ‘under an obligation to make restitu-
tion’),10 the commentary explains that the ‘forms of reparation . . .
represent ways of giving effect to the underlying obligation of reparation
set out in article 31. There are not, as it were, separate secondary obliga-
tions of restitution, compensation and satisfaction.’11
It is clear from the wording of this article that full reparation may
require only one form of reparation or a combination of them. The
ARSIWA appear to establish a hierarchy between the different forms of

4 5
Factory at Chorzów, (1928) PCIJ Ser. A No. 17, 47. ARSIWA Commentary, Art. 37, §4.
6
Rainbow Warrior (New Zealand/France), (1990) 20 RIAA 215, 272–3.
7
Draft Articles, Art. 42(1).
8
Crawford, Third Report, 17; ARSIWA Commentary, Art. 31, §4. On the apportionment of
reparation in situations involving a plurality of injured states, see Chapter 15.
9 10
Crawford, Third Report, 18; ARSIWA Commentary, Art. 31, §4. ARSIWA, Art. 35.
11
ARSIWA Commentary, Art. 34, §6. See also Crawford, Third Report, 39.
508 cessation and reparation

reparation, with restitution at the pinnacle as the primary form of

reparation. A responsible state is under an obligation to compensate
for damage caused only ‘insofar as such damage is not made good by
restitution’ and to give satisfaction for injury caused only ‘insofar as it
cannot be made good by restitution or compensation’.12 However, this
apparent hierarchy is not unqualified.

16.1.2 The right of election

First, an injured state normally has the right to elect the form that
reparation will take. Article 43(2)(b) states that the ‘injured State
may specify in particular . . . what form reparation should take in
accordance with the provisions of Part Two’. Although the Draft
Articles did not contain an equivalent provision, a right of election
was implicit by virtue of the fact that the various forms of reparation
were treated as rights of the injured state, which it could choose to
invoke or not.13
The commentary gives two examples of situations in which states have
exercised their right of election.14 In Chorzów Factory, Germany sought
compensation rather than the return of the factory in question.15 In
Great Belt,16 Finland accepted compensation in settlement of its claim,
instead of the deconstruction of the bridge built by Denmark over the
Great Belt which it had sought in its Application.17 More recently, the
International Court in Diallo appeared to be influenced by Guinea’s
election of compensation in determining that it was the appropriate
form of reparation. The Court stated:
In the light of the circumstances of the case, in particular the fundamental
character of the human rights obligations breached and Guinea’s claim for
reparation in the form of compensation, the Court is of the opinion that, in
addition to a judicial finding of the violations, reparation due to Guinea for the
injury suffered by Mr. Diallo must take the form of compensation.18

12
ARSIWA, Arts. 36(1), 37(1).
13
Crawford, Third Report, 40. For example, the draft article dealing with restitution stated
that an ‘injured State is entitled to obtain from the State which has committed an
internationally wrongful act restitution in kind’: Draft Articles, Art. 43.
14
ARSIWA Commentary, Art. 43, §6.
15
The Permanent Court referred to Germany having ‘abandoned its original claim for the
restitution of the factory’: Factory at Chorzów, Jurisdiction, (1927) PCIJ Ser. A No. 9, 17.
16
Passage through the Great Belt (Finland v. Denmark), Order, ICJ Rep. 1992 p. 348.
17
Koskenniemi, (1996) 27 ODIL 255, 255.
18
Ahmadou Sadio Diallo (Guinea v. DRC), ICJ, 30 November 2010, §161.
 remedies 509

However, the effect of Guinea’s election should not be overstated. In

its later decision on compensation, the Court noted that it was uncertain
what had happened to Diallo’s personal property:19 the prospective
unavailability of restitution may have influenced the Court’s earlier
decision that compensation was appropriate. The right of election is
dealt with in more detail in Chapter 19.

16.1.3 A hierarchy of reparation?

Special Rapporteur Arangio-Ruiz forcefully defended the primacy of
restitution.20 On the second reading, the ILC debated whether the pri-
macy of restitution should be retained, particularly in the light of the
general predominance of compensation in the practice of states and
tribunals.21 As is evident from the discussion above, the ILC decided that
the primacy of restitution should be retained. One reason for this deci-
sion was the dictum of the Permanent Court in the Chorzów Factory case:
that the appropriate remedy will be ‘[r]estitution in kind, or, if this is not
possible, payment of a sum corresponding to the value which a restitu-
tion in kind would bear’.22 Restitution is also the form of reparation
which most closely conforms to the general principle that a responsible
state is obliged to wipe out the consequences of its wrongful act by re-
establishing the situation that would have existed had the act not been
committed.23 Although not reflected in the commentary, there was also
concern that states would otherwise be able to avoid their international
obligations by offering payment in lieu.24
While maintaining the notional primacy of restitution, the ARSIWA
do adopt a more flexible approach to the issue by including the right of
election and also by recognizing that there are circumstances in which
restitution will not be warranted. Article 35 provides that a state is only
19
Ahmadou Sadio Diallo (Guinea v. DRC), Compensation, ICJ, 19 June 2012, §31.
20
ILC Ybk 2000/I, 172 (Crawford). See also Arangio-Ruiz, Preliminary Report, ILC Ybk 1988/
II(1), 37–8.
21
Crawford, Third Report, 43, 45; ILC Ybk 2000/II(2), 37. The predominance of
compensation in the practice of states and tribunals is explicable on the basis of
the limitations on the primacy of restitution recognized in the ARSIWA: ILC
Ybk 2000/II(2), 37.
22
Factory at Chorzów, (1928) PCIJ Ser. A No. 17, 47. See also ibid., 48. See also ARSIWA
Commentary, Art. 35, §3.
23
ARSIWA Commentary, Art. 35, §3. As stated in the Factory at Chorzów, ‘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’: Factory at Chorzów, (1928) PCIJ Ser. A No. 17, 47.
24
Crawford, Third Report, 45; ILC Ybk 2000/II(2), 34.
510 cessation and reparation

under an obligation to provide restitution ‘to the extent that [it]: (a) is not
materially impossible; (b) does not involve a burden out of all proportion
to the benefit deriving from restitution instead of compensation’. As
Gray remarks,
[T]he 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 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.25

Despite this flexibility, the ARSIWA still provide clear guidance

regarding the principles to apply in determining what the appropriate
form of reparation will be in a given situation.

16.2 Restitution
16.2.1 The basic principle
Article 35 provides:
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.

As is clear from the wording of the article, restitution involves the re-
establishment of the status quo ante, that is, the situation that existed
‘before the wrongful act was committed’. It does not involve the estab-
lishment or re-establishment of the situation that would have existed had
the wrongful act not been committed. The understanding that restitu-
tion requires the establishment of the status quo ante was already present
in the Draft Articles.26 During the second reading, there was debate
regarding whether that understanding properly represented the object-
ive of restitution.27 Those who took the view that it did not relied on a
statement of the Permanent Court in the Chorzów Factory case: that
‘reparation must, as far as possible, wipe out all the consequences of
the illegal act and reestablish the situation which would, in all

25 26 27
Gray (2010), 589–90. Draft Articles, Art. 43. ILC Ybk 2000/II(2), 37.
 remedies 511

probability, have existed if that act had not been committed’.28 The
Court there was clearly describing the general obligation of full repar-
ation,29 an obligation which encompasses not only restitution but other
forms of reparation, such as compensation.30 Restitution, as merely one
available form of reparation, requires only the re-establishment of the
status quo ante. Items such as lost profits or lost expectations may be
compensable but they are not part of the process of restitution as such.

16.2.2 The forms of restitution

As the commentary states, restitution ‘has a broad meaning, encompass-
ing any action that needs to be taken by the responsible State to restore
the situation resulting from its internationally wrongful act’.31 It
includes both material and juridical restitution.
Material restitution may include the return or restoration of territory,
individuals or property.32 One instance in which the International Court
made an order for restitution was in the Temple case. That case concerned
a dispute regarding whether the Temple of Preah Vihear was located in
territory over which Cambodia or Thailand has sovereignty. One of
Cambodia’s submissions, which the Court referred to as ‘concerning
restitution’,33 was that the Court ‘adjudge and declare that the sculp-
tures, stelae, fragments of monuments, sandstone model and ancient
pottery which have been removed from the Temple by the Thai author-
ities since 1954 are to be returned’.34 After finding that the Temple is
situated in Cambodian territory, the Court ordered that ‘Thailand is
under an obligation to restore to Cambodia any objects of the kind
specified in Cambodia’s . . . Submission’.35 In the Wall Advisory Opinion
the Court stated that Israel is obliged by way of restitution to ‘return the
land, orchards, olive groves and other immovable property seized from
any natural or legal person for purposes of construction of the wall in the
Occupied Palestinian Territory’, to the extent that it would not be
materially impossible.36
28 29
Factory at Chorzów, (1928) PCIJ Ser. A No. 17, 47. ILC Ybk 2000/II(2), 43.
30 31
ARSIWA Commentary, Art. 35, §2. ARSIWA Commentary, Art. 35, §5.
32
Ibid. See also the cases referred to in ARSIWA Commentary, Art. 35, §5 nn. 529–32.
33 34
Temple of Preah Vihear (Cambodia v. Thailand), ICJ Rep. 1962 p. 6, 36. Ibid., 11.
35
Ibid., 37. See also ARSIWA Commentary, Art. 35, §5, stating that ‘an international court
or tribunal can, by determining the legal position with binding force for the parties,
award what amounts to restitution under another form’, and the cases referred to in fn.
537.
36
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep.
2004 p. 136, 198.
512 cessation and reparation

Often, the result of restitution will be indistinguishable from that of

cessation.37 In some cases the International Court has ordered the return
or restoration of territory, individuals or property in the context of the
preliminary obligation of cessation, although the same conduct would
have been required by way of restitution. For example, in the Tehran
Hostages case the International Court ordered that Iran terminate the
detention of the US diplomatic and consular staff by way of cessation.38
Similarly, in the Temple case the Court ordered that the Thai forces
withdraw from Cambodian territory by way of cessation.39
Juridical restitution involves the modification of a legal situation.40
This can be a modification within the legal system of the responsible
state – for example, the revocation of a provision of national law enacted
in violation of international law. The modification required could also be
one in the responsible state’s relations with the injured state. In the
Arrest Warrant case, for example, the International Court ordered by
way of restitution that Belgium cancel the arrest warrant issued against
the then Foreign Minister of the Democratic Republic of the Congo.41 As
with material restitution, the International Court has also required that
there be modification of a legal situation in the context of the prelimin-
ary obligation of cessation. In Germany v. Italy the Court ordered that the
Italian domestic court decisions infringing Germany’s jurisdictional
immunity cease to have effect.42

16.2.3 Limitations on the availability of restitution

16.2.3.1 Material impossibility
Article 35 states that restitution is only required ‘to the extent that [it] is
not materially impossible’.43 It is clear from this formulation that resti-
tution may be only partly excluded. There are few examples of cases in
37
See Chapter 14.
38
United States Diplomatic and Consular Staff in Tehran (US v. Iran), ICJ Rep. 1980 p. 3, 44–5. The
ICJ later held separately that Iran was under an obligation to make reparation to the
United States: ibid., 41–2, 45.
39
Temple, ICJ Rep. 1962 p. 6, 36. Only after this did the ICJ go on to deal with Cambodia’s
submission ‘relating to restitution’: ibid., 36. See also Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), ICJ Rep. 2002
p. 303, 451–2.
40
ARSIWA Commentary, Art. 35, §5. See also the cases referred to in ARSIWA
Commentary, Art. 35, §5 nn. 533–5.
41
Arrest Warrant of 11 April 2000 (DRC v. Belgium), ICJ Rep. 2002 p. 3, 32.
42
Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening), ICJ, 3 February
2012, §137. See further Chapter 14.
43
ARSIWA, Art. 35(a).
 remedies 513

which courts and tribunals have held that restitution is materially

impossible. This may be explicable on the basis that in such cases the
claimant state, recognizing the facts, has simply elected to seek compen-
sation. One case in which the issue is mentioned in passing is the Bosnian
Genocide case. In that case, the International Court held that Serbia had
violated its obligations to prevent and punish genocide under the Geno-
cide Convention.44 The Court noted that ‘the Applicant recognizes, it is
inappropriate to ask the Court to find that the Respondent is under
an obligation of restitutio in integrum. Insofar as restitution is not
possible . . .’.45 Another possible example is the pending case of Costa Rica
v. Nicaragua. Costa Rica has alleged that Nicaragua felled trees on Costa
Rican territory which were more than 200 years old.46 If this allegation
were found to be true, restitution of 200-year-old trees would be materi-
ally impossible.
Cases in which restitution is ‘materially impossible’ encompass situ-
ations in which property is permanently lost or destroyed,47 although
material impossibility covers a broader range of situations, as can be
seen from the Forests of Central Rhodope case. That case concerned a claim
on behalf of Greek nationals in relation to the wrongful taking of forests
by Bulgaria. Restitution was held to be materially impossible for a
combination of reasons: as the claim was only brought on behalf of some
of those who had had an interest in the forestry operations, it would
have been inappropriate to order the return of the forests in their
entirety; the forests were not in the same condition as at the time of
their taking, which was of relevance given that the rights had been
expressed as a right to the stumpage of a fixed amount of wood; further-
more, since the time of the taking, third parties had acquired rights to
the forests.48 It should be noted that restitution is not materially impos-
sible merely because of legal or practical difficulties.49 As Article 32
makes clear, a state ‘may not rely on the provisions of its internal law
as justification for failure to comply with its obligations’.

44
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December
1948, 78 UNTS 277.
45
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 233.
46
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Oral
Proceedings, 11 January 2011, CR 2011/1, 30 (Ugalde).
47
ARSIWA Commentary, Art. 35, §8.
48
Affaire des forêts du Rhodope central (fond) (Grèce contre Bulgarie), (1933) 3 RIAA 1405, 1432.
49
ARSIWA Commentary, Art. 35, §8.
514 cessation and reparation

16.2.3.2 Disproportionate burden

Restitution is also not required to the extent that it involves ‘a burden
out of all proportion to the benefit deriving from restitution instead of
compensation’.50 Although the Great Belt case was ultimately settled, in
the provisional measures phase of the case Denmark argued that ‘if the
Court ruled in favour of Finland on the merits, any claim by Finland
could not be dealt with by an order for restitution, but could only be
satisfied by damages inasmuch as restitution in kind would be exces-
sively onerous’.51 The dispute concerned a bridge being built by Den-
mark over the Great Belt which would impede the passage of Finnish
vessels, but only fully assembled drill ships and oil rigs.
It is quite common for the disproportionality of restitution to be raised
in cases concerning a breach of a procedural obligation. In Pulp Mills the
International Court held that Uruguay had breached procedural obliga-
tions relating to the construction of a mill on the River Uruguay. Argen-
tina submitted that restitution in the form of the mill being dismantled
was the appropriate form of reparation.52 Uruguay argued that this
would have involved a ‘striking disproportion between the gravity of
the consequences of the wrongful act of which it is accused and those of
the remedy claimed’.53 When describing the customary international
law on reparation, the Court stated that ‘where restitution is materially
impossible or involves a burden out of all proportion to the benefit
deriving from it, reparation takes the form of compensation or satisfac-
tion’.54 The Court concluded:
[T]he procedural obligations under the 1975 Statute did not entail any ensuing
prohibition on Uruguay’s building of the Orion (Botnia) mill, failing consent by
Argentina, after the expiration of the period for negotiation . . . As Uruguay was
not barred from proceeding with the construction and operation of the Orion
(Botnia) mill after the expiration of the period for negotiation and as it breached
no substantive obligation under the 1975 Statute, ordering the dismantling of the
mill would not, in the view of the Court, constitute an appropriate remedy for
the breach of procedural obligations.55

Thus where the obligation breached is procedural in character – that

is, where the same substantive result could and probably would have

50
ARSIWA, Art. 35(b).
51
Passage through the Great Belt (Finland v. Denmark), Provisional Measures, ICJ Rep. 1991
p. 12, 19.
52
Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Rep. 2010 p. 14, 102.
53 54 55
Ibid., 103. Ibid. Ibid., 104.
 remedies 515

been arrived at had the relevant procedures been followed – it may well
be the case that restitution would be disproportionate. As the commen-
tary states,
[I]n cases of restitution not involving the return of persons, property or territory
of the injured State, the notion of reverting to the status quo ante has to be applied
having regard to the respective rights and competences of the States concerned.
This may be the case, for example, where what is involved is a procedural
obligation conditioning the exercise of the substantive powers of a State. Restitu-
tion in such cases should not give the injured State more than it would have been
entitled to if the obligation had been performed.56

The International Court’s decision in Avena can also be seen in this

light. The case concerned the United States’ breach of obligations under
the Vienna Convention on Consular Relations.57 The International
Court held, among other things, that the United States had breached
Article 36(1)(b) of the Convention by failing to notify Mexican nationals
of their rights under that provision.58 Mexico alleged that restitution in
the form of the annulment of the convictions and sentences of the
nationals concerned was the appropriate remedy.59 Accepting instead
the United States’ submission, the Court held that ‘the remedy to make
good these violations should consist in an obligation on the United States
to permit review and reconsideration of these nationals’ cases by the
United States courts . . . with a view to ascertaining whether in each case
the violation of Article 36 committed by the competent authorities
caused actual prejudice to the defendant in the process of administration
of criminal justice’.60 As the Court explained, ‘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 obli-
gations which preceded them’.61

16.2.4 A flexible approach

The International Court has left parties considerable freedom to deter-
mine the specific modality for effecting restitution. For example, in the
Arrest Warrant case the Court held that ‘Belgium must, by means of its
own choosing, cancel the arrest warrant of 11 April 2000 and so inform
the authorities to whom that warrant was circulated.’62 The same can be

56
ARSIWA Commentary, Art. 34, §3.
57
Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261.
58
Avena and Other Mexican Nationals (Mexico v. US), ICJ Rep. 2004 p. 12, 71.
59 60 61 62
Ibid., 58. Ibid., 60. Ibid. Arrest Warrant, ICJ Rep. 2002 p. 3, 33.
516 cessation and reparation

said of the Court’s order in Germany v. Italy. In that case the Court held
that by way of restitution Italy was required to reverse the effects
produced by the decisions of its courts which violated Germany’s juris-
dictional immunity. The Court elaborated that ‘the Respondent has the
right to choose the means it considers best suited to achieve the required
result. Thus, the Respondent is under an obligation to achieve this result
by enacting appropriate legislation or by resorting to other methods of
its choosing having the same effect.’63
This flexibility was also evident in relation to the remedy the Court
ordered in Avena. As to the United States’ obligation to permit ‘review
and reconsideration’ of the convictions and sentences of the Mexican
nationals in question, the Court explained:
In stating in its judgment in the LaGrand case that ‘the United States of America, by
means of its own choosing, shall allow the review and reconsideration of the convic-
tion and sentence’, the Court acknowledged that the concrete modalities for such
review and reconsideration should be left primarily to the United States.64

Given the recurring disputes concerning the United States’ observance

of its Article 36 obligations,65 the Court did provide some clarification
regarding what is required of the United States. The Court stated that the
review and reconsideration must be ‘effective’ and should occur in judi-
cial proceedings.66 It also observed that by virtue of the way in which the
US domestic law ‘procedural default rule’ is applied, individuals can be
barred from raising a violation of their Convention rights before a court
and that clemency proceedings alone would not appear to provide appro-
priate review and reconsideration.67 Despite these qualifications, the
United States is still left with considerable freedom to determine how
to fulfil its obligation.

16.3 Compensation
16.3.1 The basic principle
As noted already, restitution may be inadequate for full reparation (for
example, where property is wrongfully seized and there is additional
material damage), or unavailable where one of the exceptions in Article
63
Jurisdictional Immunities, ICJ, 3 February 2012, §137.
64
Avena, ICJ Rep. 2004 p. 12, 62 (emphasis added by the Court in Avena).
65
Vienna Convention on Consular Relations (Paraguay v. US), Order, ICJ Rep. 1998 p. 426;
LaGrand (Germany v. US), ICJ Rep. 2001 p. 466.
66 67
Avena, ICJ Rep. 2004 p. 12, 65–6. Ibid., 63, 66.
 remedies 517

35 applies or where restitution is validly waived by the injured state.

Article 36 states:
1. The State responsible for an internationally wrongful act is under an obliga-
tion to compensate for the damage caused thereby, insofar as such damage is not
made good by restitution.
2. The compensation shall cover any financially assessable damage including
loss of profits insofar as it is established.

On both first reading and second reading, the ILC debated using the
terms ‘moral damage’, ‘material injury’ and ‘non-material injury’ in
Articles 36 and 37.68 The formulation chosen was that compensation
be expressed to be payable in relation to ‘financially assessable damage’,
as stated in Article 36(2), with satisfaction being the appropriate remedy
for non-financially assessable damage.69 ‘Financially assessable damage’
is any damage which is capable of being evaluated in financial terms.70
This excludes compensation for moral damage to a state.71 However, it
includes moral damage to nationals where a state claims on their behalf
by way of diplomatic protection. This means that financially assessable
damage can not only include material losses of nationals, such as the loss
of earnings, but also non-material losses, such as the loss of loved ones
and pain and suffering.72
The commentary gives a large number of examples of situations in
which compensation has been paid across a wide range of disputes,
including in relation to damage to ships and aircraft,73 attacks on diplo-
matic premises,74 environmental damage75 and damage to nationals.76

68
Draft Articles Commentary, Art. 45, §§3–5; Crawford, Third Report, 54; ILC
Ybk 2000/II(2), 39–41, 43. On the issue of material and moral damage, see Chapter 15.
69
ILC Ybk 2000/I, 390–1 (Chairman of the Drafting Committee); ARSIWA Commentary,
Art. 37, §3.
70 71
ARSIWA Commentary, Art. 36, §5. ARSIWA Commentary, Art. 36, §1.
72
ARSIWA Commentary, Art. 36, §16.
73
For example, Corfu Channel (UK v. Albania), Compensation, ICJ Rep. 1949 p. 244; M/V Saiga
(No. 2), (1999) 120 ILR 143. See further ARSIWA Commentary, Art. 36, §§9–11 and the
cases referred to therein.
74
For example, the agreement made between the United States and China following the
bombing of the Chinese embassy in Belgrade in 1999: S. D. Murphy (ed.), ‘Contemporary
practice of the United States relating to international law’, (2000) 94 AJIL 102, 127. See
further ARSIWA Commentary, Art. 36, §12 and the cases referred to therein.
75
For example, the Trail Smelter Case, (1938 and 1941) 3 RIAA 1905. See further ARSIWA
Commentary, Art. 36, §13–15 and the cases referred to therein.
76
For example, the Lusitania Cases, (1923) 7 RIAA 32. See further ARSIWA Commentary,
Art. 36, §§ 16–20 and the cases referred to therein.
518 cessation and reparation

16.3.2 The practice of the Permanent and International Courts

Perhaps surprisingly the Permanent Court and the International Court
have very rarely awarded compensation.77 It has been suggested that this
is because ‘[m]any sovereign interests do not lend themselves to quanti-
fication’,78 but this is neither here nor there. To the extent that the
infringement of a sovereign interest does not give rise to financially
assessable damage, but only moral damage to the state, compensation
is not the appropriate remedy. It seems rather that the Court is averse to
awarding compensation.
At the time of the second reading, damages had been sought in
approximately one third of the cases commenced before the Permanent
Court and the International Court.79 In at least two cases in which
compensation has been sought, the International Court has held that
the form of reparation should be determined by the Court only failing an
agreement by the parties.80 The Court has also employed other tech-
niques to avoid determining the quantum of compensation due. In the
Gabčı́kovo-Nagymaros case, after determining that both Slovakia and Hun-
gary were entitled to compensation the Court stated that ‘[g]iven the fact,
however, that there have been intersecting wrongs by both Parties, the
Court wishes to observe that the issue of compensation could satisfactor-
ily be resolved in the framework of an overall settlement if each of the
Parties were to renounce or cancel all financial claims and counter-
claims’.81 In Cameroon v. Nigeria, despite the fact that Cameroon alleged
that it had suffered material damage,82 the Court held that ‘by the very
fact of the present Judgment and of the evacuation of the Cameroonian
territory occupied by Nigeria, the injury suffered by Cameroon by reason
of the occupation of its territory will in all events have been sufficiently
addressed’.83
The International Court did order that compensation be paid in the
Corfu Channel case, the first case it heard.84 However, it was not until
2010 that the Court held for a second time that compensation was
77
SS Wimbledon, (1923) PCIJ Ser. A No. 1; Corfu Channel, Compensation, ICJ Rep. 1949 p. 244;
Diallo, ICJ, 30 November 2010.
78
Barker, in Crawford, Pellet and Olleson (2010) 599, 603.
79
Crawford, Third Report, 48.
80
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Rep. 1986
p. 14, 149; Armed Activities on the Territory of the Congo (DRC v. Uganda), ICJ Rep. 2005
p. 168, 281.
81
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7, 81.
82 83
Cameroon v. Nigeria, ICJ Rep. 2002 p. 303, 317. Ibid., 452.
84
Corfu Channel, Compensation, ICJ Rep. 1949 p. 244, 250.
 remedies 519

payable, in the diplomatic protection case of Diallo.85 The Court did not
set the amount of compensation due, but left the matter to be resolved
by the parties at Guinea’s request.86 It was only when the parties failed to
reach agreement within the six-month time limit specified by the Court
that it was required to determine the quantum of compensation due.87

16.3.3 Quantification of damage

Other bodies have developed substantial case law regarding compensa-
tion,88 including the Iran–US Claims Tribunal,89 international human
rights bodies,90 investment tribunals,91 and the International Tribunal
for the Law of the Sea.92 The appropriate heads of compensable damage
and the principles of assessment to be applied in quantification will vary
depending on the primary obligation in question and the facts of the
case.93 While these issues cannot be comprehensively addressed, the two
awards of compensation by the International Court can be considered by
way of example.
The Corfu Channel case concerned damage suffered by UK ships from
mines in Albanian territorial waters. The Court entrusted the evaluation
of the United Kingdom’s claim for compensation to appointed experts.94
Compensation was awarded in relation to each of the three heads of
damage sought by the United Kingdom. First, for the destruction of the
Saumarez, the Court awarded the replacement cost of the vessel at its
time of loss (£700,087). Although the experts estimated that the replace-
ment value was greater than that submitted by the United Kingdom, the
Court could not award more than the amount claimed by the United
Kingdom.95 Second, the Court awarded the £93,812 claimed by the
United Kingdom for damage to the Volage. Although the experts deter-
mined that a lesser amount was due, the Court considered that the

85
Diallo, ICJ, 30 November 2010, §165(7).
86
Diallo, ICJ, 30 November 2010, §§162, 165(8).
87
Diallo, Compensation, ICJ, 19 June 2012.
88
See generally Barker (2010), 604–10. In relation to compensation for the infringement of
property rights see ARSIWA Commentary, Art. 36, §§20–26.
89
See Pellonpää, in Lillich and Magraw (1998) 185; Stewart, in ibid. 325.
90
See Shelton (2005), ch. 9.
91
See Marboe, Calculation of Compensation and Damages in International Investment Law (2009),
chs. 3, 5.
92
See M/V Saiga (No. 2), (1999) 120 ILR 143, 198–201.
93
ARSIWA Commentary, Art. 36, §7.
94
Corfu Channel (UK v. Albania), Order, ICJ Rep. 1949 p. 237.
95
Corfu Channel, Compensation, ICJ Rep. 1949 p. 244, 249.
520 cessation and reparation

United Kingdom’s figure was reasonable and well founded in the light of
necessary approximations made by the experts.96 Third, the Court
awarded £50,048 in relation to payments made by the United Kingdom
in respect of the deaths of and injury to naval personnel and for expend-
iture which was substantiated in documents submitted by the United
Kingdom.97
Diallo concerned a claim brought by Guinea in relation to the arbitrary
arrest, detention and expulsion of its national from the Democratic
Republic of the Congo. Guinea sought three heads of damage in relation
to those of its claims upheld by the Court.98 In relation to non-material
damage, the Court awarded Guinea US$85,000.99 Despite the absence of
any evidence of the non-material injury suffered by Diallo, the Court
concluded that the ‘inevitable consequence’ of the wrongful acts of the
Democratic Republic of the Congo would have been significant psycho-
logical suffering and loss of reputation.100 In determining the quantum
due, the Court relied on decisions of various tribunals and human rights
courts indicating that the quantification of non-material harm should be
based on ‘equitable considerations’.101 The other two heads of damage
sought related to material damage: loss of remuneration and loss of
property. While the Court accepted that compensation can be payable
for remuneration lost while in detention, and appeared willing to accept
that compensation can be payable for remuneration lost following expul-
sion if it is not purely speculative,102 it found the losses alleged to be
unsubstantiated.103 In relation to the furnishings lost from Diallo’s
apartment, the Court did award US$10,000. While Guinea did not estab-
lish that the loss of this property was caused by the Democratic Republic
of the Congo,104 the Court awarded this amount, again based on ‘equit-
able considerations’, in consideration of the amount Diallo would have
nonetheless had to pay to transport his property out of the country.105
The quantum of compensation awarded by the International Court is
low in the light of the fact that Guinea had sought US$7,310,148.106 But

96 97
Ibid. Ibid., 249–50.
98
Diallo, Compensation, ICJ, 19 June 2012, §10. The fourth head of damage sought by
Guinea related to a claim held to be inadmissible: ibid., §53.
99 100 101 102
Ibid., §25. Ibid., §21. Ibid., §24. Ibid., §§40, 49.
103 104
Ibid., §§46, 49. Ibid., §31.
105
Ibid., §33. The Court rejected claims regarding the loss of high-value items from the
apartment and the loss of money in bank accounts as unsubstantiated: ibid., §§34–5.
106
$250,000 in respect of non-material damage, $80,000 in respect of income lost while
Diallo was in custody, $6,430,148 in respect of income lost following Diallo’s expulsion
from the DRC and $550,000 in respect of lost assets: ibid., §§10, 37.
 remedies 521

this is understandable given Guinea’s complete failure to substantiate

the alleged losses.107 As to how the value of US$85,000 was arrived at,
presumably the Court relied on the fact that Diallo was detained for
seventy-two days without any due process or explanation, was then
arbitrarily expelled from the state in which he had lived for over thirty
years, that the expulsion was designed to prevent Diallo pursuing litiga-
tion against the state, and there had been a considerable delay, the
events in question having occurred more than sixteen years
previously.108
Judge Greenwood was of the view that a smaller sum should have been
awarded.109 In his Declaration, Judge Greenwood considered inter-
national human rights law jurisprudence, including the European deci-
sion of Lupsa v. Romania in which €15,000 (the equivalent of US$19,000 at
the time) was considered equitable compensation for the moral and
material damage suffered by a man who was unlawfully expelled from
Romania, where he had resided for fourteen years.110 The M/V Saiga
(No. 2) could also be cited. In that case, US$17,750 was awarded in respect
of the wrongful detention of the ship’s captain for a period of 123 days
and US$76,000 in respect of the wrongful detention of the ship’s crew.111
As detailed in an Annex to the decision, US$3,300 was awarded in respect
of the majority of the crew members, who were detained for periods
ranging from 20 to 123 days.112
Given this context, the Court’s award of compensation for non-
material damage can be considered reasonable, although it is regrettable
that the Court did not explain its calculation. As Judge Greenwood
stated,
What is required is not the selection of an arbitrary figure but the application of
principles which at least enable the reader of the judgment to discern the factors
which led the Court to fix the sum awarded. Moreover, those principles must be

107
As Judge Greenwood stated, ‘Guinea has produced evidence regarding the finances of
both Mr. Diallo and the two companies but it is evidence which undermines, rather
than sustains, its claim. Equitable principles should not be used to make good the
shortcomings in a claimant’s case by being substituted for evidence which could have
been produced if it actually existed: equity is not alchemy’: Diallo, Compensation, ICJ, 19
June 2012, Declaration of Judge Greenwood, §5.
108 109
Ibid., §10. Ibid., §11.
110
Ibid., §9, referring to Lupsa v. Romania, [2006] ECtHR 10337/04.
111
M/V Saiga (No. 2), (1999) 120 ILR 143, 168, 201. For historical examples of compensation
paid for wrongful arrest and detention, see Shelton (2005), 72–3.
112
M/V Saiga (No. 2), (1999) 120 ILR 143, 168 and Annex. US$1,700 was awarded in respect of
two of the crew members who were injured and so released after four days.
522 cessation and reparation

capable of being applied in a consistent and coherent manner, so that the amount
awarded can be regarded as just, not merely by reference to the facts of this case,
but by comparison with other cases.113

16.3.4 Loss of profits

Article 36(2) recognizes that compensation for loss of profits may be
appropriate in certain cases. A distinction can be drawn between two
types of profits: profits that were anticipated to accrue prior to the date
of judgment and those anticipated to accrue after that date. In relation to
the former, compensation may be sought both where there has been
interference with a claimant’s title to their property, such as occurred in
the Chorzów Factory case,114 and in situations where there has merely
been temporary loss of use of property, such as in S.D. Myers v. Canada.115
Where there is no interference with title, damages are justified to com-
pensate for loss of income that the claimant was entitled to by virtue of
undisturbed ownership.116 Although less clearly articulated, in situ-
ations in which title is unlawfully taken, damages can be justified on
the basis of the claimant’s continuing beneficial interest in the
property.117
More complicated is the award of damages in relation to profits antici-
pated after the date of judgment. Generally, such damages will not be
justified, as following judgment the income-producing property in ques-
tion will have been restored, either by way of restitution or compen-
sation. However, claims for future lost profits have been upheld in the
context of contractually protected interests,118 such as occurred in
LIAMCO v. Libya.119 The damages awarded related to a concession con-
tract held by LIAMCO for petroleum exploration and production, which
was to run until 1988 but was nationalized in the early 1970s. Naturally,
113
Diallo, Compensation, ICJ, 19 June 2012, Declaration of Judge Greenwood, §7.
114
The case concerned the unlawful taking of the factory in question. Although the case
was ultimately settled, the Permanent Court earlier decided to hold an expert enquiry
into the appropriate quantum of compensation to be paid considering, among other
things, any profit that would have accrued from the time of the taking of the factory to
the date of the Court’s judgment: Factory at Chorzów, (1928) PCIJ Ser. A No. 17, 51–3.
115
S.D. Myers Inc. v. Canada, Second Partial Award, (2002) 8 ICSID Reports 124, 137. The case
concerned Canada’s interference in S. D. Myer’s investment in closing the United
States–Canada border to the movement of polychlorinated biphenyl, a hazardous waste
which the claimant company remediated. For the tribunal’s complex calculation to the
quantum of lost profits, see ibid., 159–70.
116 117
ARSIWA Commentary, Art. 36, §29. ARSIWA Commentary, Art. 36, §30.
118
ARSIWA Commentary, Art. 36, §31.
119
Libyan American Oil Company v. Libya, (1977) 62 ILR 140.
 remedies 523

a future income stream will only be compensated up to the time when

the contractually protected interest ends.120 Thus damages for future
lost profits would not be appropriate if, and from the time that, the
contract under which the protected interest existed were lawfully
terminated.121
As Article 36 indicates, compensation for loss of profits will only be
warranted if that loss is ‘established’. While this must always be proved,
it is of particular concern in relation to future lost profits. The commen-
tary elaborates:
[L]ost profits have not been as commonly awarded in practice as compensation
for accrued losses. Tribunals have been reluctant to provide compensation for
claims with inherently speculative elements. When compared with tangible
assets, profits (and intangible assets which are income-based) are relatively
vulnerable to commercial and political risks, and increasingly so the further
into the future projections are made. In cases where lost future profits have
been awarded, it has been where an anticipated income stream has attained
sufficient attributes to be considered a legally protected interest of sufficient
certainty to be compensable. This has normally been achieved by virtue
of contractual arrangements or, in some cases, a well-established history of
dealings.122

In Asian Agricultural Products, the claim for loss of profits of a newly

established business was rejected due to a lack of evidence and of estab-
lished earnings.123 The tribunal held that it was necessary that profits be
‘reasonably anticipated’ and ‘probabl[e] and not merely possible’.124 Not
only must loss of profits be ‘established’, but, consistent with the
principle of full reparation in Article 31, the loss must be shown to have
been ‘caused’ by the internationally wrongful act.125

16.3.5 Punitive damages

The notion of ‘punitive damages’ derives from the common law and
involves the payment of damages in addition to those corresponding to
actual losses suffered, in circumstances where a defendant has acted
with recklessness, malice or deceit, or otherwise reprehensibly.126 Puni-
tive damages are intended to punish the defendant and thereby deter

120
ARSIWA Commentary, Art. 36, §31.
121
As occurred, for example, in Sylvania Technical Systems v. Iran, (1985) 8 Iran–US CTR 298,
319.
122
ARSIWA Commentary, Art. 36, §27.
123 124
Asian Agricultural Products v. Sri Lanka, (1990) 4 ICSID Reports 250. Ibid., 292.
125 126
ARSIWA Commentary, Art. 36, §32. Wittich (2010), 667.
524 cessation and reparation

blameworthy conduct.127 The ARSIWA generally do not allow for the

award of punitive damages. The commentary states that ‘the function of
article 36 is purely compensatory, as its title indicates. Compensation
corresponds to the financially assessable damage suffered by the injured
State or its nationals. It is not concerned to punish the responsible State,
nor does compensation have an expressive or exemplary character.’128
During both the first and second readings the issue of punitive dam-
ages also arose in the context of Article 37, dealing with satisfaction. The
position taken in the Draft Articles was equivocal. Special Rapporteur
Arangio-Ruiz originally suggested an article that provided that possible
forms of satisfaction include ‘nominal or punitive damages’.129 The
Draft Article actually adopted referred to the possibility ‘in cases of gross
infringement of the rights of the injured State’ of ‘damages reflecting the
gravity of the infringement’.130 The Drafting Committee explained that
the provision was intended to deal
with what was known in common law as ‘exemplary damages’, in other words,
damages on an increased scale awarded to the injured party over and above the
actual loss, where the wrong done was aggravated by circumstances of violence,
oppression, malice, fraud or wicked conduct on the part of the wrongdoing party.
The purpose of that type of remedy was to set an example.131

It has been suggested that what the Drafting Committee really had in
mind was aggravated rather than punitive damages.132 In any case, on
second reading the ILC unequivocally took the position that punitive
damages are not a generally available form of satisfaction.133 The com-
mentary now states that ‘satisfaction is not intended to be punitive in
character, nor does it include punitive damages’.134
However, the position taken in relation to serious breaches of obliga-
tions owed to the international community as a whole was somewhat
different. After acknowledging that there is no authority and very little
justification for the award of punitive damages in the absence of a special
127
Several common law jurisdictions distinguish between punitive damages and
aggravated damages. While aggravated damages are also awarded due to reprehensible
conduct on the part of the wrongdoing party, they are still compensatory in nature in
that they address moral damage: Shelton (2005), 39–40; Wittich (2010), 667–8.
128
ARSIWA Commentary, Art. 36, §4.
129
Arangio-Ruiz, Second Report, ILC Ybk 1989/II(1), 56.
130
Draft Articles, Art. 45(2)(c).
131
ILC Ybk 1992/I, 221 (Chairman of the Drafting Committee).
132
Wittich (2010), 673; Crawford, Third Report, 56.
133
Crawford, Third Report, 56; ILC Ybk 2000/I, 391 (Chairman of the Drafting Committee).
134
ARSIWA Commentary, Art. 37, §8.
 remedies 525

regime for their imposition,135 it was suggested that a regime could be

established in relation to these breaches.136 The ILC rejected that puni-
tive damages could be awarded, even in circumstances concerning ser-
ious breaches of obligations owed to the international community as a
whole. Although the Drafting Committee suggested retaining the possi-
bility of ‘damages reflecting the gravity of the breach’,137 that expression
was also later deleted, even though there was general agreement that
that phrase was not to be equated with punitive damages.138 This deci-
sion, fully in accord with the comments of governments, shows the
unwillingness to introduce into the field of state responsibility anything
punitive in character.
Article 41 as adopted leaves space for the possibility that such conse-
quences could be accepted in the future. Paragraph 3 provides that the
consequences stated in the Article are ‘without prejudice to . . . such
further consequences that a breach to which this Chapter applies may
entail under international law’. As the commentary states,
The 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. In addition, paragraph 3 reflects the conviction that the
legal regime of serious breaches is itself in a state of development. By setting out
certain basic legal consequences of serious breaches in the sense of article 40,
article 41 does not intend to preclude the future development of a more elaborate
regime of consequences entailed by such breaches.139
According to Wittich there is ‘not a single case in contemporary
practice in which an international court or tribunal has awarded puni-
tive damages’.140 In a number of cases, courts and tribunals have found
states to have committed serious breaches of their international obliga-
tions, but that fact can be seen to have played no role in their determin-
ations of reparation due.141
135
For example, another rule providing for punitive damages may apply by way of lex
specialis, or the parties to a particular dispute might consent to an international court or
tribunal having power to award punitive damages.
136
Crawford, Third Report, 56. See also ibid., 107, 108.
137
ILC Ybk 2000/I, 393 (Chairman of the Drafting Committee).
138
Crawford, Third Report, 12; ILC Ybk 2001/I, 104–5, 108 (Chairman of the Drafting
Committee).
139
ARSIWA Commentary, Art. 41, §14.
140
Wittich (2010), 671. See also Crawford, Third Report, 56; Jørgensen, (1997) 68 BYIL 247,
266.
141
For example, Armed Activities (DRC v. Uganda), ICJ Rep. 2005 p. 168, 227, where the
International Court held Uganda to have committed a ‘grave violation of the
prohibition on the use of force’. See further Wittich (2010), 671.
526 cessation and reparation

In other cases, international courts and tribunals have explicitly

denounced the relevance of punitive considerations. In Letelier v. Chile a
US district court held that the plaintiffs were entitled to approximately
US$5 million, including $2 million by way of punitive damages, for the
assassination in the United States of Orlando Letelier, an opponent of
the then military regime.142 Chile did not make any payment and the
amount due was subsequently determined by a Chile–US International
Commission without reference to punitive damages.143 In his Separate
Concurring Opinion, Commissioner Orrego Vicuña stated: ‘It should . . .
be reiterated that international law has not accepted as one of its prin-
ciples the concept of punitive damages.’144 In Velásquez Rodrı́guez, the
Inter-American Court of Human Rights stated that the principle of
punitive damages ‘is not applicable in international law at this time’.145
The European Court of Human Rights ‘has consistently rejected claims
for punitive damages’.146 Pecuniary awards out of proportion to com-
pensable damage can be explained on the basis that they are properly
characterized as an award of satisfaction to make good moral damage.147
Shelton argues that punitive damages should nonetheless be
recognized
where the conduct clearly warrants a severe response. In particular, where there
is clear evidence of a pattern of gross and systematic violations deliberately
committed by the government, international tribunals concerned about impun-
ity must consider enhancing awards or looking to non-monetary remedies. It is
important that governments not continue to violate human rights after paying
nominal or low compensatory damages to victims . . . Fundamentally the ques-
tion of punitive or exemplary damages is one of utility. Several justifications can
be given for their use: punishment, deterrence . . . The purpose is to reprove a
state for its conduct and deter it from similar actions in the future.148

But the overwhelmingly negative reaction to the ILC’s modest proposal

for ‘damages reflecting the gravity of the breach’ shows that the idea of
punitive damages under international law is currently unsustainable.

142
Letelier v. Chile, 502 F. Supp. 259 (1980), relevant extract reported at 88 ILR 747, 747–8.
143
Re Letelier and Moffitt, (1992) 88 ILR 727, 735–7. The Commission concluded that
$2,611,892 was owed. Chile did not admit liability but agreed to make an ex gratia
payment equal to the amount that would have been due had liability been established,
to facilitate the normalization of relations: ibid., 730.
144 145
Ibid., 741. Velásquez Rodrı́guez Case, Compensation, (1989) 95 ILR 232, 316.
146
Varnava and Others v. Turkey, [2009] ECtHR 16064/90, §223. See further Wittich (2010),
671–2; Shelton (2005), 360.
147
For example, Rainbow Warrior, (1990) 20 RIAA 215, 224. See further Wittich (2010), 672.
148
Shelton (2005), 366–7.
 remedies 527

16.4 Satisfaction
16.4.1 The basic principle
Article 37 provides:
(1) The State responsible for an internationally wrongful act is under an obliga-
tion 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 acknowledgment 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.

Satisfaction is the remedy ‘for those injuries, not financially assess-

able, which amount to an affront to the State’,149 in other words moral
damage to a state. The commentary notes that satisfaction is not a
standard form of reparation, but is ‘rather exceptional’.150 It is only
where damage ‘cannot be made good by restitution or compensation’
that satisfaction may be required.
The commentary gives examples of various international obligations,
the breach of which has been considered to warrant satisfaction. These
include insults to the symbols of a state, such as the national flag,151
violations of sovereignty or territorial integrity,152 attacks on ships or
aircraft,153 ill-treatment or deliberate attacks on heads of state, govern-
ment, diplomatic or consular representatives and other protected per-
sons,154 and violations of the premises of embassies, consulates and
residences of members of diplomatic missions.155

16.4.2 Forms of satisfaction

Paragraph 2 gives a non-exhaustive list of forms satisfaction might take:
‘an acknowledgment of the breach, an expression of regret, a formal
apology or another appropriate modality’. These forms of satisfaction are

149 150
ARSIWA Commentary, Art. 37, §3. ARSIWA Commentary, Art. 37, §1.
151
Citing the Magee case (1874) in Whiteman, 1 Damages in International Law (1937–1943),
64–5. See further ARSIWA Commentary, Art. 37, §4 n. 615.
152
Citing Rainbow Warrior, (1990) 20 RIAA 215.
153
Citing the attack against a Soviet aircraft transporting Soviet leader Leonid Brezhnev by
French fighter planes in 1961 in 65 RGDIP 603. See further ARSIWA Commentary, Art.
37, §4 n. 617.
154
Citing Przetacznik, (1974) 78 RGDIP 919, 951.
155
Citing the attack by demonstrators in 1851 on the Spanish consulate in New Orleans in
Moore, 6 A Digest of International Law (1906), 811–19. See further ARSIWA Commentary,
Art. 37, §4 n. 619.
528 cessation and reparation

frequently seen in state practice. For example, when Colombian Black

Hawk helicopters and warplanes allegedly strayed into Ecuadorian terri-
tory in 2006, the Colombian Defence Ministry apologized for any unin-
tentional incursion.156
The examples listed in paragraph 2 are not intended to reflect any
hierarchy or preference.157 Satisfaction may take many other forms and
the ‘appropriate form . . . will depend on the circumstances and cannot
be prescribed in advance’.158 Satisfaction may be generally defined as
any measure which a responsible state is bound to take apart from
restitution or compensation.159 Examples given in the commentary
include due inquiry into the causes of an accident resulting in harm or
injury,160 a trust fund to manage compensation payments in the inter-
ests of the beneficiaries and disciplinary or penal action against individ-
uals whose conduct caused an internationally wrongful act.161
Assurances and guarantees of non-repetition may also amount to a form
of satisfaction.162
It is also possible for satisfaction to consist of a monetary payment.163
The payment of money by way of satisfaction serves a purpose distinct
from any money paid by way of compensation: the former is paid to
make good material damage and moral damage to nationals, the latter is
paid in relation to moral damage to the state.164 In the Rainbow Warrior
affair, the Secretary-General of the UN decided that France should pay
New Zealand US$7 million.165 This amount far exceeded the actual
damage suffered and was plainly awarded by way of satisfaction.166
Another example is the award in I’m Alone. The arbitration related to
the sinking of a Canadian vessel by the US coastguard. The arbitrators
held that while no compensation was payable in respect of the loss of the
ship and the cargo, ‘as a material amend in respect of the wrong the

156
‘Colombian apology for “incursion”’, BBC News, 3 February 2006, available at news.bbc.
co.uk/1/hi/world/americas/4676664.stm.
157 158 159
ARSIWA Commentary, Art. 37, §5. Ibid. Brownlie’s Principles, 574.
160
Citing Myers, ‘Navy to convene a public inquiry on sub accident’, New York Times, 18
February 2001, available at www.nytimes.com, concerning an inquiry convened into
the collision between a US submarine and a Japanese fishing vessel, the Ehime Maru.
161
Citing the killing in Palestine in 1948 of Count Bernadotte, in relation to which there
was a request for action against the guilty individuals in Whiteman (1963–73), 742–3.
See further ARSIWA Commentary, Art. 37, §5 n. 622.
162
ARSIWA Commentary, Art. 37, §5. For assurances and guarantees of non-repetition, see
Chapter 14.
163 164
ARSIWA Commentary, Art. 37, §5. ARSIWA Commentary, Art. 36, §4.
165 166
Rainbow Warrior, (1990) 20 RIAA 215, 224. Crawford, Third Report, 52.
 remedies 529

United States should pay the sum of $25,000 to His Majesty’s Canadian
Government; and they recommend accordingly’.167
Other forms of satisfaction are found in the Rainbow Warrior affair. In
his ruling, the Secretary-General ordered 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, on
the “Rainbow Warrior” by French service agents’.168 He also determined
that the two French agents concerned ‘should be transferred to a French
military facility on an isolated island outside of [sic] Europe for a period
of three years’.169 In the subsequent arbitral proceedings concerning
France’s breach of the Secretary-General’s ruling, the tribunal recom-
mended that New Zealand and France ‘set up a fund to promote close
and friendly relations between the citizens of the two countries, and that
the Government of the French Republic make an initial contribution
equivalent to US Dollars 2 million to that fund’.170 This was in addition
to the tribunal’s finding that its declaration of France’s liability consti-
tuted appropriate satisfaction.171

16.4.3 Judicial declarations

Although such declarations of wrongfulness by competent courts and
tribunals are one of the most common forms of satisfaction, a declar-
ation is not listed in paragraph 2 as one of the possible forms satisfaction
might take. There are two reasons for this omission.
The first relates to the fact that the ARSIWA were not designed
primarily as a set of rules to be applied in disputes resolved by formal
adjudication. They are expressed in terms of the legal relations of states
and not in terms of the powers or jurisdiction of tribunals. A state
cannot grant or offer a declaration in respect of itself; this can only be
done by a competent third party.172 Second, any court or tribunal has
the authority to determine the lawfulness of conduct properly before it
and make a declaration of its findings as a necessary part of determin-
ing the case. A declaration may be made by a court or tribunal merely
as a preliminary step on the way to its decision on the appropriate
form of any reparation, even if it decides that no further remedy is
necessary.173

167 168
SS I’m Alone, (1935) 3 RIAA 1609, 1618. Rainbow Warrior, (1990) 20 RIAA 215, 224.
169 170 171
Ibid., 224. Ibid., 274–5. Ibid., 273.
172
Crawford, Third Report, 55. See also ARSIWA Commentary, Art. 37, §6.
173
ARSIWA Commentary, Art. 37, §6.
530 cessation and reparation

In numerous cases the International Court has considered that a dec-

laration of wrongfulness has constituted an appropriate form of satisfac-
tion.174 In the Corfu Channel case the International Court stated that
to ensure respect for international law, of which it is the organ, the Court must
declare that the action of the British Navy constituted a violation of Albanian
sovereignty. This declaration is in accordance with the request made by Albania
through her Counsel, and is in itself appropriate satisfaction.175

In some cases, the Court has determined that a declaration was the
sole appropriate remedy. In the Bosnian Genocide case, for example, the
Court held that restitution was not possible176 and compensation not
appropriate,177 and made declarations by way of satisfaction.178 The
Arrest Warrant case is an example of a case in which the Court awarded
satisfaction in addition to restitution. It stated:
The Court has already concluded that the issue and circulation of the arrest
warrant of 11 April 2000 by the Belgian authorities failed to respect the immun-
ity of the incumbent Minister for Foreign Affairs of the Congo . . . The Court
considers that the findings so reached by it constitute a form of satisfaction
which will make good the moral injury complained of by the Congo . . .
In the present case, ‘the situation which would, in all probability, have existed
if [the illegal act] had not been committed’ cannot be re-established merely by a
finding by the Court that the arrest warrant was unlawful under international
law . . . 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.179

The Court could instead have held that restitution was a necessary
remedy and then considered whether satisfaction was required in addition.
The Court’s declaration seems rather to have been merely a preliminary
finding made by it which was necessary for the determination of the case.

16.4.4 Limitations on the availability of satisfaction

The final paragraph of Article 37 requires that satisfaction not take a
form humiliating to the responsible state. This provision was included to
174
For example, Corfu Channel (UK v. Albania), ICJ Rep. 1949 p. 4, 35; Bosnian Genocide, ICJ
Rep. 2007 p. 43, 234–5; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France), ICJ Rep. 2008 p. 177, 245; Pulp Mills, ICJ Rep. 2010 p. 14, 102; Application of the
Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), ICJ,
5 December 2011, §169.
175 176
Corfu Channel, ICJ Rep. 1949 p. 4, 35. Bosnian Genocide, ICJ Rep. 2007 p. 43, 233.
177 178
Ibid., 234. Ibid., 234–5. See also Pulp Mills, ICJ Rep. 2010 p. 14, 102, 104.
179
Arrest Warrant, ICJ Rep. 2002 p. 3, 31–2.
 remedies 531

address concerns regarding historical examples of demands for satisfac-

tion that were humiliating.180 One example given by Special Rapporteur
Arangio-Ruiz was the Boxer uprising in China in 1900.181 That event
caused, among other things, the ‘death of the German Ambassador to
China, the looting of several foreign legations, the killing of the chancel-
lor of the Japanese legation and of other foreign citizens, as well as the
wounding of other foreign nationals and the profanation of foreign
cemeteries’. The joint note sent to the Chinese government by the states
concerned included ‘extremely vexatious requests, such as the negoti-
ation of new and more favourable commercial agreements’.182
Paragraph 3 also requires that satisfaction ‘not be out of proportion to
the injury’. Again, this requirement is little discussed in practice. It has
been suggested that the requirement is directed to situations in which
satisfaction takes the form of a monetary payment.

16.5 Interest
16.5.1 The basic principle
Whenever compensation is due, the question arises whether interest
should be paid and the appropriate rate, mode of calculation and starting
date. Interest is particularly important where the final resolution of a
dispute is delayed for any considerable time. Although Special Rappor-
teur Arangio-Ruiz had envisaged an entire article dedicated to the issue
of interest, as adopted the Draft Article dealing with compensation
stated only that ‘compensation . . . may include interest’:183 the Drafting
Committee considered that it would be too difficult to arrive at specific
rules on interest and that a general principle couched in quite
flexible terms was preferable.184 The Draft Articles certainly did not
stint in that regard: they stated no ‘general principle’ of any kind, but
merely referred to a possibility.185 On second reading a separate
article on interest was endorsed for the ARSIWA without difficulty.
This is appropriate given that, though an aspect of compensation,

180
ARSIWA Commentary, Art. 37, §8.
181
Arangio-Ruiz, Second Report, ILC Ybk 1989/II(1), 37. Another example given is the
demand by the Conference of Ambassadors against Greece in the Tellini affair in 1923:
ibid., 37–8.
182 183
Ibid., 37. Draft Articles, Art. 44(2).
184
ILC Ybk 1992/I, 220 (Chairman of the Drafting Committee).
185
Crawford, Third Report, 57.
532 cessation and reparation

interest is treated as a separate element of damages in practice.186

Article 38 of the ARSIWA states:
(1) Interest on any principal sum payable 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 on which the principal sum should have been
paid until the date the obligation to pay is fulfilled.

The commentary emphasizes, as stated in Article 38(1), that interest

may be payable on compensation but only where this is necessary to
ensure full reparation. It states:
Interest is not an autonomous form of reparation, nor is it a necessary part of
compensation in every case . . . Nevertheless, an award of interest may be
required in some cases in order to provide full reparation for the injury caused
by an internationally wrongful act . . .187

On the issue of interest, the Eritrea–Ethiopia Claims Commissions

stated:
[T]he Commission has decided, in the exceptional circumstances presented by
these claims, not to calculate and award interest on the amounts awarded to
either Party.
The Commission has particularly taken into account the fact that the Parties’
claims, and the amounts awarded in respect of those claims, are broadly similar.
Accordingly, this is a rare case in which interest on the compensation awarded
would not materially alter the Parties’ economic positions following the timely
payment by each of the amounts due the other. Further, the amounts awarded
in many cases reflect estimates and approximations, not precise calculations
resting upon clear evidence. Like some other commissions, the Commission
believes that this element of approximation reinforces the decision against
awarding interest. Finally, the Commission notes that these proceedings have
taken several years, reflecting the magnitude and complexity of the task. Both
Parties have been diligent, and the period required does not reflect a lack of
cooperation on the part of either. Accordingly, there is no need for pre-award
interest to protect either Party from prejudice resulting from dilatory conduct by
the other.188

The specific reason why an award of interest is necessary to ensure full

reparation will depend on the case. The most commonly cited reason for
awarding interest is to compensate the claimant for loss of the ability to

186 187
Ibid., 60. ARSIWA Commentary, Art. 38, §1.
188
Final Award: Eritrea’s Damages Claims, (2009) 26 RIAA 505, 531; Final Award: Ethiopia’s
Damages Claims, (2009) 26 RIAA 631, 658–9.
 remedies 533

benefit from use of the principal sum.189 Other reasons are also
evident, such as the need to protect against diminution in the value of
the principal sum due to inflation,190 and as a measure of lost
profits.191 Some orders relating to interest are properly seen as forming
part of the damages awarded by way of compensation, for example
where damages are awarded for interest costs actually incurred by a
claimant.192

16.5.2 Pre-judgment and post-judgment interest distinguished

It is necessary to distinguish between pre-judgment (compensatory)
interest and post-judgment (moratory) interest. Pre-judgment interest
is awarded in relation to damage valued as at a date before the date of
judgment (though it may run until a date after the date of judgment).
Post-judgment interest may be payable if there is a delay in the payment
of the sum awarded in the judgment.193 Article 38 only deals with pre-
judgment interest;194 post-judgment interest is a matter for the proced-
ure of the relevant court or tribunal.
The better interpretation of the jurisprudence of the Permanent Court
and the International Court is that they have never awarded pre-
judgment interest.195 In the Wimbledon case, the Permanent Court
awarded simple interest at a rate of 6 per cent. The Court stated:
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.196

189
Lauterpacht and Nevill, in Crawford, Pellet and Olleson (2010) 613, 616; Nevill, (2007) 78
BYIL 255, 278–9.
190
Nevill (2007), 279.
191
Lauterpacht and Nevill (2010), 616. Where compensation is awarded for loss of profits,
an award of interest over the same period would amount to double recovery. However,
an award of interest may be appropriate for interest that would have been earned on
the profits themselves: ARSIWA Commentary, Art. 36, §33; ARSIWA Commentary, Art.
38, §11.
192 193
Lauterpacht and Nevill (2010), 616. Ibid., 617.
194
ARSIWA Commentary, Art. 38, §12.
195
The question of interest was not raised in the Corfu Channel, Compensation, ICJ Rep.
1949 p. 244.
196
Wimbledon, (1923) PCIJ Ser. A No. 1, 32.
534 cessation and reparation

It is clear that the Court was only dealing with interest that would be due
should Germany delay in paying the sum awarded. In Diallo, the Inter-
national Court determined that simple interest of 6 per cent was again
payable and specifically referred to this award as being ‘post-judgment
interest’.197 The Court did not address the issue of pre-judgment interest,
notwithstanding that the events in question had occurred some fourteen
years previously and that Guinea had sought interest to ‘take account of
the effects of any currency depreciation that has occurred since the
injurious act was committed’.198

16.5.3 The period for which interest is payable

The commentary explains:
The actual calculation of interest on any principal sum payable by way of
reparation raises a complex of issues concerning the starting date (date of breach,
date on which payment should have been made, date of claim or demand) . . .
There is no uniform approach, internationally . . . [T]he present unsettled state of
practice makes a general provision on the calculation of interest useful. Accord-
ingly article 38 indicates that the date from which interest is to be calculated is
the date when the principal sum should have been paid.199

It has been said that the formulation ‘date when the principal sum
should have been paid’ is ‘wide enough to embrace date of breach or loss
or date of demand’.200 Although it is true that this formulation has a
certain degree of flexibility, in theory the decisive date is the date on
which damage occurs, which could be later than the date of breach.201 It
is only once damage occurs that the obligation to pay compensation
arises and, logically, the obligation to pay interest on that compensation.
An injured state is only entitled to interest on such compensation if it
is ‘quantified as at an earlier date than the date of the settlement of, or
judgment or award concerning, the claim’.202 This is a departure from
the position the Permanent Court took in Wimbledon. In that case, despite
the fact that the damages in question were valued as at the date of
loss,203 the Court determined that interest was only payable from the

197
Diallo, Compensation, ICJ, 19 June 2012, §56.
198
Diallo, Memorial of the Republic of Guinea: Compensation, 6 December 2011, §§14–15,
69. See the DRC’s reply at Diallo, Counter-Memorial of the Democratic Republic of the
Congo: Compensation, 21 February 2012, Section IV.
199 200
ARSIWA Commentary, Art. 38, §10. Nevill (2007), 262.
201
ILC Ybk 2000/I, 206 (Crawford).
202
ARSIWA Commentary, Art. 38, §2 (emphasis added).
203
Wimbledon, (1923) PCIJ Ser. A No. 1, 31.
 remedies 535

date of judgment as ‘the moment when the amount of the sum due has
been fixed and the obligation to pay has been established’.204 The Wim-
bledon position was not principled. It would have permitted a responsible
state to avoid paying interest in any case in which it disputed the
existence of the obligation to pay.205 It is now only moral damages that
are considered not to be payable until the date of judgment.206 For
example, while the International Tribunal for the Law of the Sea in M/V
Saiga (No. 2) awarded pre-judgment interest in relation to the material
losses suffered by Saint Vincent and the Grenadines, it awarded only
post-judgment interest in respect of the moral damage to its nationals.207
As Article 38 states, interest runs until the date on which the obliga-
tion to pay is fulfilled. This approach to pre-judgment interest can be
seen in the practice of the Iran–US Claims Tribunal and in decisions of
investment tribunals.208 In PSEG v. Turkey, decided in 2007, the tribunal
held that ‘interest shall run on the total amount awarded, from August 1,
1998 . . . until payment of the Award. There is accordingly no need for
a separate or different determination of the post Award interest.’209
Tribunals have also awarded pre-judgment interest until the date of
judgment only (and post-judgment interest thereafter on the total sum
awarded).210 This deviation from the position stated in Article 38 is
explicable based on the procedural rules of the relevant tribunals. For
example, the European Court of Human Rights has an explicit power to

204 205
Ibid., 32. Nevill (2007), 285.
206
Ibid., 285. See also Lauterpacht and Nevill (2010), 617.
207
M/V Saiga (No. 2), (1999) 120 ILR 143, 200–1. If a court or tribunal did quantify moral
damages as at a date earlier than that of judgment, then pre-judgment interest should
equally be due. As stated by Brownlie, ‘[i]t is sometimes stated that in the case of
personal injuries, death, and mistreatment of various kinds, interest should not be
awarded in excess of the more or less arbitrary pecuniary satisfaction awarded in such
cases. This formulation of the position is difficult to follow. If in principle true
compensation includes interest on the compensation (as due at the time of injury or
death), the fact that the sum awarded is in some sense “unliquidated” or arbitrary is not
incompatible with the payment of interest on the compensation. The fact that the
“lump sum” awarded includes interest, notionally so to speak, does not contradict the
principle that compensation should include interest on the damages as at the time of
injury’: Brownlie (1983), 228.
208
Nevill (2007), 333.
209
PSEG v. Turkey, ICSID Case ARB/02/5, 19 January 2007, §351. See also, for example, CME v.
Czech Republic, Final Award on Damages, (2003) 9 ICSID Reports 264, 411.
210
Nevill (2007), 333. In some cases the post-judgment interest rate is the same as the pre-
judgment interest rate, such that the obligation to pay pre-judgment interest is
effectively subsumed within the obligation to pay post-judgment interest. See for
example, Siemens v. Argentina, (2007) 14 ICSID Reports 518, 602–3.
536 cessation and reparation

award post-judgment interest,211 and it is the practice of the Court to

award post-judgment interest on the total sum awarded, with pre-
judgment interest only being awarded to the date of judgment.212

16.5.4 The rate of interest and mode of calculation

Article 38 merely states that the interest rate and mode of calculation
shall be set so as to ‘ensure full reparation’. The appropriate interest rate
in a particular case will depend on a range of factors, such as the nature
of the claim, the facts of the case, any contractually agreed rate of
interest and prevailing commercial rates.
According to Lauterpacht and Nevill, in the nineteenth century and for
most of the twentieth century, rates awarded generally varied between 4
per cent and 8 per cent. For the most part tribunals did not explain their
selection of rate, but where they did prevailing rates were considered
persuasive.213 In Wimbledon and Diallo the Permanent Court and the
International Court, respectively, awarded post-judgment interest at a
rate of 6 per cent simple interest, with reference to prevailing interest
rates.214 The International Tribunal for the Law of the Sea in the M/V
Saiga awarded pre-judgment interest at the rate of 6 per cent simple
interest on the various heads of compensation awarded, except for the
head related to oil discharged from the Saiga while it was detained, for
which a rate of 8 per cent was awarded.215 The Tribunal only briefly
explained that
the Tribunal has set an interest rate of 6% in respect of the award of compen-
sation. In determining this rate, account has been taken, inter alia, of commercial
conditions prevailing in the countries where the expenses were incurred or the
principal operations of the party being compensated are located. A higher rate of
8% is adopted in respect of the value of the gas oil to include loss of profit.216

European Union courts used a rate of ‘in general 6% per annum in the
judgments in the period up to the mid–late 1980s, then 8% in judgments

211
European Court of Human Rights, Rules of Court, Rule 75(3). The current version of the
Rules is available from www.echr.coe.int/ECHR/Homepage_EN.
212 213
Nevill (2007), 333–4. Lauterpacht and Nevill (2010), 621.
214
Wimbledon, (1923) PCIJ Ser. A No. 1, 32; Diallo, Compensation, ICJ, 19 June 2012, §56. In
Diallo, the ICJ stated that ‘post-judgment interest on the principle sum due will accrue
as from 1 September 2012 at an annual rate of 6 per cent. This rate has been fixed
taking into account the prevailing interest rates on the international market and the
importance of prompt compliance’: ibid., §56.
215
M/V Saiga (No. 2), (1999) 120 ILR 143, 200–1.
216
M/V Saiga (No. 2), (1999) 120 ILR 143, 200.
 remedies 537

up to the introduction of the euro into financial markets on 1 January

1999’.217 It was even suggested in 1972 that a rate of 6 per cent simple
interest be adopted as a general rule when the law of state responsibility
was codified.218
Writing in 1943, Whiteman stated that there ‘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’.219 This
statement was relied on, for example, by the Iran–US Claims Tribunal,220
which consistently denied claims for compound interest, including
where a claimant had suffered losses through compound interest
charges.221 The commentary took the position that although the award
of compound interest had been supported by some tribunals, the ‘gen-
eral view of courts and tribunals has been against the award of com-
pound interest’.222 However, the ARSIWA left the issue open by
providing that the ‘mode of calculation’ of interest should be set so as
to ensure full reparation.
Since 2001, compound interest has been awarded increasingly, par-
ticularly in investment arbitrations.223 According to Lauterpacht and
Nevill writing in 2010, there is now an ‘identifiable trend towards

217
Nevill (2007), 291.
218
Subilia, L’allocation d’intérêts dans la jurisprudence internationale (1972), 160–3, cited in
Arangio-Ruiz, Second Report, ILC Ybk 1989/II(1), 29 fn. 228. It was suggested that this
general rule be accompanied by the possibility that each state be given the opportunity
to prove that the damage was greater and hence obtain a higher rate: ibid.
219
Whiteman, 3 (1937–43), 1997.
220
For example, RJ Reynolds Tobacco Company v. Iran, (1984) 7 Iran–US CTR 181, 191.
221 222
Crawford, Third Report, 59. ARSIWA Commentary, Art. 38, §8.
223
In addition to the cases listed at Nevill (2007), 311 fns. 323–4, compound interest has
since been awarded in BG Group v. Argentina, 24 December 2007, §467(5); Continental
Casualty v. Argentina, ICSID Case ARB/03/9, 5 September 2008, §§313–15; Vivendi Universal
v. Argentina, ICSID Case ARB/97/3, Second Award, 20 August 2007, §11.1(vi); Rumeli
Telekom v. Kazakhstan, ICSID Case ARB/05/16, 29 July 2008, §818; National Grid v.
Argentina, 3 November 2008, §294; Siag v. Egypt, ICSID Case ARB/05/15, 1 June 2009,
§631(VI)(a); Kardassopoulos v. Georgia, ICSID Case ARB/05/18, 3 March 2010, §693(g);
Chevron v. Ecuador, PCA, Partial Award on the Merits, 30 March 2010, §555; Funnekotter v.
Zimbabwe, ICSID Case ARB/05/6, 22 April 2009, §148(3); Sistem Mühendislik v. Kyrgyz
Republic, ICSID Case ARB(AF)/06/1, 9 September 2009, §194, 196; Alpha Projektholding v.
Ukraine, ICSID Case ARB/07/16, 8 November 2010, §514; Bau v. Thailand, 1 July 2009,
§16.1; Gemplus v. Mexico, ICSID Case ARB(AF)/04/3, 16 June 2010, §16.27; Impregilo v.
Argentina, ICSID Case ARB/07/17, 21 June 2011, §386(E); Railroad Development v.
Guatemala, ICSID Case ARB/07/23, 29 June 2012, §283(4); Unglaube v. Costa Rica, ICSID
Case ARB/08/1, 16 May 2012, §325; EDF v. Argentina, ICSID Case ARB/03/23, 11 June 2012,
§III; Renta 4 v. Russia, SCC Case 24/2007, 20 July 2012, §226; Swisslion DOO Skopje v.
Macedonia, ICSID Case ARB/09/16, 6 July 2012, §359; all available at www.italaw.com.
538 cessation and reparation

acknowledging that the objective of providing a deprived party with a

sum approaching the full reparation required by law necessarily
involves . . . compounding as the best approximation of the loss suffered
by the deprived party’.224 This possibly states the point too generally. As
Lauterpacht and Nevill acknowledge at another point, ‘[s]ince the early
2000s the balance of investment treaty tribunal practice has shifted
towards awarding compound interest where requested by the claimant,
but not invariably. There are very few examples of compound interest
awards in other international judicial practice.’225
There seems no reason in principle why the awarding of compound
interest should be limited to the context of investment treaty tribunal
practice.226 Awards of compound interest are presumably more frequent
in investment treaty tribunal practice due to the high occurrence of
claims concerning the deprivation of commercial property which would
have produced income that would have accumulated, or offset money
borrowed, at a compound interest rate – clear cases in which compound
interest is necessary to ensure full reparation.227

224 225
Lauterpacht and Nevill (2010), 621. Ibid., 620.
226
See also Nevill (2007), 317–29.
227
As the Tribunal stated in Kardassopoulos v. Georgia, ‘[w]hen the question is, what amount
has the Claimant lost by being wrongly denied payment of a sum on a certain date in
the past, in circumstances where the Claimant could have invested an equivalent sum,
or could only have borrowed an equivalent sum, on terms of compound interest, the
award of compound interest is appropriate’: Kardassopoulos v. Georgia, ICSID Case
ARB/05/18, 3 March 2010, §664.
Part VI
The implementation of responsibility
17 The claims process

17.1 Entitlement to claim

Part III of ARSIWA deals with the mise-en-oeuvre of state responsibility, its
implementation: in other words, what states faced with a breach of an
international obligation by another state or states may do about it.1
These articles on implementation of responsibility cover the entitlement
of other states to invoke the international responsibility of the respon-
sible state, and certain modalities of such invocation.2 The matter should
be approached in the awareness that although reflection on the imple-
mentation of international responsibility can provide an overview of the
relevant questions, it gives only uncertain and equivocal answers as to
how international law can respond.
Chapter I of Part III, the most important addition to the Articles in the
transition from first to second reading, is concerned with the invocation of
the responsibility of a state. Although not defined in ARSIWA, in this
context ‘invocation of responsibility’ refers to a formal process of claim
against a state or states.3 It means that the state invoking responsibility
had the right to expect the responsible state to behave in a certain manner,
and that the requisite conditions for making a claim regarding its alleged
failure to do so are satisfied.4 It does not affect informal diplomatic
exchanges between states for the purpose of raising concerns and resolving
conflicts.5 Nor is ARSIWA concerned with the implementation of any
international responsibility that may arise on the part of non-state actors
such as international organizations, corporations or individuals.

1 2
ARSIWA Commentary, Pt III. Ibid., Pt III, Ch. I, §1.
3
ARSIWA Commentary, Art. 42, §2.
4
Gaja, in Crawford, Pellet and Olleson (2010) 941, 941.
5
See ARSIWA Commentary, Art. 42, §2.

541
542 the implementation of responsibility

This chapter examines the entitlement to claim, the process of claim,

and instances when a potential claimant may lose the right to invoke
responsibility. The related issue of countermeasures, covered in ARSIWA
Part III, Chapter II, is addressed in Chapter 21.
The first question is whether the intending claimant has standing to
invoke the responsibility of the responsible state or states. The trad-
itional theory was that only states whose subjective rights had been
violated could invoke responsibility;6 as the International Court put it
in 1970, ‘only the party to whom an international obligation is due can
bring a claim in respect of its breach’.7 As finally adopted, ARSIWA
makes a clear distinction between injured states (Article 42) and states
other than injured states (Article 48) for the purposes of establishing
entitlement to claim.8 Issues can also arise over whether other injured
parties or other entities may have standing to bring a claim.

17.1.1 The injured state

The notion of the ‘injured state’ is central to the question of entitle-
ment to claim.9 An injured state as defined has the right to resort to
all the means of redress contemplated in ARSIWA, both judicial and
extra-judicial.10 The concept was not included in the first-reading text
of Part I, but frequent references to it in the commentary indicated
that the ILC and governments recognized its importance from an early
stage in the drafting process.11 Identifying the injured state was seen
as ‘vital in the allocation of certain privileges [and] to legitimizing
subsequent acts which would otherwise be wrongful’; it was seen
as perhaps the most significant aspect of the ILC’s work on state
responsibility.12
The matter was the subject of extensive debate within the ILC13 before
a definition was eventually proposed by Special Rapporteur Riphagen in
6
Sachariew, (1988) 35 NILR 273, 274.
7
Reparation for Injuries Suffered in the Service of the United Nations, ICJ Rep. 1949 p. 174, 181–2;
Barcelona Traction, Light & Power Company, Limited (Belgium v. Spain), Second Phase, ICJ Rep.
1970 p. 3, 32.
8 9
Cf. Gaja (2010) 941, 941, 957. For further discussion see Chapter 3. See ibid., 941.
10 11
ARSIWA Commentary, Art. 42, §3. See ILC Ybk 1973/II, 174–6.
12
Comments of Singapore, UN Doc. A/CN.4/488/Add.3, 2.
13
See Riphagen, Third Report, ILC Ybk 1982/II(1), 36–9; Riphagen, Fourth Report, ILC
Ybk 1983/II(1), esp. 13–15 (where a distinction is drawn between the state having an
interest affected and the state ‘party to the breach’) and 21–3 (where the general
distinctions and the rights an injured state is entitled to invoke in the different
situations are listed). For the debate, see ILC Ybk 1982/I, 230–6 (1736th meeting), and ILC
Ybk 1983/I, 103–4, 127–38 (1772nd, 1777th and 1780th meetings).
 the claims process 543

1984.14 The definition identified the injured state or states by reference

to four distinct categories of internationally wrongful act, according to
the underlying right infringed or obligation breached. Following some
changes, Draft Article 5 was provisionally adopted by the ILC in 1985,15
forming the basis for Draft Article 40 adopted on first reading in 1996:
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 instru-
ment 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 fundamental freedoms;

14
ILC Ybk 1984/II(2), 100–2; see further ILC Ybk 1985/II(1), 5–8, for his renewed proposition
in the form of Draft Articles, Pt II, Art. 5 together with commentary.
15
For the amended text and commentary, see ILC Ybk 1985/II(2), 25–7. One major change
which attracted some criticism was to frame the provision in terms of rights infringed,
rather than obligations breached. See ILC Ybk 1985/I, 311 (Sinclair).
544 the implementation of responsibility

(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 consti-

tutes an international crime, all other States.

Draft Article 40 played a pivotal role as a hinge between Part I, framed

in terms of the internationally wrongful act of a state, and Part II, framed
in terms of the rights and entitlements of the injured state. Unfortu-
nately, it was seriously flawed, and governments expressed considerable
concern about numerous aspects of the drafting when it was reviewed
for second reading.16 Although not expressed to be exhaustive, it was
long and unwieldy. Its treatment of multilateral obligations was particu-
larly problematic, as it appeared to reduce them all to an artificial
bilateral right/obligation relationship. Further, the definition made no
distinction between states which were the primary victims of an injury,
and states which had a wider or collective interest in performance of the
obligation but which were not themselves directly affected by the wrong-
ful act – it aggregated what should have been disaggregated. As a result,
a breach of an obligation owed to the international community as a
whole, or the commission of an international crime,17 would result in
all other states being classified as individually ‘injured’ and trigger their
equal entitlement to invoke responsibility. The consequences of such
broad classifications were not adequately addressed in later provisions
of the Draft Articles.
Again, there was a range of views on what was required in order to
remedy the flaws in Draft Article 40, although there was no doubt that
reference to the meaning of ‘injured state’ should be kept.18 In the end,
Part II of the Draft Articles adopted on first reading was substantially
restructured, being divided into two new parts dealing with the content
of state responsibility and the implementation of responsibility respect-
ively. Draft Article 40 was replaced by two articles that separated

16
See e.g. ILC Ybk 1998/II(1), 138–44. For further analysis of Draft Articles, Art. 40 see
Crawford, Third Report, 29–32.
17
International crimes of state were the subject of Draft Articles, Art. 19, but this provision
and the concept did not survive the second reading. See Chapter 3.
18
See e.g. Topical summary of the discussion held in the Sixth Committee of the General
Assembly during its fifty-third session prepared by the Secretariat, UN Doc. A/CN.4/496,
19 for a summary of views.
 the claims process 545

invocation of responsibility by injured states from invocation by other

states.19 In its final adopted form, ARSIWA Article 42 sets out three
scenarios in which a state may be classified as entitled to invoke respon-
sibility as an ‘injured’ state:
Article 42
Invocation of responsibility by an injured State
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 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 which the obligation is owed with respect to the
further performance of the obligation.
There are clear parallels between the structure of Article 42 and that of
Article 60 of the Vienna Convention on the Law of Treaties20 (VCLT) on
the termination or suspension of a treaty as a consequence of its breach,
although the scope and purpose of the two provisions are not identical.21
The term ‘injured’ itself and the related concepts of ‘injury’ and
‘damage’ are not defined in the ARSIWA, as this is the domain of
primary rules of international law rather than the secondary rules of
responsibility. Further, the ARSIWA recognize that in some cases more
than one state might satisfy the definition in Article 42 in connection
with the same wrongful act. Article 46 makes it clear that when there is
a plurality of injured states, each will have an independent entitlement
to invoke responsibility.22 There is no obligation of co-ordination or co-
operation between multiple injured states.
In most cases it should be relatively straightforward to determine
whether performance of an obligation was owed to the state individually
in terms of Article 42(a).23 The obvious example, mirrored in Article
60(1) VCLT, would be an obligation owed under a classic bilateral treaty,
but it is by no means the only example. Another might be a unilateral
commitment made by one state to another state. Other cases might
involve multilateral treaties or general rules under which certain

19
See Crawford, Fourth Report, 8, 10–11 on the new Draft Articles, Arts. 43 and 49.
20 21
22 May 1969, 1155 UNTS 331. See ARSIWA Commentary, Art. 42, §§4–5.
22
See ARSIWA Commentary, Art. 46; Huesa Vinaixa (2010). See further Chapter 20.
23
See Riphagen, Fourth Report, ILC Ybk 1983/II(1), 21.
546 the implementation of responsibility

obligations become particularized depending on the facts of the

situation – such as obligations of a receiving state towards a sending
state in the context of diplomatic relations, or individual obligations as
between riparian states under a regime for the use of an international
river.24 In short, ‘individually’ does not mean ‘exclusively’. It simply
means that in the circumstances, performance of the particular obliga-
tion must have been owed to that specific state, regardless of whether it
may have also been owed to other states either simultaneously or under
different circumstances.25 The recognition that multilateral treaties may
create bundles of what are essentially bilateral relations distinguishes
the scope of Article 42(a) ARSIWA from that of Article 60(1) VCLT, the
latter being limited to bilateral treaties alone.
Article 42(b) then deals expressly with obligations owed to a group of
states or the international community as a whole. The provision differ-
entiates two scenarios in which a state party to such obligations may be
described as ‘injured’ for the purposes of invoking responsibility, as
distinct from any entitlement to claim that all states parties to such
obligations might have under Article 48.
First, Article 42(b)(i) concerns so-called ‘specially affected states’,
reflecting Article 60(2)(b) VCLT. It may be that one particular state is
the primary victim of a wrongful act, or the primary obligee of an
obligation owed to a wider group of states. For example, the obligation
not to use force in interstate relations enshrined in Article 2(4) of the UN
Charter applies to the international community as a whole, but a specific
act of aggression will always be perpetrated against a specific state (or
states), and will have its most significant adverse impact on the target
state. In such cases that specially affected state should have access to the
full range of remedies open to an ‘injured state’, whether or not it may
be said to have had an individual right to the performance of the obliga-
tion under Article 42(a).26 But not every obligation in the collective
interest will have a primary victim – for example it will be difficult to
prove that any one state suffered a special adverse impact from a third
state’s breach of an obligation not to release chlorofluorocarbons (CFCs)
into the atmosphere. Hence the need to differentiate between the rights
of specially affected states and those with a wider, more diffuse interest
in performance of the obligation.
24
For further examples and analysis see ARSIWA Commentary, Art. 42, §§6–10; Gaja
(2010) 941, 943–4.
25
See ARSIWA Commentary, Art. 42, §6.
26
See ARSIWA Commentary, Art. 42, §§11–12.
 the claims process 547

Second, Article 42(b)(ii) deals with what may be referred to as ‘integral

obligations’ – obligations that operate on an all-or-nothing basis.27 This
narrow but important category of obligations is analogous to those
recognized in Article 60(2)(c) VCLT.28 It refers to obligations of such a
character that a breach affects per se all other states to which the
obligation is owed. It is sometimes misunderstood as referring simply
to obligations in the general interest, such as human rights obligations,
but the concept is more nuanced than that: the category is limited to
obligations whose breach threatens the structure of the whole regime.29
It can be illustrated by reference to the obligations of states parties to the
1959 Antarctic Treaty to refrain from asserting new claims to territorial
sovereignty over Antarctica while the treaty is in force.30 All parties
clearly have an interest in the performance of this obligation, and their
own position would be affected by any change to the status quo.31 Other
examples could include disarmament treaties, or certain regimes for
the protection of the environment. While it is usually the case that
these interdependent obligations arise under multilateral treaties,
Article 42(b)(ii), like the rest of the ARSIWA, applies to all obligations
regardless of their origin or character.32 In this regard Article 42(b)(ii)
goes further than Article 60(2)(c) VCLT. The point is that conformity with
the obligations is required by all parties for the success of the regime,
and if one state breaches its obligations all other states must be individu-
ally entitled to respond, even if they may not have suffered any material
injury or especially adverse impact.
The prominence of Article 42 within Chapter I of Part III emphasizes
that the invocation of responsibility is primarily an entitlement of the
injured state. However, in Barcelona Traction the Court clearly distinguished
between the individual rights of states and the legal interests of several or
all other states not directly affected by the breach of an obligation,33

27
See e.g. Sachariew, (1988) 35 NILR 273; Crawford, (2006) 319 Hague Recueil 325, 439–41;
ARSIWA Commentary, Art. 42, §§13–15; Gaja (2010) 941, 944–6.
28
VCLT, Art. 60(2)(c) refers to a treaty which is of ‘such a character that 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’.
29
This is not the case with treaty obligations for the protection of the human person,
because a breach by one state does not entitle other states to suspend their own
obligations; see VCLT, Art. 60(5).
30
1 December 1959, 402 UNTS 71. Art. IV(2).
31
See ARSIWA Commentary, Art. 42, §14; Gaja, in Crawford, Pellet and Olleson (2010) 945.
32
See ARSIWA and Commentary, Art. 12.
33
Barcelona Traction, Second Phase, ICJ Rep. 1970 p. 3, 32–3.
548 the implementation of responsibility

suggesting that in some cases other states may also have an entitlement to
claim. Before moving on to consider the standing of states other than
injured states under ARSIWA Article 48, however, it is necessary to discuss
the position of other injured parties that are not covered by the definition
of ‘injured state’ in Article 42.

17.1.2 Other injured parties

There is no doubt that states may owe primary obligations to non-state
entities such as international organizations, corporations and individ-
uals. Such actors may be – and frequently are – directly and materially
affected by the internationally wrongful act of a state. This is implicitly
recognized by the ARSIWA; the articles are of broad application, and
Part I covers all international obligations of states.34 It does not exclude
obligations owed to non-state subjects from the definitions of ‘inter-
nationally wrongful act’ and ‘breach of an international obligation’.35
However, the question of who may invoke responsibility for a breach is
separate from establishing the occurrence of the breach in the first
place.36 When it comes to addressing the content of the international
responsibility of a state, there is an acknowledged discrepancy between
the scope of Part I and that of Part II. Part II does not deal with the
secondary rights and permissible responses of injured parties that are
not states. Article 33(2) limits the scope of the secondary obligations
arising as a consequence of an internationally wrongful act by a state:
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 inter-
national responsibility of a State, which may accrue directly to any
person or entity other than a State.

This provision was inserted in order to advert to the discrepancy in

scope between Parts I and II and to prevent any inferences from being
drawn about secondary obligations owed to non-state actors from the
provisions on secondary obligations owed to states. Correspondingly,

34
See e.g. ARSIWA Commentary, Art. 1, §5; Art. 28, §3.
35 36
See ARSIWA Arts. 2 and 12 respectively. See ARSIWA Commentary, Art. 2, §8.
 the claims process 549

the limitation in Article 33(1) and the saving clause in Article 33(2) apply
mutatis mutandis to the provisions on implementation in Part III.37
If the law of implementation of state responsibility by injured and
other states remains underdeveloped, then the law of implementation
by entities other than states is embryonic. It would not have been
appropriate for ARSIWA to address this terrain at such an early stage
in its development; nor do the articles deal with difficult questions
about the relationship between claims of responsibility asserted by
states and claims of the non-state victims arising from the same con-
duct. But ARSIWA’s silence on the implementation of responsibility by
non-states does not mean that such entities will never have standing to
claim against a state in response to its internationally wrongful act.
Rather, it will be the relevant primary obligations that will determine
whether or not a non-state party has any entitlement to claim in the
particular circumstances, for example by initiating a complaint under
human rights treaty monitoring mechanisms, or invoking bilateral
investment treaty provisions that permit recourse to arbitration.38
Article 33(2) recognizes the possibility that non-state entities may
have standing to invoke primary obligations directly against the
responsible state, and those rights are preserved even though Article
33(1) excludes secondary obligations owed to non-states from the scope
of the ARSIWA.39

17.1.3 Concerned states or other entities

When an internationally wrongful act arises from the breach of a
multilateral obligation, other states and entities besides those that have
been directly ‘injured’ may also wish to implement responsibility, not
only for themselves but in the collective interest. One of the flaws of
Draft Article 40 was that it equated the position of injured states with
the position of other states, not themselves victims, which have a legal
interest in compliance with the obligation because it is owed to them as
well. This problem was addressed in the final version of ARSIWA by
replacing Draft Article 40 with two complementary Articles, 42 and 48.
Article 48 gives effect to the Court’s dictum in Barcelona Traction,40
providing as follows:

37 38
ARSIWA Commentary, Pt II, Ch. I, §2; Art. 33, §4. Ibid., Art. 33, §4.
39
Ibid., Pt III, Ch. I, §1.
40
Barcelona Traction, Second Phase, ICJ Rep. 1970 p. 3, 32–3. See further Gaja, in Crawford,
Pellet and Olleson (2010) 957.
550 the implementation of responsibility

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 respon-
sibility 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 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.
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 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 responsi-
bility by a State entitled to do so under paragraph 1.

Once again, invocation of responsibility in this context entails some-

thing more than raising concerns in a diplomatic setting; third states
not directly affected by an internationally wrongful act might well
choose to take informal steps to remind the responsible state of its
obligations, but those interactions are not regulated by the ARSIWA.
Just as secondary obligations owed to injured non-state parties are
excluded from the scope of ARSIWA Parts II and III, so are secondary
obligations owed to non-state parties that have not themselves been
injured but who wish to invoke responsibility in a wider interest. Again,
the position of these parties is preserved by Article 33(2) and they will
have to rely on any primary obligations that provide them with an
entitlement to claim.
Depending on the circumstances, many or even all states could be
entitled to invoke responsibility in reliance on this provision, but there
is no obligation to act together or co-operate in making a claim.41
Paragraph 1 of Article 48 defines the categories of obligations whose

41
This is clear from the use of the words ‘any state’ in Art. 48(1) and (2); see ARSIWA
Commentary, Art. 48, §4. There is some suggestion that the lack of any need for a
collective or third-party decision as to when a breach has arisen could be dangerous, in
terms of the potential for vigilantism on the part of states, but this is balanced to some
extent by the limits to countermeasures under Art. 54: see Brown Weiss, (2002) 96 AJIL
798, 805.
 the claims process 551

breach gives states other than injured states the right to invoke responsi-
bility. The first category, in Article 48(1)(a), is sometimes referred to
under the rubric of obligations erga omnes partes. It encompasses obliga-
tions established between a group of states for some collective interest of
the group, and the state invoking responsibility must be a member of
that group.42 The limitation to a collective interest ‘of the group’ was
inserted to address states’ concerns over the potential breadth of the
term ‘collective interest’, although there is nothing to prevent groups of
states undertaking obligations for the benefit of a wider group or com-
munity.43 There is no requirement that the obligation be ‘expressly
stipulated’ to be in the collective interest as there was in Draft Article
40(2)(f). The category in Article 48(1)(b) reflects what the International
Court described as obligations erga omnes in the Barcelona Traction judg-
ment, but ARSIWA avoids using the Latin term itself and retains the
expression ‘the international community as a whole’.44 All states are by
definition members of this community and no further qualification is
necessary to establish standing.
Paragraph 2, in providing an exhaustive list of the categories of claim
that states may make under Article 48, highlights that the entitlement to
invoke responsibility under this provision is ancillary or secondary to the
entitlement of injured states under Article 42. A state invoking responsi-
bility under Article 48 has no right to claim reparation for itself. Rather,
its entitlement to claim is limited to seeking cessation and assurances
and guarantees of non-repetition, and seeking reparation in the interest
of the injured state or entity.45 Further, while the consent of an injured
state would preclude the wrongfulness of the breach under ARSIWA
Article 20, the consent of a third state with an interest in performance
would have no such effect in respect of an act of which another state was
the primary victim.
International law has been slow to recognize any concept of ‘public
interest standing’ as it is understood in municipal systems, and the
articulation of a form of this concept in Article 48 marks an important
step forward. Relations between states were traditionally seen as bilat-
eral, and even when states began concluding multilateral treaties in the

42
See ARSIWA Commentary, Art. 48, §§6–7.
43
Ibid.; Crawford, (2006) 319 Hague Recueil 325, 449–50.
44
ARSIWA Commentary, Art. 48, §§8–10. See Questions Relating to the Obligation to Prosecute
or Extradite (Belgium v. Senegal), 20 July 2012, §§68–9, and see also Vaurs-Chaumette, in
Crawford, Pellet and Olleson (2010) 1023.
45
See further Vaurs-Chaumette (2010), 1027.
552 the implementation of responsibility

second half of the eighteenth century, these arguably tended to create

bundles of bilateral obligations rather than truly multilateral obliga-
tions. The understanding was that in order to have standing to claim
against another state, the claimant state must have suffered a violation
of its own individual rights, and the system has not been well adapted to
cope with relationships that depart from the traditional synallagmatic
rights/duties model.
The case most in point is the 1966 decision of the International Court
in the South West Africa cases in which, on President Spender’s casting
vote, the Court denied Ethiopia and Liberia the ability to claim against
South Africa in the interest of the peoples of the mandated territory,
despite having upheld jurisdiction four years earlier.46 The Court effect-
ively adhered to a narrow bilateral conception of ‘injury’ as the default
rule, even for interpreting treaties protecting a wider public interest. The
landmark dictum in Barcelona Traction in 1970 can be interpreted as a
repudiation of that position by the Court, in response to the outcry that
ensued after Second South West Africa. A decision on the question of public
interest standing was not necessary in the circumstances of Barcelona
Traction, but by distinguishing between cases involving violations of
individual rights in the context of diplomatic protection and cases in
which the obligations breached were of an erga omnes character, the
Court paved the way for the development of Article 48.47
Like Article 53 VCLT on peremptory norms, Article 48 emerged not as
a codification of established practice, but to provide a basic framework
for the further development of the law. Suggestions that the provision
should be limited to cover serious breaches only (that is, breaches that by
virtue of their gravity put the collective interest at risk), or even just
serious breaches of peremptory norms as covered in ARSIWA Part II,
Chapter III,48 did not survive the drafting process.
Article 48 was expressly mentioned by the Seabed Disputes Chamber
of the International Tribunal for the Law of the Sea, to support the

46
See South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, ICJ Rep.
1966 p. 6; cf. South West Africa, Preliminary Objections, ICJ Rep. 1962 p. 319.
47
Since Barcelona Traction the Court has referred to obligations erga omnes in this sense in
several cases, e.g. East Timor (Portugal v. Australia), ICJ Rep. 1995 p. 90, 102; Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, ICJ Rep. 1996 p. 595, 616; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep. 2004
p. 136, 199–200; Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v.
Rwanda), Jurisdiction and Admissibility, ICJ Rep. 2006 p. 6, 31–2.
48
ILC Ybk 2001/II(1), 80.
 the claims process 553

argument that standing to claim compensation for damage to the

seabed, ocean floor and subsoil might be read into the International
Seabed Authority’s duty to act on behalf of mankind, pursuant to Article
137(2) of the United Nations Convention on the Law of the Sea.49 None-
theless, it is unlikely that the provision will be relied on frequently. Most
substantive multilateral issues are regulated by multilateral treaties
which contain their own (usually generous) provisions for invocation,
as for example under the WTO Agreements.50 But as a baseline rule,
Article 48 strikes an appropriate balance between the collective interest
in compliance with basic community values and the countervailing
interest in not encouraging the proliferation of disputes.

17.2 The process of claim

Once entitlement to claim is established, the next concern becomes the
process of claim itself. Responsibility arises automatically by operation
of law when a state commits an internationally wrongful act, but on a
practical level, an injured or otherwise interested state must respond if
it intends to invoke that responsibility and seek redress.51 Originally,
Part III of the Draft Articles as adopted on first reading provided for a
hierarchical system of dispute settlement. When a dispute ‘regarding
the interpretation or application of the present articles’ arose, the
parties were to enter into negotiations to settle it amicably, failing
which any party could initiate conciliation, failing which the parties
could resort to voluntary arbitration; but if one state had taken coun-
termeasures against another, the latter state was entitled to submit the
matter straight to arbitration.52 There were serious difficulties with this
regime, however.53 Not least of these was that incorporating a system
of binding dispute resolution relied on an implicit assumption that
the Draft Articles would form the precursor for a multilateral treaty
on state responsibility; instead, it was decided to keep them in the
form of a non-binding instrument pending further discussion in the

49
10 December 1982, 1833 UNTS 3. See Obligations of States Sponsoring Persons and Entities
with Respect to Activities in the Area, ITLOS Case No. 17, 1 February 2011, 53–4.
50
See EC – Bananas III, 25 September 1997, WT/DS27/AB/R, §135: ‘a Member has broad
discretion in deciding whether to bring a case against another Member under the DSU’.
51
ARSIWA Commentary, Art. 43, §2.
52
For an analysis of this provision, which would have privileged the responsible state, see
Chapter 3. On countermeasures generally, see further Chapter 21.
53
See generally Crawford, Fourth Report, 4–6.
554 the implementation of responsibility

General Assembly.54 Ultimately the idea of including any express provi-

sion for dispute settlement in the articles – whether compulsory or
optional – was discarded.
While the specific dispute settlement mechanism originally proposed
did not survive the second reading, the ARSIWA nonetheless retains
general relevance for certain aspects of the process of claim. In terms
of the formal requirements for invocation of responsibility, Article 43(1)
provides that an injured state which invokes the responsibility of
another state shall give notice of its claim to that state.55 The provisions
of Article 43 refer only to the injured state, as defined in Article 42, but
they are equally applicable to claims by other states relying on Article
48.56 In essence, ARSIWA sets out the minimum requirements for noti-
fication, so that the situation is brought to the attention of the respon-
sible state, giving it an opportunity to know the allegations against it and
take appropriate steps to cease the breach and provide redress. There is
no requirement that notice be given in writing. The provision does not
imply that the normal response to a breach would be to file a statement
of claim, when in reality quiet diplomacy may well be more effective in
many cases.57 Instead, the form and modalities of notification are left to
the states involved, and will largely be dictated by the particular circum-
stances of the breach and any primary obligations in respect of dispute
settlement.58
ARSIWA’s flexible approach is consistent with the position that the
International Court has taken in respect of notification of claims.59 In
Certain Phosphate Lands in Nauru, for example, the Court was prepared to
find that Australia was aware of Nauru’s claim as a result of certain
communications which fell short of formal diplomatic correspondence,
and in circumstances where there was a delay of fourteen years between

54
On the paradoxical ‘influence amid controversy’ of the articles, despite their adoption as
an ILC text rather than a multilateral treaty, see Caron (2002).
55
On the formal requirements see generally ARSIWA Commentary, Art. 43. See further
Peel, in Crawford, Pellet and Olleson (2010) 1029.
56
See Art. 48(3); ARSIWA Commentary, Art. 48, §14.
57
On diplomacy as a procedure for the peaceful settlement of disputes, see Waibel (2010).
58
For example, VCLT, Art. 65 provides a specific procedure of notification and subsequent
steps in case of invalidity, termination, withdrawal from or suspension of the operation
of a treaty. See Villiger (2009), 799–815; Corten and Klein (eds.), 1 The Vienna Convention on
the Law of Treaties: A Commentary (2011), 1483–508. For discussion of a range of specific
regimes of responsibility see essays by Marks and Azizi, Rivier, Costa, Gherari, Gomula,
Nègre, Douglas, Müller, Petrovic´ and Thouvenin in Crawford, Pellet and Olleson (2010)
725–875.
59
See further Peel (2010), 1030–1.
 the claims process 555

Australia making its position known and the first formal notification in
writing of Nauru’s response.60 While whether Australia did in fact have
notice was clearly important for the Court, it took a pragmatic approach
that emphasized substance over form. This must be correct as a matter
of principle.
Article 43(2) states that the injured state (or mutatis mutandis a state
claiming under Article 48) may specify the conduct required to cease a
continuing wrongful act and/or what form reparation should take. There
is no obligation on the claimant to do so, but it is normal that this would
be done, and it may help to facilitate resolution of the dispute. On the
other hand, any specification by the injured state would not be binding
on the responsible state. The injured state can only demand that the
responsible state comply with its obligations; it cannot define the legal
consequences of the wrongful act.61 Thus although Article 43(2)(b) rec-
ognizes the general right of an injured state to choose its preferred form
of reparation – for example, compensation instead of restitution62 – the
right is not framed as absolute.63 The choices of the injured state might
have consequences for other interested parties, particularly in circum-
stances where the breach is ongoing. In some cases agreement between
the two states concerned as to compensation or another form of repar-
ation would be insufficient to resolve the wider situation, for example
where third parties have an interest in continued performance of obliga-
tions incumbent on either the injured or responsible state.64 Finally,
where the state invoking responsibility is not an injured state but
another state asserting a collective interest in reliance on Article 48,
the choices of what it may claim will be limited by Article 48(2).65 In
practice, it has been very rare for states other than injured states to claim
performance of the obligation of reparation,66 and this aspect of Article
48(2) is probably to be regarded as progressive development.

60
Certain Phosphate Lands in Nauru (Nauru v. Australia), ICJ Rep. 1992 p. 240, 254–5; ARSIWA
Commentary, Art. 43, §4.
61
See ARSIWA Commentary, Art. 43, §5; Peel, in Crawford, Pellet and Olleson (2010) 1029,
1031–2.
62
See e.g. Factory at Chorzów, Jurisdiction, (1927) PCIJ Ser. A No. 9; Passage through the Great
Belt (Finland v. Denmark), Provisional Measures, ICJ Rep. 1991 p. 12 (which was resolved by
settlement: see Koskenniemi, (1992) 38 AFDI 905, 940).
63
On choice of the mode of reparation see further Peel (2010), 1032–3; Chapter 17.
64
ARSIWA Commentary, Art. 43, §6.
65
See the discussion of permissible responses in Crawford, Third Report, 36–7.
66
Gaja (2010) 957, 962.
556 the implementation of responsibility

A further element of the process of claim is the basic question of

admissibility. It is not the function of the ARSIWA to deal with the
jurisdiction of international courts and tribunals, or specific issues as
to the admissibility of cases brought before them. However, certain
matters that are treated as questions of jurisdiction or admissibility
before tribunals amount to fundamental conditions for invoking the
responsibility of a state. ARSIWA Article 44 addresses two such condi-
tions under the heading ‘Admissibility of claims’.
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.

It is clear from the language of this provision that Article 44 is only

relevant to admissibility where one of the rules in question is ‘applicable’
to the claim. Neither paragraph purports to lay down the specific content
or scope of the rules, or the exceptions to those rules.67 They will be
discussed in the context of diplomatic protection in Chapter 19.
Beyond these broad considerations, the ARSIWA does not directly govern
the process of claim in matters of state responsibility. This is in keeping
with the purpose of the ARSIWA, which is not to provide primary content
but rather to define the conditions for establishing the international
responsibility of states as a matter of secondary obligation, and for the
invocation of that responsibility by states. A variety of processes may be
applicable in any given case, depending on the choices of the parties
involved and the character of the relevant primary obligations.68 The
procedural details and requirements will be governed by those primary
obligations and will also depend on the forum chosen for resolution of the
dispute. For example, in the International Court the process of claim is
governed by the Statute and Rules.69 Where no specific dispute settlement

67
See ARSIWA Commentary, Art. 44.
68
For discussion of a range of specific regimes of responsibility see essays by Marks and
Azizi, Rivier, Costa, Gherari, Gomula, Nègre, Douglas, Müller, Petrovic´ and Thouvenin in
Crawford, Pellet and Olleson (2010), 725–875. For discussion of different procedures for
the peaceful settlement of disputes see essays by Waibel, Susani, Coulée and Cottereau in
ibid., 1085–1126.
69
See generally Rosenne, 3 The Law and Practice of the International Court, 1920–2005 (2006).
 the claims process 557

mechanism and procedure are stipulated by the treaty or other source of

obligations, claims under different voluntary mechanisms may be possible
in accordance with the principle of free choice of means stated in Article 33
of the UN Charter. Claims will proceed differently depending on whether
the claimant is an injured state or a state relying on a wider collective
interest, or indeed a non-state entity whose entitlement to claim is beyond
the scope of the ARSIWA. Where obligations to the community as a whole
are involved, this may also influence how the process develops: Judge
Weeramantry, in his separate opinion in Gabčı́kovo-Nagymaros, expressed
the view that the Court’s traditional adversarial inter partes procedures
might be inadequate for dealing with allegations of breaches involving
important obligations erga omnes, such as ‘momentous environmental
issues’ with consequences spreading beyond the immediate litigants.70

17.3 Loss of the right to invoke responsibility

Part II of the first reading draft of ARSIWA was framed in a manner
which assumed that not just the secondary relationship of responsibility
but all consequences of that legal relationship naturally flowed from the
commission of an internationally wrongful act. On this view, there was
no room for choice on the part of the states concerned, and counter-
measures would be as much a part of the secondary legal relation as
reparation. But that is not the case: the reality is that the subsequent
conduct of the states involved may have an important effect on the legal
consequences of a wrongful act, with implications for the claimant, the
responsible state and others. This conduct could include a choice as to
the preferred form of reparation, or it could lead to the loss of the right
to claim altogether. To take a simple example, in the case of breach of a
normal bilateral interstate obligation, it is open to the injured state in
effect to forgive the breach, or to waive the right to invoke its conse-
quences, or to elect to receive compensation rather than restitution, or to
focus only on cessation and future performance.
Article 45 ARSIWA recognizes that in certain circumstances an injured
or interested state71 with notice of a breach may lose its right to invoke
responsibility:
70
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7, 117–18 (Vice-President
Weeramantry).
71
Although the language of Art. 45 is limited to injured states, it applies mutatis mutandis to
states other than injured states pursuant to Art. 48(3); see ARSIWA Commentary, Art.
48, §14.
558 the implementation of responsibility

Article 45
Loss of the right to invoke responsibility
The responsibility of a state may not be invoked if:
(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.72

This is similar to the provisions on loss of the right to invoke a ground

for invalidating or terminating a treaty in the VCLT.73 The focus is on
conduct subsequent to the commission of the internationally wrongful
act that affects the right to claim, as distinct from circumstances that
prevent any right to claim from arising in the first place, the obvious
example of the latter being prior consent.74 Besides waiver and acquies-
cence, expressly mentioned in Article 45 ARSIWA, other questions of
particular relevance to the loss of the right to invoke responsibility are
lapse of time, adjudication and settlement, and the effects on related or
derivative claims. The relation between some of these different but
overlapping concepts and others (including, for example, estoppel and
extinctive prescription) remains uncertain.

17.3.1 Waiver and acquiescence

Article 45 ARSIWA distinguishes valid waiver from valid acquiescence in
the lapse of a claim. The determination of what constitutes validity in
such circumstances falls to the primary obligations in question.75
Waiver and acquiescence are concepts that directly affect the substance
of a claim, not just matters of procedure; if proved, the right to claim
ceases to exist.
Waiver amounts to ‘the voluntary renunciation of a right or claim’.76
It is a manifestation of consent – the injured state has waived the breach,
or its consequences in terms of responsibility, after the commission of
the internationally wrongful act.77 Waiver may take the form of a
unilateral act by a state, or it may arise during informal negotiations

72
For the background to this provision see ILC Ybk 2000/II(2), 45, 48; ILC Ybk 2000/I, 395
(Chairman of the Drafting Committee).
73
VCLT, Art. 45. On VCLT, Art. 45 see e.g. Villiger (2009), 572–9; Corten and Klein (2011),
1064–86.
74
For circumstances precluding wrongfulness see ARSIWA, Pt I, Ch. V. See further Tams
(2010), 1041.
75
Issues of coercion, error or misrepresentation of facts may be relevant; see ARSIWA
Commentary, Art. 45, §4.
76 77
Tams (2010), 1036. See ARSIWA Commentary, Art. 45, §2.
 the claims process 559

with the responsible state as part of a process of give and take; it may be
recorded in a ‘waiver clause’ within the framework of a treaty, or it may
be left as an informal arrangement. Where the waiver is not explicit, any
conduct or statement from which waiver is inferred must be clear and
unequivocal; any ambiguity is likely to be resolved in favour of the
claimant rather than the responsible state. A state may be taken to have
waived just part of its claim: for example, in the Russian Indemnity case,
Russia’s failure to mention interest or damages as part of its repeated
demands for repayment of a debt from Turkey precluded it from subse-
quently claiming additional sums once it had accepted repayment of the
principal sum.78
In Certain Phosphate Lands in Nauru, Australia alleged a ‘two-fold
waiver’ on the part of Nauru in respect of Nauru’s claim that Australia
was responsible for rehabilitation of phosphate lands on the island,
which were exploited during the time that Australia, New Zealand
and the United Kingdom were responsible for administration of the
territory. The first alleged waiver related to the period before Nauru’s
independence in 1968, the second to the period since. But neither
Nauru’s silence on the possibility of rehabilitation of the island at
the time of independence, nor the lapse of time afterwards before
Nauru reacted to Australia’s assertion that the matter of rehabilitation
would not be revisited, was deemed sufficient to amount to waiver
of Nauru’s claim.79 It appears that the threshold for inferring waiver
is high.
As for acquiescence, the provision emphasizes the conduct of the state
as the determinant of whether or not the claim has lapsed. Thus the
mere passage of time without a claim being resolved would not on its
own amount to acquiescence.80 The key is whether the state has failed to
assert its claim over a period of time by remaining passive in circum-
stances where some sort of action on its part would have been
expected.81 Article 45 leaves a court with considerable flexibility to
determine whether the right to claim has been extinguished.82 It may
be difficult to distinguish acquiescence from an implied waiver, and it is
probably unnecessary to do so.83
Another complex relationship is that between acquiescence and estop-
pel or ‘preclusion’, described by Canada in the Gulf of Maine case as ‘the
78
Russian Indemnity (Russia/Turkey), (1912) 11 RIAA 621.
79
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 247.
80 81
ARSIWA Commentary, Art. 45, §6. Tams (2010), 1042–4.
82 83
Brown Weiss (2002), 800. Tams (2010), 1044.
560 the implementation of responsibility

alter ego of acquiescence’.84 Canada argued that acquiescence amounted

to one state’s tacit acceptance of a legal position represented by another
state’s conduct or assertion of rights through knowledge of that position
and a failure to protest. The United States argued that the conditions for
estoppel were stricter than for acquiescence: the party invoking estoppel
must also show that it had relied on the other party’s statements or
conduct either to its own detriment or to the other’s advantage. The
chamber acknowledged that both concepts derive from fundamental
principles of equity and good faith, and noted that ‘according to one
view, preclusion is in fact the procedural aspect and estoppel the sub-
stantive aspect of the same principle’. Given that the same facts were
relevant to both acquiescence and estoppel in the case before it, except as
regards the existence of detriment, it found itself able to ‘take the two
concepts into consideration as different aspects of one and the same
institution’, and refrained from further debate as to the distinction
between them.85
It is arguable that waiver and acquiescence are broad enough in scope
to cover any circumstances giving rise to the subsequent loss of a right to
invoke responsibility. However, the specific issue of lapse of time, central
to Australia’s arguments in Certain Phosphate Lands in Nauru, deserves
closer examination.

17.3.2 Lapse of time

It was originally proposed that the provision on loss of the right to
invoke responsibility in ARSIWA should include specific mention of
lapse of time as one of the grounds for that loss. Lapse of time would
have precluded a claim where
[t]he claim is not notified to the responsible State within a reasonable time after
the injured State had notice of the injury, and the circumstances are such that
the responsible State could reasonably have believed that the claim would no
longer be pursued.86

This provision was not adopted: in Article 45, lapse of time is not
mentioned, still less ‘extinctive prescription’. But either circumstance
might be subsumed by waiver or acquiescence, depending on the facts.87
84
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/US), ICJ Rep. 1984
p. 246, 304.
85 86
Ibid., 305. See also Tams (2010), 1044–5. Crawford, Third Report, 77.
87
The ILC’s commentary discusses lapse of time as the main example in the context of
acquiescence under Art. 45(b): see ARSIWA Commentary, Art. 45, §§6–11. For a
 the claims process 561

As a general principle it has been accepted that delay might render a

claim inadmissible, but when it will do so is rather more controversial
and unsettled.88
Many of the judicial decisions on this question concern diplomatic
protection claims pursued some or even many years after the inci-
dents giving rise to them. As a first criterion, it is obviously accepted
that a considerable period of time must have elapsed before delay
could lead to the loss of a claimant’s right to invoke responsibility.
Occasionally, a specific time limit for bringing a claim will be pre-
scribed in a treaty, similar to the manner in which domestic limitation
periods may be imposed by statute; conversely, reliance on extinctive
prescription may be expressly excluded by agreement. However, these
special rules are unusual, particularly in the area of interstate com-
plaints. As a matter of general international law there is no agreed
time limit for bringing claims invoking state responsibility, and what
is reasonable will vary considerably depending on the circumstances
of each case.89 Outstanding claims may subsist for many years, indeed
decades.
This practice suggests that the question of delay in international law is
not merely a procedural matter of applying strict time limits, but
involves a balancing of all the circumstances. Indeed, passage of time
alone is insufficient to bar a claim. As such, the common analogy with
limitation periods prescribed under national law is misleading.90 Rather,
in the international context, the principle of extinctive prescription has
only operated to bar a claim when it is found that the claimant’s delay
caused actual prejudice or procedural unfairness to the respondent. That
is, the raison d’être of the principle is the avoidance of possible injustice to

discussion of the relationship between extinctive prescription, acquiescence and

estoppel, leading to the conclusion that the omission of extinctive prescription from the
wording of ARSIWA, Art. 45 was a useful clarification, see Tams (2010), 1047–8.
88
See generally Pintor, (1955) 87 Hague Recueil 387, 438–48; Ibrahim, (1997) 83 Va LR 647;
Tams (2010), 1045–8.
89
A large number of international decisions stress the absence of general rules, and in
particular of any specific limitation period measured in years. Rather the principle of
delay is a matter of appreciation having regard to the facts of the given case. For
example, in Phosphate Lands in Nauru, the International Court stated that ‘international
law does not lay down any specific time-limit in that regard. It is therefore for the Court
to determine in the light of the circumstances of each case whether the passage of time
renders an application inadmissible’: Phosphate Lands in Nauru, Preliminary Objections,
ICJ Rep. 1992, p. 240, 253–4. See further e.g. Gentini, (1903) 10 RIAA 551, 561; Ambatielos,
(1956) 23 ILR 306, 314–17.
90
Tams (2010), 1047.
562 the implementation of responsibility

the respondent state.91 Where no such harm or likely injustice can be

shown, it is unlikely that a claim would be held inadmissible merely by
reason of the passage of time.92
Factors including legitimate expectations and reliance are relevant to
the question of extinctive prescription, just as they are to waiver and
acquiescence. The approach to delay might also depend on whether the
claimant state is the ultimate bearer of the rights, or is claiming on
behalf of others. In the Cayuga Indians case, the tribunal held the claims
for violation of rights of the Cayuga Indians to be admissible, notwith-
standing considerable delays that were attributable to the British
government.93
In LaGrand, Germany’s claim was held to be admissible even though it
was filed just twenty-seven hours before the scheduled execution by the
United States of LaGrand, and some six years after the breach giving rise
to the claim. No doubt it was highly relevant that the case raised issues
connected with the right to life, and a stay of execution was indicated:94
however, when the case reached the merits stage, the Court implied that
Germany’s delay in claiming would have precluded any award of dam-
ages, had damages been claimed.95
In the context of direct state-to-state claims, the International Court
has taken a flexible approach to the question of lapse of time. In Certain
Phosphate Lands in Nauru, the Court recognized that
even in the absence of any applicable treaty provision, delay on the part of a
claimant State may render an application inadmissible. [The Court] notes, how-
ever, that international law does not lay down any specific time limit in that
regard. It is therefore for the Court to determine in the light of the circumstances
of each case whether the passage of time renders an application inadmissible.96

In that case, the Court rejected Australia’s argument that Nauru’s claims
were inadmissible by reason of the delay between notification of the claims
and their eventual prosecution through the commencement of proceedings.
91
Gentini, (1903) 10 RIAA 552, 558. See further Stevenson, (1903) 9 RIAA 385; Ottoman
Empire Lighthouses Concession (France/Greece), (1956) 12 RIAA 155, discussed in Tams (2010),
1047–8.
92
See e.g. Tagliaferro, (1903) 10 RIAA 593; Stevenson, (1903) 9 RIAA 385.
93
Cayuga Indians, (1926) 6 RIAA 189.
94
See LaGrand (Germany v. US), Provisional Measures, ICJ Rep. 1999 p. 9. In his separate
opinion President Schwebel described the case as ‘unprecedented’, and although he did
not dissent from the substance of the decision, he expressed strong reservations about
the procedures followed both by the applicant and the Court; ibid., 21–2 (President
Schwebel).
95 96
LaGrand, ICJ Rep. p. 466, 508. Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 253–4.
 the claims process 563

To summarize, a case will not be held inadmissible on grounds of delay

unless the respondent state has been clearly disadvantaged and tribunals
have engaged in a flexible weighing of relevant circumstances, including,
for example, the conduct of the respondent state and the importance of
the right involved. The decisive factor is not the length of elapsed time in
itself, but whether the respondent has suffered prejudice because it
could have reasonably expected that the claim would no longer be
pursued.97

17.3.3 Adjudication and settlement

Article 45 makes no express reference to adjudication or settlement as
grounds for the loss of a right to invoke responsibility. However, once a
claim has been adjudicated, the doctrine of res iudicata operates as a
procedural bar that would prevent a claimant from bringing a further
claim in relation to the same wrongful act.
As for settlement, it is clear that if an injured state accepts some form
of reparation in full and final satisfaction of its claim, it no longer has a
right to claim further reparation from the responsible state or states.
This may be a better explanation of the outcome of the Russian Indemnity
case, in which Russia’s acceptance of settlement of the principal sum was
treated as full and final, preventing it from pursuing the remainder of its
claim.98 For settlement to occur there must be action on the part of both
states involved, or at least unequivocal acquiescence by one in the action
of the other; unilateral action by one party is insufficient.

17.3.4 Effects on related or derivative claims

The rules on waiver and related concepts were developed to apply to
bilateral rather than multilateral situations. In circumstances involving
a plurality of states, the loss of a claimant’s right to invoke responsi-
bility, for whatever reason, may have an effect on related or derivative
claims. For example, in circumstances where there are continuing
obligations to a wider group of states, settlement between the two
states directly involved in the claim may be insufficient to resolve
matters fully.99
The starting point is the general principle that a waiver or settlement
by one state can only affect the position of that state. This is the notion of
97
ARSIWA Commentary, Art. 45, §11.
98
Russian Indemnity (Russia/Turkey), (1912) 11 RIAA 421, 446.
99
ARSIWA Commentary, Art. 43, §6.
564 the implementation of responsibility

disposability: the waiver must be made by the bearer of the right which
is being waived, and does not prevent other states from invoking respon-
sibility.100 However, an important distinction must be made between
individually injured or specially affected states whose entitlement to
claim is provided for in Article 42, and other states who assert a collect-
ive interest under Article 48. A valid waiver or settlement by an injured
state, or all the injured states where there are more than one, may
preclude states other than injured states from asserting claims for rep-
aration, since these could only be made in the interest of the injured
state which has lost its own right to invoke responsibility. On the other
hand, a waiver or settlement by an individual state relying on Article 48
would not have the same effect, as that state’s entitlement to claim is
secondary to the entitlement of the injured state.101
When considering the loss of a right to invoke responsibility in the
context of multilateral obligations, distinctions can be drawn between
situations in which the wrongful act does not injure another state
individually (for example when the victims of the breach are nationals
or the environment of the responsible state itself), and situations in
which there is a primary injured or specially affected state as well as
others with an interest in performance. Tams argues that, in the first
case, the claim would only be waived if all states with a right to claim
under Article 48 agreed to the waiver; the waiver by any one of them
could not extinguish the rights of the others. Conversely, in the second
scenario, owing to the acknowledged primacy of the interests of indi-
vidually injured or specially affected states, ‘a valid waiver by the indi-
vidually injured State would also extinguish all claims that “other
interested States” have under article 48’.102
This second assertion raises difficulties. Certainly the state that has
been injured or specially affected in its individual capacity may waive its
right to claim compensation, or may forgo any demands for cessation.
But it does not necessarily follow that such conduct on the part of the
primary victim should extinguish all the rights to claim of all other
states under Article 48. Tams comments that ‘article 48 stipulates that
“other interested States” may only invoke responsibility in the interest of
the direct victim’. But Article 48 only qualifies the rights of states other
than injured states in respect of Article 48(2)(b), which deals with repar-
ation. Claims under Article 48(2)(a) invoking a right to cessation and

100 101
Gaja (2010) 957, 963. ARSIWA Commentary, Art. 45, §1.
102
Tams (2010), 1041.
 the claims process 565

assurances and guarantees of non-repetition are not subject to any such

qualification; that is the point of the public interest standing that has
been developed in Article 48.
This is especially important when the wrongful act concerns a breach
of a peremptory norm, as the commentary to Article 45 makes clear:
Of particular significance in this respect is the question of consent given by an
injured State following a breach of an obligation arising from a peremptory norm
of general international law, especially one to which article 40 applies. Since such
a breach engages the interest of the international community as a whole, even
the consent or acquiescence of the injured State does not preclude that interest
from being expressed in order to ensure a settlement in conformity with inter-
national law.103

This reasoning accords with Article 26, which provides that none of
the circumstances precluding wrongfulness in Part I, Chapter V, which
include consent, can justify or excuse state conduct that violates peremp-
tory norms. The question of limits on freedom to waive in this context
can be analysed as a matter of disposability.
Another complicating factor arises when the breach affects the rights
of private persons. In diplomatic protection cases, the claimant state is
asserting its own rights vis-à-vis the respondent, and if it chooses to
waive the claim or reaches a settlement, it may leave the private injured
parties with no international remedy.104 On the other hand, waiver by a
private person would not bind the state.
Finally, it is clear that a waiver or settlement of the injured state’s
claim as against one responsible state does not absolve any other respon-
sible states from their own independent responsibility.105

103
ARSIWA Commentary, Art. 45, §4.
104
Rights of private persons to claim against states directly in their own right, however,
may not be waived by the state of nationality; see Tams (2010), 1039.
105
ARSIWA, Art. 47. See further Chapter 10.
18 Claims on behalf of others: diplomatic
and functional protection

18.1 Introduction
Besides invoking responsibility as an injured state in terms of ARSIWA
Article 42 or in reliance on the entitlement provided for in ARSIWA
Article 48, international law recognizes that in certain circumstances
states may also bring claims on behalf of natural and legal persons,
through the institution of diplomatic protection of citizens abroad.1
States have a right to require that other states respect international
minimum standards for the treatment of their nationals abroad. Diplo-
matic protection is the procedure by which a state may invoke another
state’s responsibility for injury to the person or property of such nation-
als in breach of those standards – the traditional rationale being that an
injury to a state’s national indirectly injures the state itself.
Functional protection, on the other hand, refers to the right of inter-
national organizations to bring claims against states for injury to their
agents. Although it is sometimes treated as analogous to the protection
of nationals, functional protection is fundamentally different in that its
purpose is to ensure the efficient functioning of the organization by
upholding the security of its agents and its own independence.2 As such

1
See generally Borchard (1916); García Amador, (1958) 94 Hague Recueil 365, 426–42;
Dugard, First Report, UN Doc. A/CN.4/506; First Report of the ILA Committee on
Diplomatic Protection of Persons and Property, (2000) 69 ILA Rep. Conf. 604; Second
Report of the ILA Committee on Diplomatic Protection of Persons and Property, (2002) 70
ILA Rep. Conf. 228; Final Report of the ILA Committee on Diplomatic Protection of
Persons and Property, (2006) 72 ILA Rep. Conf. 353; Crawford, (2006) 31 S. Af. YIL 19;
Amerasinghe (2008); Dugard (2010). Diplomatic protection is not to be confused with
consular action; see Amerasinghe (2008), 45–6.
2
García Amador (1958), 442–4; ADP Commentary, 23–4, §3; Amerasinghe (2008), 47–53;
Benlolo Carabot and Ubéda-Saillard (2010).

566
 diplomatic and functional protection 567

it is more closely related to states’ right to claim for injuries suffered by

their officials abroad than to diplomatic protection of private persons.3
This chapter examines the institution of diplomatic protection,
starting with its evolving character and role, and moving on to the two
fundamental requirements for its exercise: the nationality principle and
the exhaustion of local remedies rule. It also considers the relationship
between diplomatic protection and individual invocation of responsibil-
ity in different contexts, before briefly discussing the doctrine of func-
tional protection in international law.

18.2 Diplomatic protection: an overview

The ILC has had an important role to play in the development and
codification of the law of diplomatic protection.4 Originally, the ILC
included rules on diplomatic protection within the framework of the
state responsibility project.5 The first Special Rapporteur on State
Responsibility, García Amador, drafted various provisions dealing with
responsibility for injuries to aliens and their property.6 One of these, a
convoluted provision addressing the substance of the exhaustion of local
remedies rule, remained in the text adopted at first reading. In 1996,
however, the ILC decided that diplomatic protection was appropriate for
study as a separate topic. On second reading of the articles on state
responsibility the draft provision on local remedies was excised and a
saving clause inserted instead, in recognition that ARSIWA was not the
place for detailed discussion of the substantive rules of diplomatic pro-
tection,7 but that certain aspects of those rules were inextricably con-
nected to the implementation of state responsibility.8
Thus Article 44 ARSIWA, on the admissibility of claims, refers to the
rules of nationality and exhaustion of local remedies without elaborating
3
García Amador (1958), 442–3. See also Amerasinghe (2008), 46–7.
4
See especially the seven reports of Dugard, Special Rapporteur on Diplomatic Protection
(2001–6).
5
For the background to the ILC’s contribution see e.g. Crawford, (2006) 31 S. Af. YIL 19,
19–24; Amerasinghe (2008), 55–62.
6
See García Amador, Third Report, ILC Ybk 1958/II, 47, 55–67 (Arts. 15–23); see further
Müller (2010).
7
To focus on the substantive law of state responsibility in the field of diplomatic protection
was to give that area priority, as the study was concerned with secondary rules of
responsibility and not primary rules: Crawford, (2002) 96 AJIL 874, 877.
8
For the reasoning behind this change see Crawford, Second Report, 39–41. ARSIWA will
continue to be relevant to diplomatic protection cases insofar as they concern questions
of attribution, breach, reparation and other generally applicable provisions.
568 the implementation of responsibility

on their content.9 That content has now been supplied by the Draft
Articles on Diplomatic Protection (ADP) adopted by the ILC in 2006,
which set out the rules governing the circumstances in which diplomatic
protection may be exercised and the conditions that must be met before
it may be exercised.10 Some of the ADP involve a degree of progressive
development of the law.

18.2.1 The character and role of diplomatic protection

Diplomatic protection seeks to uphold international minimum stand-
ards for the treatment of aliens. As a general proposition there is no
obligation on a state to allow foreign nationals access to its territory, but
once it has done so and while those aliens remain within its territory or
jurisdiction, the host state is bound to comply with those standards.11 It
is international law that governs whether a violation has taken place,
with the primary rules on treatment of aliens covering a broad spectrum
of matters in connection with both personal injury and injury to prop-
erty.12 According to the usual rules of state responsibility, the breach of
such an obligation by the host state amounts to an internationally
wrongful act incurring the responsibility of that state. Diplomatic pro-
tection provides a means by which the sending state can implement that
responsibility and seek reparation for the injury.13
A working description of diplomatic protection as it is understood in
international law14 is provided in ADP Article 1:
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

9
ARSIWA treats compliance with the rules as a fundamental condition for the invocation
of responsibility, in circumstances in which they apply. See ARSIWA Commentary,
Art. 44. For the development of the provision see further Crawford, Third Report, 65–6.
10
ADP, 24, §2.
11
Barcelona Traction, Light & Power Company, Limited (Belgium v. Spain), Second Phase, ICJ Rep.
1970 p. 3, 32.
12
For discussion of the primary rules see e.g. Lillich, (1978) 161 Hague Recueil 329;
Amerasinghe (2008), 37–44; Brownlie’s Principles, Ch. 28.
13
On remedies in the context of diplomatic protection, see Amerasinghe (2008), 282–328.
14
Special Rapporteur Dugard emphasized that Article 1 did not purport to define
diplomatic protection, but was a ‘description of diplomatic protection as the term is
understood in the language of international law’; see Dugard, First Report, ILC Ybk 2000/
II(1), 217.
 diplomatic and functional protection 569

legal person that is a national of the former State with a view to the implemen-
tation of such responsibility.15

The first point about diplomatic protection is that it involves an

invocation of responsibility at interstate level. Its origins lie in the
Vattelian idea that an injury to a person amounts to an indirect injury
to that person’s state of nationality.16 The traditional view, formulated
by the Permanent Court in Mavrommatis, is that a diplomatic protection
claim amounts to an assertion of the state’s own right ‘to ensure, in the
person of its subjects, respect for the rules of international law’.17 Diplo-
matic protection was likewise described in Nottebohm as a measure ‘for
the defence of the rights of the State’.18
As international law has developed, Vattel’s idea has to some extent
been superseded by the understanding that a state invoking another
state’s responsibility for injury to its nationals effectively enforces the
rights of those persons on their behalf, rather than its own rights;19 as
the International Court put it in 1959, the claimant state has ‘adopted
the cause of its national’.20 Some have argued that diplomatic protection
has been rendered obsolete by the increase in mechanisms for private
persons to protect their own rights in certain fields of international law,
notably human rights and investment protection, and that the artificial
premise that the state is injured by an injury to its nationals should be
discarded.21
Special Rapporteur Dugard accepted that the idea on which the insti-
tution of diplomatic protection is based may no longer be coherent, but
he was ‘more concerned with the utility of the traditional view than its
soundness in logic’ and argued for its continued recognition as a valuable
and well-established instrument of customary international law.22
It is too early to suggest that the increase in private remedies under
international law has eliminated any continuing need for diplomatic
protection; in many cases diplomatic protection will be the only tool

15
The ICJ endorsed Draft Art. 1 as a statement of customary international law in Ahmadou
Sadio Diallo (Guinea v. DRC), Preliminary Objections, ICJ, 24 May 2007, §39.
16
Vattel, Le Droit des gens (1758), Bk II, Ch. VI (Kapossy and Whatmore eds. 2008, 298ff.). See
discussion in Amerasinghe (2008), 10–13; Dugard (2010), 1052.
17
Mavrommatis Palestine Concessions, (1924) PCIJ Ser. A No. 2 p. 4, 12. For discussion of
subsequent cases endorsing this view see Amerasinghe (2008), 63–5.
18 19
Nottebohm (Liechtenstein v. Guatemala), ICJ Rep. 1955 p. 4, 24. Dugard (2010), 1052.
20
Interhandel (Switzerland v. US), ICJ Rep. 1959 p. 6, 27.
21
See Dugard, First Report, ILC Ybk 2000/II(1), 212–13; Crawford, (2006) 31 S. Af. YIL 19, 23;
Amerasinghe (2008), 32–6; see further section 18.3 below.
22
Dugard, First Report, ILC Ybk 2000/II(1), 222.
570 the implementation of responsibility

available for upholding the rights of private persons.23 Accordingly, the

ILC has kept faith with the Mavrommatis principle in Article 1 by making
it clear that the right to bring a diplomatic protection claim itself vests in
the state, not the person. This is the case regardless of the differences of
opinion over whose rights are asserted as a matter of the substance of the
claim. Correspondingly, a national has no capacity to waive diplomatic
protection, at least in advance.24
A related point is that a state’s right of diplomatic protection is just
that: a right or entitlement of the state, not an obligation. There has been
some debate about whether or not there is a duty on states to protect
their nationals abroad.25 Vattel’s original statement of the principle
framed it in a manner that linked the vindication of the sending state’s
rights with a duty to protect its nationals abroad:
Quiconque maltraite un citoyen offense indirectement l’Etat, qui doit protéger ce
citoyen.26

Subsequent authorities did not take up the aspect of duty, however,

and the general view was that if any duty existed it could only be a
moral or political rather than a legal one.27 In 1970 the International
Court reaffirmed that diplomatic protection is a discretionary power,
with the state to 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’.28
In his work as Special Rapporteur, Dugard made a case for providing de
lege ferenda that there was a duty to exercise diplomatic protection
(subject to some exceptions) on request by the injured person if the
injury resulted from a grave breach of a peremptory norm and the
injured person was unable to bring a claim for the injury before a
competent international court or tribunal.29 The ILC did not support this

23
Ibid., 213–5.
24
As such, Calvo clauses (requiring aliens to agree that they will not seek the protection of
their national state if they suffer injury at the hands of the host state) are not legally
effective in preventing the national state from exercising protection. See generally North
American Dredging Co. Case (US v. Mexico), (1926) 4 RIAA 29; García Amador, Third Report,
ILC Ybk 1958/II, 57–9; García Amador (1958), 455–61; Graham, (1970) 6 Tex. ILF 289; ADP
Commentary, Art. 14, §8; Amerasinghe (2008), 66, 191–211.
25
See the discussion in García Amador, (1958) 94 Hague Recueil 365, 427–8; Dugard, First
Report, A/CN.4/506, 22–34; Amerasinghe (2008), 78–90.
26
‘Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this
citizen’: Vattel (1758), Bk II, Ch. VI, §71 (298).
27 28
See Borchard (1916), 29. Barcelona Traction, Second Phase, ICJ Rep. 1970 p. 3, 44.
29
Dugard, First Report, ILC Ybk 2000/II(1), 220–6 (proposed Draft Arts. 3 and 4).
 diplomatic and functional protection 571

approach, concluding that international law neither imposes a duty of

diplomatic protection on the state nor gives the injured person an
enforceable right to the exercise of diplomatic protection by the state
of nationality.30 Article 19 does recommend that states give due consid-
eration to the possibility of exercising diplomatic protection, and to the
views of the injured persons, but these are mere voeux:31 the traditional
position holds, and a state may choose not to exercise its right to diplo-
matic protection in any given case.
If the state chooses not to act, this will be without prejudice to any
direct rights to claim redress for the injury that may be vested in the
affected person or persons themselves.32 This is an important point, as
the separation of the state’s right of action from any personal right of
action enabled the ILC to sidestep the consequences of deciding who is
the holder of the right to diplomatic protection.33 On the other hand, if
the state takes action to formally waive the right to claim – as distinct
from simply choosing not to exercise diplomatic protection – this may
abrogate altogether any separate derogable rights of the person, leav-
ing them without an international remedy. Controversial examples
have included the waivers in the 1951 Treaty of San Francisco between
the Allied Powers and Japan after the Second World War, which
expressly waived claims of the states concerned and those of their
nationals,34 and the waiver clause in the Algiers Accords establishing

30
Dugard has expressed his ‘great regret’ that the proposal was rejected and described the
decision as a ‘[m]issed opportunity’ for the strengthening of human rights protection:
see Dugard, (2005) 24 AYIL 75. 80.
31
The commentary is confusing on this point, however; see ADP Commentary, Art. 19;
Amerasinghe (2008), 85–90.
32 33
ADP Commentary, Art. 16. Crawford, (2006) 31 S. Af. YIL 19, 25.
34
Treaty of Peace with Japan, 8 September 1951, 136 UNTS 45, Arts. 14(b) (waiver by Allied
Powers), 19(a) (waiver by Japan). The Japanese courts held that Art. 19(a) had the effect of
waiving all claims by Japanese nationals under the municipal law of Japan or the Allied
Powers along with Japan’s right to exercise diplomatic protection: see e.g. Horimoto v.
State (Japan), (1959) 32 ILR 161; Shimoda v. State (Japan), (1963) 32 ILR 626. In Re World War
II Era Japanese Forced Labor Litigation, 114 F. Supp. 2d 939 (ND Cal., 2000), a US court
dismissed claims by US civilians and allied prisoners of war on the ground that under
Art. 14(b) the Allied Powers had waived all claims arising out of actions by Japan or
Japanese nationals or corporations taken in the course of the prosecution of the war. For
other litigation in the US courts, see e.g. Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir.,
2003); Saldajeno v. Ishihara Sangyo Kaisha, Ltd, 540 US 821 (2003); Suk Yoon Kim v.
Ishikawajima Harima Heavy Industries, 540 US 820 (2003); Tenney v. Mitsui & Co., 540 US 820
(2003); Zhenhuan Ma v. Kajima Corp., 540 US 820 (2003); Mitsubishi Materials Corp. v. Superior
Court of Orange County, 130 Cal. Rptr 2d 734 (2003). See further Tokudome and Tokudome,
(2003) 21 UCLA Pac. Basin LJ 1.
572 the implementation of responsibility

the Iran–US Claims Tribunal, which suspended all relevant claims

against Iran before US courts.35
There has been inconsistent interpretation of what means of imple-
mentation are encompassed by diplomatic protection. The authorities
have tended to distinguish between ‘diplomatic action’ and ‘judicial
proceedings’,36 but the term ‘diplomatic protection’ has sometimes been
used to embrace a wide variety of actions; Dugard lists consular action,
negotiation, mediation, judicial and arbitral proceedings, reprisals, retor-
sion, severance of diplomatic relations, economic pressure and, as a last
resort, the use of force.37 It may be recalled that until the beginning of
the twentieth century the use of force to collect contract debts, although
controversial, was a feature of state practice.38 The ‘diplomatic action or
other means of peaceful settlement’ formula used in ADP Article 1 is
broad enough to cover most means of implementation, but, of course, the
choice of means will be restricted by what is lawful, for example
in accordance with the provisions on countermeasures in ARSIWA.39 By
recalling the pacific settlement obligation of states under the UN Char-
ter,40 Article 1 expressly rejects any suggestion that the use of force against
another state for the protection of the intervening state’s nationals could
be recognized as lawful under the rubric of diplomatic protection.
Historically, there have been many examples of practice where states
have used the protection of nationals abroad to justify military

35
By Declaration of the Government of the Democratic and Popular Republic of Algeria, 19
January 1981, §11, the United States agreed to ‘bar and preclude the prosecution against
Iran of any pending or future claim of the United States or a United States national’, or
persons other than US nationals, arising out of the 1979 hostage crisis in Tehran. The
related Declaration 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, established the Iran–US Claims Tribunal. The US Supreme Court rejected a
challenge to the president’s authority to suspend claims in the US courts: see Dames and
Moore v. Regan, 453 US 654 (1981); referred to in Dallal v. Bank Mellat, [1986] QB 441, 448.
36
Panevezys-Saldutiskis Railway Co., (1939) PCIJ Ser. A/B No. 76, 16; Nottebohm, ICJ Rep.
1955 p. 4, 24.
37
Dugard, First Report, ILC Ybk 2000/II(1), 217.
38
Convention on Limitation of Employment of Force for Recovery of Contract Debts, 18
October 1907, 1 Bevans 607, concluded at the Second Hague Peace Conference, aimed to
put an end to this practice, although it fell short of imposing obligatory arbitration. See
further Scott, (1908) 2 AJIL 78.
39
Dugard, First Report, ILC Ybk 2000/II(1), 217–8. See further ARSIWA, Arts. 49–54;
Crawford, Second Report; ARSIWA Commentary, Pt III, Ch. II.
40
Art. 33(1) provides that ‘[t]he parties to any dispute . . . shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their own choice.’
 diplomatic and functional protection 573

intervention as a form of self-defence. Dugard sought to recognize this

reality by proposing a draft article which, in limited circumstances,
treated forcible intervention for the protection of nationals abroad as
an exception to the prohibition on the use of force as a legitimate means
of diplomatic protection.41 The ensuing debate in the ILC was divided
between those who felt that a rule permitting or legitimizing the use of
force in the context of diplomatic protection was dangerous and
unacceptable, and those who felt that questions of the use of force fell
beyond the scope of the diplomatic protection project. Either way it was
clear that the proposal could not be retained.42
A final point is the stipulation that the person injured is a national of
the state invoking responsibility. This flows from the Mavrommatis
principle, as otherwise there would be no injury to the claimant state.43
This fundamental requirement is addressed in the following section.

18.2.2 Title to protect: the nationality of claims

As a general rule, the state entitled to exercise diplomatic protection is
the state of nationality.44 If the person was not a national of the state
claiming injury at the time of the injury, the state’s claim will ordinarily
not be admissible, because there was no actual violation of substantive
law on the treatment of aliens vis-à-vis that state.
The rules for determining nationality differ depending on whether the
person is a natural person or a legal person. ADP Article 4 provides the
following definition of ‘state of nationality’ in respect of natural persons:
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 accord-
ance with the law of that State, by birth, descent, naturalization, succession of
States, or in any other manner not inconsistent with international law.

Article 4 affirms the established position that the requirements for

nationality of a natural person are generally to be determined by the law

41
See Dugard, First Report, ILC Ybk 2000/II(1), 218–20 (Draft Art. 2 and commentary).
42 43
See ILC Ybk 2002/II(2), 74–6. Crawford, (2006) 31 S. Af. YIL 19, 22.
44
This basic rule is reflected in ADP, Art. 3(1). As an exception, diplomatic protection may
be provided in the case of stateless persons and refugees; see ADP, Arts. 3(2), 8; ADP
Commentary, Art. 8. On the nationality principle see generally García Amador, Third
Report, ILC Ybk 1958/II, 66–7; Leigh, (1971) 20 ICLQ 453; Dugard, First Report, ILC Ybk
2000/II(1), 239–46; Orrego Vicuña, (2002) 69 ILA Rep. Conf. 631; Forcese, (2005) 37 Geo.
Wash. ILR 469; Crawford, (2006) 31 S. Af. YIL 19, 26–41; Amerasinghe (2008), 91–141;
Dugard (2010), 1053–61.
574 the implementation of responsibility

of each state.45 The connecting factors most commonly – but not exclu-
sively – relied on by states are birth (ius soli), descent (ius sanguinis) and
naturalization.46
One aspect of nationality that has been controversial is whether or not
international law also requires proof of a genuine or effective link between
the individual and the state of nationality in order for that state to bring a
diplomatic protection claim on behalf of the individual. Authority for this
view is claimed to come from the Nottebohm case, in which the Inter-
national Court decided that Liechtenstein could not extend diplomatic
protection to a German individual who had acquired the nationality of
Liechtenstein through naturalization, but who had had strong connec-
tions to Guatemala, the respondent state, for a period of over thirty-four
years.47 The better view, recognized in the commentary to Article 4, is that
this case should not be seen as laying down a rule of general application.48
It was unusual in that Mr Nottebohm’s nationality link to Liechtenstein,
the state claiming on his behalf, was seen as tenuous by comparison with
his strong links to the respondent state. As such the Nottebohm finding was
a relative one – the Court did not actually rule on the status of Mr
Nottebohm’s Liechtenstein nationality in the abstract.49 Moreover, the
case was much affected by the fact that Nottebohm evidently relinquished
his German nationality in order to avoid the consequences of being con-
sidered an enemy alien when Guatemala declared war on Germany.50 The
judgment should be confined to the particular circumstances of the case
and, although it may serve as a useful rule in such narrow cases,51 the ILC

45
A grant of nationality by a state would be open to challenge if it were inconsistent with
international law. See Nationality Decrees Issued in Tunis and Morocco (French Zone), (1923)
PCIJ Ser. B No. 4, 24; Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws, 13 April 1930, 179 LNTS 89, Art. 1; European Convention on
Nationality, 6 November 1997, 2135 UNTS 213, Art. 3. International tribunals have
jurisdiction to investigate nationality and verify for themselves the valid application of
municipal law: see Nottebohm, ICJ Rep. 1955 p. 4, 52; Flegenheimer, (1958) 25 ILR 91.
46
ADP Commentary, Art. 4, §§3–4; Dugard (2010), 1053.
47
Nottebohm, ICJ Rep. 1955 p. 4.
48
ADP Commentary, Art. 4, §5. See further Crawford, (2006) 31 S. Af. YIL 19, 27–9; Dugard
(2010), 1053–5.
49
Amerasinghe (2008), 93–5.
50
Which it did on 12 December 1941, despite having declared neutrality on 4 September
1941. Nottebohm’s application for Liechtenstein nationality, dated 9 October 1939,
was thus made in the shadow of belligerency. Liechtenstein was neutral in the Second
World War.
51
I.e. where the person has no effective connection with the claimant state but does, by
comparison, have a genuine link with the respondent; see Amerasinghe (2008), 113–16.
But for a thoroughgoing defence of Nottebohm see Brownlie’s Principles, Ch. 23.
 diplomatic and functional protection 575

proceeded on the view that there is no generally applicable genuine link

requirement, in substitution for nationality under the law of the claimant
state, for the diplomatic protection of natural persons.
Difficulties have also arisen when the individual in question is a
national of more than one state.52 For example, a person might acquire
Australian nationality by birth, British nationality by descent, and New
Zealand nationality through naturalization, without relinquishing any
prior nationality (depending on the applicable domestic rules). If one of
the states of nationality seeks to bring a diplomatic protection claim on
his or her behalf, is it required to show that its nationality connection to
that individual is stronger than that of any other state of nationality?
There are different considerations depending on whether the respondent
state is also a state of nationality. If it is not, then it is generally accepted
that the respondent state cannot invoke the individual’s dual nationality
of an absent third state as a bar to the claim. In other words, ‘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’.53 This position is reflected in Article 6.54
On the other hand, if the proceedings would involve two states of
nationality of the same individual, matters are more complicated.
According to the International Court in 1949, the ‘ordinary practice’
was that one state of nationality could not bring a diplomatic protection
claim against another state whose nationality the individual also pos-
sessed.55 This exclusion of diplomatic protection was based on the sover-
eign equality of states; one state of nationality was not to be privileged
against another.56 But this practice was not universal, and it has gener-
ally given way to the principle that if the nationality of the claimant state
is dominant relative to the nationality of the respondent state, the claim
is not excluded.57 The question of predominance, or which state of
nationality carries the ‘preponderance of effectiveness’, will be assessed
by balancing the strengths of each connection in the light of a number of
different factors, elucidated in the jurisprudence of the Iran–US Claims

52 53
See e.g. Forcese (2005). Salem, (1923) 2 RIAA 1161, 1188.
54
See ADP Commentary, Art. 6.
55
Reparation for Injuries Suffered in the Service of the United Nations, ICJ Rep. 1949 p. 174, 186.
See also Hague Convention on Certain Questions relating to the Conflict of Nationality
Laws, 13 April 1930, 179 LNTS 89, Art. 4.
56
See e.g. Salem, (1923) 2 RIAA 1161, 1184; Mergé, (1955) 22 ILR 443, 454–5; Flegenheimer,
(1958) 25 ILR 91, 103–4.
57
See Mergé, (1955) 22 ILR 443, 455; Case No. A/18, (1984) 75 ILR 175.
576 the implementation of responsibility

Tribunal in particular.58 The principle that one state should not be

unduly privileged over the other still applies where the connections of
each are evenly matched. Article 7 is framed in a manner which shows
that the right to claim against another state of nationality is an exception
to the traditional rule excluding diplomatic protection in such cases.59
On the whole, the ADP strike a sensible and pragmatic balance on an
issue that has given rise to much conflict and litigation.
A further area of controversy relates to the time of determination of
nationality, or what is known as the rule of continuous nationality.60
There are three aspects to the rule: nationality at the time of the injury
(the dies a quo), nationality at the time of presentation of the claim (the
dies ad quem), and continuity between the two. It has traditionally been
accepted that the de cuius must be a national of the claiming state both at
the time of injury and at the time of official presentation of the claim.61
There has been some uncertainty over whether continuity between those
two points in time is also required, but on the whole this has not raised
major concerns;62 it has generally been accepted that the person must
not have had the nationality of the respondent state during that time.63
The most controversial aspect has been the dies ad quem, with no clear
state practice which could form the basis of a customary rule pointing to
a single date.64 Some have gone beyond the date of presentation of the
claim and treated the principle of continuous nationality as a require-
ment right through to the resolution of the claim.65 Others have argued
that nationality at the time of injury should be sufficient, as the injustice
that can be imposed if the original nationality is changed for reasons
unrelated to the diplomatic protection claim, or for reasons beyond the
58
See the discussion in Dugard (2010), 1056–7.
59
Art. 7 provides: ‘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.’ See ADP Commentary, Art. 7.
60
See generally Leigh (1971), 456–9; Dugard, First Report, ILC Ybk 2000/II(1), 239–46;
Amerasinghe (2008), 96–106; Dugard (2010), 1060–1.
61
See e.g. Kren, (1955) 20 ILR 233.
62
See the examples discussed in Amerasinghe (2008), 98–100, but cf. IDI Res. 1965/I
(Warsaw), Art. 1(a), which does not expressly require continuity.
63
Dugard, First Report, ILC Ybk 2000/II(1), 240, citing Jennings and Watts (eds.) (1992), 512;
Amerasinghe (2008), 97, citing O’Connell, 2 International Law (1970), 1037.
64
Amerasinghe (2008), 101.
65
See e.g. Loewen Group, Inc. and Raymond L. Loewen v. US, ICSID Case No. ARB(AF)/98/3, 26
June 2003 (in the context of continuous nationality of a corporation; for criticism see
Paulsson, (2004) 20 Arb. Int. 213); García Amador, Third Report, ILC Ybk 1958/II, 66;
Amerasinghe (2008), 97.
 diplomatic and functional protection 577

person’s control (such as state succession, marriage, etc.), outweighs the

relatively low risk of abuse through ‘nationality shopping’ for diplomatic
protection purposes.66 Once again, issues of logic and coherence arise: if
the claim really is that of the state, why should it be lost because of the
subsequent conduct, voluntary or involuntary, of the individual? In
retrospect it is a pity that the ILC did not abandon Vattel and treat
diplomatic protection as a pure matter of procedure. But, as Amera-
singhe points out, the continuous nationality rule is ‘a practical . . . rule,
rather than being based on rigorous logic’.67
The ILC chose to retain the continuous nationality rule in its trad-
itional form as the default position, albeit with a measure of progressive
development:
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 national-
ity existed at both these dates.

However, Article 5(2) recognizes that exceptions may apply in certain

circumstances, and paragraphs 3 and 4 prevent claims from being
brought against a former state of nationality if the injury occurred while
the person was a national of that state and not of the claimant state, or
against a state whose nationality the person has acquired after the claim
has been presented.68
As noted in Article 1, ‘national’ includes legal persons as well as
natural persons. Part II, Chapter III of the ADP covers the nationality
of legal persons, including provisions relating to continuous national-
ity, shareholder protection, and legal persons other than corporations.69
In a number of respects these provisions are questionable, as will be
seen.
Barcelona Traction remains the leading authority on questions of
nationality in respect of corporations and their shareholders.70 The
company was incorporated in Canada, but 88 per cent of the

66
Leigh (1971), 456; Dugard, First Report, ILC Ybk 2000/II(1), 240.
67 68
Amerasinghe (2008), 97. ADP Commentary, Art. 5.
69
ADP Commentary, Ch. III. On diplomatic protection of legal persons see generally
Dinstein, in Wellens (1998) 505; Dugard, Fourth Report, ILC Ybk 2003/II(1), 3–30;
Amerasinghe (2008), 122–41; Lowe, in Crawford, Pellet and Olleson (2010) 1005.
70
Barcelona Traction, Second Phase ICJ Rep. 1970 p. 3. See further Crawford, (2006) 31 S. Af.
YIL 19, 36–7; Amerasinghe (2008), 122–30; Juratowitch, (2011) 81 BYIL 281.
578 the implementation of responsibility

shareholders were Belgian. The International Court denied Belgium’s

attempt to extend protection to the company vis-à-vis Spain – a decision
influenced to a large extent by public policy concerns, including the
principle that shareholders must accept the risks inherent in investing
in corporations operating abroad, and the desire to avoid multiple claims
arising from injury to one company with shareholders of different and
varying nationalities.71
The default rule, following Barcelona Traction, is that the nationality of
a legal person is determined by its state of incorporation or registration,
not the state of nationality of its shareholders.72 It is generally only
where the direct rights of shareholders are infringed (as distinct from
the rights of the company) that the state of nationality of those share-
holders can exercise diplomatic protection. This is no more than an
application of the usual rules of diplomatic protection of natural or legal
persons, who happen to be shareholders, rather than an exception to the
general regime.73
The ILC Draft Articles sought to develop the rule of incorporation
further by making an exception in cases where there is no sufficient
connection between the company and its state of incorporation. After
stating the usual rule, Article 9 goes on to provide:
[W]hen 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.74

In effect, this amounts to an application of the Nottebohm genuine link

criterion that the ILC itself rejected when determining the nationality of
natural persons.75 As such, Nottebohm can be seen as standing for ‘the
assertion that in referring to institutions of municipal law, international

71
See Dugard (2010), 1057.
72
Barcelona Traction, Second Phase, ICJ Rep. 1970 p. 3. See e.g. Italy v. Cuba, Final Award, 15
January 2008, available at www.italaw.com (French only), §§200–11; for criticism of the
rigid application of the rule in the context of the case see the dissenting opinion of
arbitrator Tanzi, §§31–6; Potestà, (2012) 106 AJIL 341, 344.
73
It is generally a matter for municipal law to determine the distinction between rights of
the company and direct rights of shareholders. See Barcelona Traction, Second Phase, ICJ
Rep. 1970 p. 3, 33–4; Diallo, Preliminary Objections, ICJ, 24 May 2007, §§49–67, esp. §64.
For commentary on shareholder protection see Dugard, Fourth Report, ILC Ybk 2003/
II(1), 3–30; ADP Commentary, Art. 12; Lowe (2010), 1012–6; Juratowitch (2011).
74
See ADP Commentary, Art. 9; Amerasinghe (2008), 133–5.
75
The Court in Barcelona Traction did not stipulate a genuine or effective link requirement
for the nationality of corporations, but four of the judges in the majority did: see
 diplomatic and functional protection 579

law has a reserve power to guard against giving effect to ephemeral,

abusive, and simulated creations’.76 The formulation in Article 9 is
problematic, however, in that the state of nationality may change as
corporate control and its indicia change. This possibility makes the
provisions on continuous nationality of corporations in Article 10
important,77 but examples can be conceived where the operation of
Articles 9 and 10 together will be insufficient to provide the protection
that is intended.78
It is suggested that – while international law always retains a reserve
power to prevent abuses of form – the dominant consideration with
corporations is that both their existence is determined and the governing
regulatory regime provided by the national law of the place of incorpor-
ation. There is no such thing as a private transnational corporation,
simply a national corporation engaged in cross-border activities. Nor is
there such a thing as an international corporate group, as distinct from
an aggregate of linked corporations formed under the law of several
states. Anything else is a recipe for autarchy, at a time when many of
the world’s economic problems are due to regulatory weakness and
corporate excess.
The ADP also reflect other ‘exceptions’ to the general rule in Barcelona
Traction. Some of these are true exceptions, or even manifestations of the
proposition that corporate nationality derives from the law of the state
of incorporation. Thus diplomatic protection may be exercised by the
state of nationality of the shareholders where the company has ceased to
exist or lost the capacity to act.79 Much more problematic is the sugges-
tion that the state(s) of nationality of the shareholders may step in where
the respondent state is the state of incorporation: why should sharehold-
ers who have chosen to invest locally be more protected than those who
invest in third-state corporations? Thus the exceptions in ADP Article 11

Barcelona Traction, Second Phase, ICJ Rep. 1970 p. 3, 80 (Judge Fitzmaurice), 186 (Judge
Jessup), 254 (Judge Padilla Nervo), 281 (Judge Gros).
76 77
Brownlie’s Principles, 706. ADP Commentary, Art. 10.
78
E.g. a hypothetical company incorporated in state A, but with ownership, control and
substantial business undertaken by nationals of state B in states B and C, would be a
national of state B. However, if state A were to appoint a receiver, who would assume
exclusive control of the company, and state B believed that the appointment breached
international minimum standards, state B would have no right to exercise diplomatic
protection, as the very act complained of would have deprived the company of its
nationality of state B under the continuity rules in Draft Art. 10. See Crawford, (2006) 31
S. Af. YIL 19, 38–40.
79
ADP Commentary, Art. 11. See further Amerasinghe (2008), 136–7; Dugard (2010),
1059–60.
580 the implementation of responsibility

do not implement the dicta in Barcelona Traction and are both under- and
over-inclusive. In cases where the wrongful act is implicated in the dissol-
ution of the corporation, shareholders will have to rely on direct injury
under Article 12, but there may be no direct injury. In cases where the
corporation continues to exist and the law of the respondent state did not
require local incorporation, diplomatic protection is altogether excluded.
By contrast, where local incorporation was required by law any foreign
shareholder may be protected, irrespective of the amount of its holding or
of other measures which are or may be taken to vindicate the rights of
the corporation.80 Unsurprisingly, the Court in Diallo expressed scepti-
cism as to whether these proposals reflect general international law.81
18.2.3 Exhaustion of local remedies
Along with nationality, the other fundamental requirement for admissi-
bility of a diplomatic protection claim is that the injured person has
exhausted all effective local remedies available in the host state.82 The
Permanent Court referred to this preliminary step in its statement of the
diplomatic protection principle in Mavrommatis:
It is an elementary principle of international law that a State is entitled to protect
its subjects, when injured by acts contrary to international law committed by
another State, from whom they have been unable to obtain satisfaction through
the ordinary channels.83

As the Court observed in the Interhandel case, the idea behind the rule
is that ‘the State where the violation occurred should have an opportun-
ity to redress it by its own means, within the framework of its own
domestic legal system’.84
As with the rules on nationality of claims, the local remedies rule has
developed largely out of respect for state sovereignty,85 and it is
80
It is a legitimate regulatory prerogative for a state to require certain businesses to be
carried on through locally incorporated bodies (e.g. media, banking). See further
Crawford, (2006) 31 S. Af. YIL 19, 39–41.
81
Diallo, Preliminary Objections, ICJ, 24 May 2007, §§91–3.
82
See generally Fawcett (1954); García Amador (1958), 445–61; Mummery (1964); Cançado
Trindade (1983); Crawford, Second Report, 39–41; Dugard, Second Report, ILC Ybk
2001/II(1), 97–114; Kokott, (2002) 69 ILA Rep. Conf. 606; Amerasinghe (2004); Paulsson
(2005); Crawford and Grant, ‘Local remedies, exhaustion of’, (2007) MPEPIL;
Amerasinghe (2008), 142–90; Dugard (2010), 1061–7.
83
Mavrommatis, (1924) PCIJ Ser. A No. 2 p. 4, 12.
84
Interhandel, Preliminary Objections, ICJ Rep. 1959 p. 6, 27.
85
For more discussion of the function and character of the principle, and the interests
behind it, see García Amador (1958), 445–9; Amerasinghe (2004), 56–64; Crawford,
(2006) 31 S. Af. YIL 19, 41–2.
 diplomatic and functional protection 581

recognized as an important and well-established principle of customary

international law.86 It is not a purely technical or rigid rule but rather
has been applied ‘with a considerable degree of elasticity’.87
It is clear that the remedies required to be exhausted are those legal
remedies actually provided by the law of the host state.88 The ILC has
codified the customary rule in ADP Article 14(1), defining local remedies
in paragraph (2) as follows:
‘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.89
Given that available local remedies will vary depending on the muni-
cipal law of the relevant state, Article 14 is intended as a broad statement
of the main types of legal remedies that must be exhausted rather than
an absolute rule.90 In the case of judicial remedies, possibilities of appeal
must be pursued as far as they can, in order to obtain a final decision.91
As for administrative remedies, the injured person need only pursue
those that will result in a binding outcome.92 In its 2007 decision in
Diallo, the Court further clarified which administrative remedies are
covered by the rule, stating that
administrative remedies can only be taken into consideration for purposes of the
local remedies rule if they are aimed at vindicating a right and not at obtaining a
favour, unless they constitute an essential prerequisite for the admissibility of
subsequent contentious proceedings.93
Accordingly, the possibility open to Diallo of submitting a request to
the Congolese Prime Minister for reconsideration of the decision to expel
him from the DRC, in the hope that he would retract his decision as a
matter of grace, was not a local remedy requiring to be exhausted before
Guinea espoused his claim.94
The local remedies rule in Article 14 is subject to the exceptions set out
in Article 15, which will be narrowly construed.95 The first of these

86
Elettronica Sicula SpA (ELSI) (US v. Italy), ICJ Rep. 1989 p. 15, 42; Diallo, Preliminary
Objections, ICJ, 24 May 2007, §42.
87
Certain Norwegian Loans (France v. Norway), ICJ Rep. 1957 p. 9, 39 (Judge Lauterpacht).
88
Ambatielos, (1956) 12 RIAA 91, 120. See further Dugard, Second Report, ILC Ybk 2001/II(1),
102–3.
89 90
See ADP Commentary, Art. 14. Ibid., Art. 14, §5.
91 92
ELSI, ICJ Rep. 1989 p. 15, 45–6. See ADP Commentary, Art. 14, §5.
93 94
Diallo, Preliminary Objections, ICJ, 24 May 2007, §47. Ibid.
95
ADP Commentary, Art. 15; Crawford, (2006) 31 S. Af. YIL 19, 44–9; Amerasinghe (2008),
149–61.
582 the implementation of responsibility

concerns the principle of effectiveness: in order to be covered by the rule,

the local remedies must actually be reasonably available to the injured
person, and must offer a reasonable possibility of effective redress.96 In
other words, there is no requirement to exhaust local remedies if it
would be futile to do so because the municipal system will not provide
an effective remedy, for example if the municipal courts would have no
jurisdiction to decide the matter or a decision would simply amount to a
repetition of an inadequate remedy already pursued.97 Another import-
ant exception is where the state has waived the requirement that local
remedies be exhausted;98 this has become increasingly standard in the
context of investment arbitration.99
ADP Article 15 lists three further situations in which local remedies do
not need to be exhausted: when there is undue delay in the remedial
process which is attributable to the state alleged to be responsible; where
there was no relevant connection between the injured person and the
state alleged to be responsible at the date of injury; and where the
injured person is manifestly precluded from pursuing local remedies.100
To satisfy the requirement that local remedies have been ‘exhausted’,
there must have been a final decision of the competent organ or author-
ities of the host state; otherwise, there could be doubt as to whether the
wrongful act was the final expression of the conduct of that state such
that it should be held internationally responsible.101 The Finnish Ships
arbitration set a strict test that required all contentions of fact and
propositions of law raised before the international court to have been
investigated and adjudicated upon by the domestic courts.102 No doubt
the failure to prove facts or law might mean that local remedies have not
been effectively exhausted. But there is no requirement that the inter-
national basis of claim (in common law terminology, the cause of action)

96
See Finnish Ships Arbitration, (1934) 3 RIAA 1479, 1494–1504; Norwegian Loans, ICJ Rep.
1957 p. 9, 39 (Judge Lauterpacht). See further ADP Commentary, §§2–4; Amerasinghe
(2008), 151–7.
97
See Panevezys-Saldutiskis Railway Co., (1939) PCIJ Ser. A/B No. 76, 18. See further García
Amador (1958), 445–9; Crawford, (2006) 31 S. Af. YIL 19, 44–5.
98
ADP, Art. 15(e); see ADP Commentary, Art. 15, §§12–17; Crawford, (2006) 31 S. Af. YIL
19, 47–9; Amerasinghe (2008), 161–71.
99
Under the ICSID Convention, Art. 26, second sentence, the presumption is that local
remedies are not required. The same rule is applied in investment arbitration generally:
see e.g. Schreuer, The ICSID Convention: A Commentary (2001), 338–96; Douglas (2009),
28–30.
100
See ADP Commentary, Art. 15, §§1, 5–11; Amerasinghe (2008), 157–61.
101
García Amador (1958), 449–51.
102
Finnish Ships Arbitration, (1934) 3 RIAA 1479, 1502.
 diplomatic and functional protection 583

should have been at stake in the domestic proceedings. If the local courts
give a remedy it does not matter that it is not based on international law;
if they fail to give a remedy, the fact that they purported to apply
international law is likewise irrelevant.
The test in Ambatielos was also expressed in strict terms:
It is the whole system of legal protection as provided by municipal law, which
must have been put to the test before a State, as the protector of its nationals, can
prosecute the claim on the international plane.103

The tribunal held that the individual’s failure to call a key witness at
the trial meant that local remedies had not been exhausted, despite the
fact that the failure was now irremediable. Since an approach incorpor-
ating ‘the use of procedural facilities which municipal law makes avail-
able to litigants’ might require an international tribunal to second-guess
decisions made at trial by counsel experienced in the local system, only
in a clear case should a ‘procedural default’ rule be applied.
In the ELSI case, the chamber defined the rule in a more relaxed manner
as follows:
[F]or an international claim to be admissible, it is sufficient if the essence of the
claim has been brought before the competent tribunals and pursued as far as
permitted by local law and procedures, and without success.104

This formulation strikes an appropriate balance. The question is

whether the substantial grievance has been presented to the local courts
under whatever rubric is available there: if this is done without success,
local remedies will have been exhausted.
The evidence supporting the essence of the claim will need to be
produced during the process of exhausting local remedies, and a failure
in the preparation or presentation of the claim at the domestic level
cannot be remedied by subsequent resort to diplomatic protection.105
The International Court reiterated the established position on the
burden of proof in Diallo in 2007:
[I]t is incumbent on the applicant to prove that local remedies were indeed
exhausted or to establish that exceptional circumstances relieved the allegedly
injured person whom the applicant seeks to protect of the obligation to
exhaust available local remedies (see [Elettronica Sicula SpA (ELSI) (US v. Italy),
ICJ Rep. 1989 p. 15, 43–4]). It is for the respondent to convince the Court that

103 104
(1956) 12 RIAA 119, 120. ELSI, ICJ Rep. 1989 p. 15, 46.
105
ADP Commentary, Art. 14, §§6–7.
584 the implementation of responsibility

there were effective remedies in its domestic legal system that were not
exhausted (see [ibid., 46]).106

While the existence and overall shape of the local remedies rule in the
context of diplomatic protection are generally unquestioned, areas of
uncertainty do remain. The ADP make no pronouncement on the long-
debated question of whether the rule is substantive or procedural, for
example.107 Further, the rule requiring local remedies to be exhausted
does not apply where the wrongful act has directly injured the claimant
state,108 but in some circumstances a ‘mixed claim’ will be brought in
which it can be difficult to differentiate between direct injury to the state
and indirect injury through its nationals for the purposes of ascertaining
whether local remedies must be exhausted.109 In such cases tribunals
have employed a wide variety of tests to work out whether the claim is
‘preponderantly’ one of direct or indirect injury for assessing the applic-
ability of the rule.110

18.3 Diplomatic protection and individual and state invocation

The rules on diplomatic protection can be regarded as having developed
primarily for the protection of individual rights to personal integrity,
property and due process – that is, areas now covered without distinction
as to nationality by the international law of human rights.111 In the early
phase of development of international law, individual persons and cor-
porations had no standing to invoke state responsibility. As such, the
assumption (often referred to as a fiction) that injury to a national
indirectly injured the state was necessary in order that responsibility
could be invoked on their behalf and their rights enforced. Now the
106
Diallo, Preliminary Objections, ICJ, 24 May 2007, §44. See also Norwegian Loans, ICJ Rep.
1957 p. 9, 39 (Judge Lauterpacht).
107
See e.g. Fawcett (1954); García Amador (1958), 447–9; Dugard (2010), 1066–7. The view
that it is generally procedural is supported by the placement and formulation of
ARSIWA, Art. 44(b), and see ARSIWA Commentary, Art. 44, §1, describing the
exhaustion of local remedies and the nationality rule as ‘conditions for invoking the
responsibility of the state in the first place’; Crawford, Second Report, 39–41. Cf. Draft
Articles, Art. 22.
108
Case concerning the Arrest Warrant of 11 April 2000 (DRC v. Belgium), ICJ Rep. 2002 p. 3, 18.
109
See e.g. Interhandel, ICJ Rep. 1959 p. 28; United States Diplomatic and Consular Staff in Tehran
(US v. Iran), ICJ Rep. 1980 p. 3; ELSI, ICJ Rep. 1989 p. 15, 43; Avena and Other Mexican
Nationals (Mexico v. USA), ICJ Rep. 2004 p. 12, 35–6.
110
See Dugard, Second Report, ILC Ybk 2001/II(1), 104–6; ADP Art. 14(3); ADP Commentary,
Art. 14, §§9–13; Wittich, (2000) 5 Austrian RIEL 121; Amerasinghe (2008), 172–90.
111
Dugard, First Report, ILC Ybk 2000/II(1), 213–5; Amerasinghe (2008), 32–3, 76.
 diplomatic and functional protection 585

position has changed significantly, with increasing mechanisms by

which individuals and other non-state entities enjoy direct rights to
pursue claims against their own and foreign states in these fields, with-
out requiring espousal of their claim by their state of nationality.112
Developments in the sphere of dispute resolution between aliens and
host states, as well as and because of dissatisfaction with the operation of
some of the rules of diplomatic protection, have led to arguments that
the institution is now obsolete.113 But the reality is that remedies for
private persons under international law remain lex specialis, and diplo-
matic protection still has a role to play, even if as a last resort.114 What is
the relationship between traditional diplomatic protection and these
rights of individual invocation?

18.3.1 Human rights

Diplomatic protection is essentially a remedial process concerned with
secondary rights and obligations, that is, with state responsibility in the
sense of the present study.115 By contrast a large number of international
human rights instruments now provide for some form of individual
complaint mechanism in case of violation of the primary rights they
specify, and not only against foreign states within whose jurisdiction
they may be but also against the individual’s own state. The European
Convention on Human Rights is a prime example of a human rights
protection system that offers real remedies to people in forty-seven
European states through the European Court of Human Rights.116 Indi-
viduals in the Americas may resort to the Inter-American Commission
and the Inter-American Court of Human Rights; those in Africa have the
African Court of Human and Peoples’ Rights. Various conventions have
established procedures for complaints to treaty monitoring bodies, such
112
The International Court has recognized this: see e.g. LaGrand (Germany v. US), ICJ Rep.
2001 p. 466, 493–4; Avena, ICJ Rep. 2004 p. 12, 35–6. See further Amerasinghe (2008),
16–20.
113
See Dugard, First Report, ILC Ybk 2000/II(1), 212–3; Amerasinghe (2008), 18, 73–8.
114
Dugard, First Report, ILC Ybk 2000/II(1), 213–5; ADP Commentary, Art. 1; Amerasinghe
(2008), 73–8. ADP, Art. 17 provides that the ADP 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’; see ADP Commentary, Art. 17. See also ARSIWA and
Commentary, Art. 33(2).
115
Amerasinghe (2008), 75.
116
European Convention for the Protection of Human Rights and Fundamental Freedoms,
4 November 1950, ETS 5, Art. 46. See further Harris, O’Boyle and Warbrick, Law of the
European Convention on Human Rights (2nd edn, 2009); Jacobs, White and Ovey, The
European Convention on Human Rights (5th edn, 2010).
586 the implementation of responsibility

as the process of individual complaint to the Human Rights Committee

set up in the Optional Protocol to the International Covenant on Civil and
Political Rights (ICCPR).117
But it does not follow, from the proliferation of human rights mech-
anisms providing individual rights to claim, that the institution of diplo-
matic protection is no longer useful.118 There is no multilateral
convention that specifically provides aliens with access to effective rem-
edies for breaches of their human rights, and large sections of the global
population are not covered by any operational regional instrument.
Further, participation by states in most of the treaty monitoring proced-
ures is optional, and enforcement possibilities are slim given that the
‘views’ expressed by treaty monitoring bodies are non-binding. While
individuals have undoubtedly become participants in the international
legal system,119 it is still the case that most states would not take
complaints from individuals as seriously as they would take a diplomatic
protection claim against them by another state. In his defence of the
continued relevance of diplomatic protection, Dugard observed:
To suggest that universal human rights conventions, particularly the Inter-
national Covenant on Civil and Political Rights, provide individuals with effective
remedies for the protection of their human rights is to engage in a fantasy which,
unlike fiction, has no place in legal reasoning.120

It is, perhaps, more to the point to consider how the two institutions
interact in practice. The ADP shed some light on this issue, providing
that the rules of customary international law dealing with diplomatic
protection and the rules for the protection of human rights are
complementary – any right to resort to measures other than diplomatic
protection in seeking redress for internationally wrongful acts is ‘not
affected’ by the ADP.121 That is, neither system trumps or excludes the
other, and the existence of one alternative does not extinguish the other.
This is borne out by relevant human rights instruments. For example,
Article 23 of the International Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families reinforces the

117
16 December 1966, 999 UNTS 171. The Committee was established by ICCPR, Pt IV. See
further Ghandhi, The Human Rights Committee and the Right of Individual Communication
(1998); Tyagi, The UN Human Rights Committee (2011), 386–630; Parlett (2011).
118
See Dugard, First Report, ILC Ybk 2000/II(1), 213–5; Amerasinghe (2008), 73–8.
119
The term ‘participant’ is preferable to the more contentious terms ‘subject’ and ‘object’;
see Higgins, Problems and Process: International Law and How We Use It (1994), 48–55;
Dugard, (2005) 24 AYIL 75, 77.
120 121
Dugard, First Report, ILC Ybk 2000/II(1), 214. ADP Commentary, Art. 16.
 diplomatic and functional protection 587

right of affected individuals to seek diplomatic protection, even though

the Convention provides for a monitoring body and an optional right of
individual petition similar to the procedures under the ICCPR First
Optional Protocol.122 In the case of violations of obligations erga omnes,
the parallel availability of diplomatic protection and the right of all
states to invoke responsibility under ARSIWA Article 48 – without
needing to satisfy the tests for nationality or exhaustion of local
remedies – is potentially significant.123 The parallel development of
human rights law and diplomatic protection is also evident in the appli-
cation of principles such as the local remedies rule by human rights
bodies: the material content of the rule is basically the same in both
institutions, although its manner of implementation may be influenced
by the particular context in which it is applied.124
The International Court in Diallo affirmed that the scope ratione mater-
iae of diplomatic protection has widened over time, and now encom-
passes internationally guaranteed human rights.125 This confirms that
diplomatic protection may be used to uphold recognized human rights
beyond the traditional minimum standards of treatment for aliens.126 In
other words, far from rendering diplomatic protection obsolete, the
development of international human rights law has expanded the rights
that may be covered by the old institution of diplomatic protection.127

18.3.2 Investment protection

Another important field of international law in which diplomatic pro-
tection and individual rights to claim may arise in parallel is the field of
investment protection.128 There has been a proliferation of bilateral and
multilateral treaties for the promotion and protection of foreign
122
18 December 1990, 2220 UNTS 3. See also the United Nations Declaration on the Human
Rights of Individuals who are not Nationals of the Country in which they Live, 13
123
December 1985, GA Res. 40/144, Art. 10. Vermeer-Künzli, (2007) 56 ICLQ 553.
124
See Amerasinghe (2004), 64–83; Amerasinghe (2008), 329–33.
125
Diallo, Preliminary Objections, ICJ, 24 May 2007, §39.
126
See Lillich (1978), 390–408 for an account of the ‘much-noted, but little-explored
synthesis between international human rights law and the law governing the treatment
of aliens’ (at 408). For an even earlier perspective: García Amador (1958), 435–42.
127
Amerasinghe is critical of the work of the ILA on diplomatic protection, for favouring
protection of the interests of the alien ‘to the extent sometimes of obliterating the
balance in the institution of diplomatic protection and consequently attacking its
foundation as an inter-state concept’: Amerasinghe (2008), 6 n. 7.
128
See generally Broches, (1972) 136 Hague Recueil 331, 371–80; Kokott, (2002) 69 ILA Rep.
Conf. 259; Spiermann, (2004) 20 Arb. Int. 179, 200–5; Amerasinghe (2008), 334–41;
Juratowitch, (2008) 23 ICSID Rev. 10; Potestà (2012).
588 the implementation of responsibility

investment, most of which provide private investors with direct rights to

claim against host states in the event of injury. In Barcelona Traction the
International Court acknowledged that foreign investment is largely
protected by bilateral investment treaties (BITs);129 at the same time
the Court has resolutely refused to infer general international law from
these.
Thus while the Court described the role of diplomatic protection in
this context as ‘somewhat faded, as in practice recourse is only made to it
in rare cases where treaty régimes do not exist or have proved inopera-
tive’,130 it went on to note that the trend of establishing
special legal régimes governing investment protection, or [including] provisions
in this regard . . . in contracts entered into directly between States and foreign
investors, is not sufficient to show that there has been a change in the customary
rules of diplomatic protection; it could equally show the contrary.131

In other words, the expansion of private rights to claim against foreign

states for breaches of obligations in respect of investment protection
may have to a large extent sidelined the need for diplomatic protection
in such cases, but it has not changed the rules of admissibility of diplo-
matic claims, according to the Court.132 This position is reflected in ADP
Article 17, which frames diplomatic protection as a residual remedy, the
rules of which will not apply in cases where they are ‘inconsistent with
special rules of international law, such as treaty provisions for the
protection of investments’.133
One of the most important lex specialis regimes in this context is that
provided for in the 1965 Convention on the Settlement of Investment
Disputes between States and Nationals of Other States (ICSID Conven-
tion).134 Its key jurisdictional provisions are as follows.
Article 25
(1) The jurisdiction of the Centre shall extend to any legal dispute arising
directly out of an investment, between a Contracting State (or any constituent
subdivision or agency of a Contracting State designated to the Centre by that
State) and a national of another Contracting State, which the parties to the

129
Barcelona Traction, Second Phase, ICJ Rep. 1970 p. 3, 47.
130 131
Diallo, Preliminary Objections, ICJ, 24 May 2007, §88. Ibid., §90.
132
For the view that the BIT phenomenon has affected substantive standards see Mondev
International Ltd v. US, ICSID Case No. ARB(AF)/99/2, 11 October 2002, §116; for the
contrary view, Glamis Gold Ltd v. US, 8 June 2009, §§612–16, available at www.italaw.
com.
133
See ADP Commentary, Art. 17.
134
18 March 1965, 575 UNTS 159. See Broches (1972), 371–80.
 diplomatic and functional protection 589

dispute consent in writing to submit to the Centre. When the parties have given
their consent, no party may withdraw its consent unilaterally.
...
Article 26
Consent of the parties to arbitration under this Convention shall, unless
otherwise stated, be deemed consent to such arbitration to the exclusion of any
other remedy. A Contracting State may require the exhaustion of local adminis-
trative or judicial remedies as a condition of its consent to arbitration under this
Convention.
Article 27
(1) No Contracting State shall give diplomatic protection, or bring an inter-
national claim, in respect of a dispute which one of its nationals and another
Contracting State shall have consented to submit or shall have submitted to
arbitration under this Convention, unless such other Contracting State shall have
failed to abide by and comply with the award rendered in such dispute.
(2) Diplomatic protection, for the purposes of paragraph (1), shall not include
informal diplomatic exchanges for the sole purpose of facilitating a settlement of
the dispute.

It is clear from Article 25(1) that the Convention envisages direct par-
ticipation by foreign investors as parties to the dispute, without requiring
the consent of or espousal of their claim by the state of nationality –
although the investor’s state of nationality must be a party to the Conven-
tion as well as the relevant bilateral or multilateral investment treaty.135
Article 26 waives the requirement to exhaust local remedies, if it would
otherwise apply, in circumstances where ICSID arbitration is chosen as
the dispute settlement method, unless express provision for application
of the rule is made in the BIT or otherwise in the arrangements between
the parties to the dispute. Article 27 amounts to an express agreement
among parties to the Convention that they will suspend their own rights
to claim in respect of disputes that have been submitted to ICSID arbi-
tration by their nationals and other states parties to the ICSID Conven-
tion, including their right to initiate diplomatic protection.136
Provisions allowing for direct investor-state arbitration have become
commonplace in BITs, and it is seen as the mechanism of choice for
aggrieved foreign investors.137 There is a wide variety of different

135
Claims can also be brought directly under investment contracts, provided the state of
the investor’s actual or deemed nationality is a party to the ICSID Convention and the
contract so provides: see e.g. the 2012 US Model BIT, available at www.state.gov/
documents/organization/188371.pdf, Art. 24. See further Crawford (2008).
136
See further Schreuer (2001), 82–414; Juratowitch (2008), 14–22.
137
Juratowitch (2008), 11.
590 the implementation of responsibility

methods available for dispute settlement – ICSID arbitration, ad hoc

arbitration (whether under the United Nations Commission on Inter-
national Trade Law (UNCITRAL) Rules or another set of institutional
rules), or arbitration through the Court of Arbitration of the Inter-
national Chamber of Commerce. Some treaties specify a default form
of arbitration; in others the states will agree in advance to certain forms
and leave the choice to the investor. Either way, as the ADP commentary
observes, the dispute settlement procedures provided for in ICSID and in
BITs offer significant advantages for foreign investors over the custom-
ary international law system of diplomatic protection:
[T]hey give the investor direct access to international arbitration, avoid the
political uncertainty inherent in the discretionary nature of diplomatic protec-
tion and dispense with the conditions for the exercise of diplomatic
protection.138

On rare occasions, however, a state may choose to resort to diplomatic

protection following injury to one of its nationals, raising questions
about the interface between the national’s right to commence investor-
state arbitration and the state’s right to initiate a diplomatic protection
claim or other interstate procedures.139 The short answer would seem to
be that respondent states should be protected from double recovery, and
any conflict between the two rights should be resolved according to the
terms of the treaty in question, which might provide for interstate
dispute settlement alongside investor-state arbitration, or might follow
ICSID in excluding diplomatic protection.140 In effect, a modern bilateral
investment treaty disaggregates the legal interests that were clumped
together under the Mavrommatis formula.141

138
ADP Commentary, Art. 17, §2. Note, however, that it is not necessarily the case that all
BITs dispense with the conditions for the exercise of diplomatic protection; waiver
cannot lightly be presumed. Nationality of a state party to the treaty is required, and in
some cases the BIT will specify that local remedies must be exhausted before resort to
international arbitration, or will provide this as an option for the investor. See further
Amerasinghe (2008), 334–41.
139
See Juratowitch (2008).
140
For discussion of examples see ibid., 14–22. A rather different scenario presents itself in
Ecuador v. US, PCA Case No. 2012–5: Ecuador has commenced arbitration proceedings
against the United States alleging a dispute between the two states over the
interpretation of Art. II(7) of the United States–Ecuador BIT. The allegedly disputed
interpretation was set out in a partial award issued in a separate arbitration, brought
against Ecuador by two US investors (see Chevron Corp and Texaco Petroleum Co. v. Ecuador,
PCA Case No. 34877, Partial Award on the Merits, 30 March 2011).
141
For expansion of this idea see Crawford, (2002) 96 AJIL 874, 887–8.
 diplomatic and functional protection 591

In practice, some treaties will make provision for the interplay

between diplomatic protection and investment arbitration, others will
not. Generally this has not given rise to much difficulty, because despite
the boom in investor-state arbitration triggered by the emergence of
thousands of BITs, the interstate dispute resolution procedures in those
treaties have largely been ignored.142 One exception is the decision of
the arbitral tribunal in the Italy–Cuba arbitration, the first known
award in an interstate dispute arising under a BIT in circumstances
when investor-state arbitration would have been an alternative option
according to the treaty.143 Italy relied on its ‘double standing’ (double
légitimation) to commence ad hoc arbitration proceedings against
Cuba, being its own direct right to claim under interstate dispute
settlement provisions in the BIT, as well as its right to espouse the
claims of the sixteen Italian complainant companies through diplo-
matic protection.144
At the interim stage the tribunal rejected Cuba’s objection that the
existence of individual rights on the part of the companies to pursue
their own claims meant that Italy’s right to initiate a diplomatic
protection claim was excluded by the BIT; it found that by analogy
with ICSID Article 27, diplomatic protection would only be barred if
the investors had consented to submit their own disputes to arbitra-
tion.145 The tribunal reached this conclusion notwithstanding the fact
that Cuba is not a party to the ICSID Convention and the BIT provided
for ad hoc, not ICSID, arbitration. This represents a helpful solution to
the question of how to co-ordinate the different dispute settlement
mechanisms available under BITs, though it could hardly be said that
it reflects the lex lata on this point.146 A further objection on the
question of local remedies was also rejected, the tribunal making a
distinction between the claim Italy brought it in its own right and its
diplomatic protection claim on behalf of the injured companies;
exhaustion of local remedies was not required as a prerequisite for
the first claim, but it was for the second, as nothing in the BIT
suggested that the parties had waived the requirement to exhaust local
remedies for the purposes of diplomatic protection. The tribunal left
the consideration of whether local remedies had in fact been exhausted

142
Potestà (2012), 344.
143
Italy v. Cuba, Interim Award, 15 March 2005 and Final Award, 15 January 2008. See
Potestà (2012).
144 145
Italy v. Cuba, Interim Award, 15 March 2005, §25. Ibid., §65.
146
Potestà (2012), 346.
592 the implementation of responsibility

for the merits.147 Ultimately, in its final award, the tribunal dismissed
all the claims that Italy had pursued to the merits stage.
In summary, while developments in the field of investment protection
have certainly reduced the need to resort to diplomatic protection, it
cannot be said that such protection is now redundant.148 There are still a
number of situations that can be envisaged in which diplomatic protec-
tion might remain the most effective, or indeed only, remedy for an
injury to private persons investing in foreign states:
Although investment treaties are now plentiful, there are still (a) bilateral rela-
tionships that are not covered by such treaties, (b) bilateral relationships that,
although covered by such treaties, do not provide an individual ability for
investors to bring a claim against the host State, and (c) bilateral relationships
that, although governed by an investment treaty providing for investor-State
arbitration, do not cover the full range of disputes that may arise.149

18.3.3 Other fields

A further important area in which international law has recognized the
rights of individual persons is in connection with diplomatic and consu-
lar relations.150 There is no individual right of invocation in this context,
however; the substantive rights of the victims may be asserted by the
state on their behalf.
In the LaGrand case, the Court was faced with a dispute over whether
rights of consular notification and access under the Vienna Convention
on Consular Relations151 amount to human rights, as Germany con-
tended, or to rights of states, as the United States argued. Without
making a decision on whether the rights had assumed the character of
a human right, the Court held that Article 36(1) created individual rights
which could be invoked by the national state of the detained person,
finding that ‘[t]he clarity of these provisions, viewed in their context,
admits of no doubt’.152
The relationship between individual rights and the rights of
states arose in this context again in the Avena case.153 Mexico argued
that the alleged infringement of the rights of its nationals had
147
Italy v. Cuba, Interim Award, 15 March 2005, §§89–91.
148 149 150
Juratowitch (2008), 27–33 Ibid., 27. See ADP Commentary, Art. 16, §4.
151
22 April 1963, 596 UNTS 261.
152
LaGrand, ICJ Rep. 2001 p. 466, 492–4. It followed from this conclusion that Art. 36(2)
also applied to the rights of the individual as well as the rights of the sending state:
ibid., 497.
153
Avena, ICJ Rep. 2004 p. 12.
 diplomatic and functional protection 593

also violated its own rights as a state. Referring to its finding in

LaGrand, the Court further observed
that violations of the rights of the individual under Article 36 may entail a
violation of the rights of the sending State, and that violations of the rights of
the latter may entail a violation of the rights of the individual. In these special
circumstances of interdependence of the rights of the State, and of individual
rights, Mexico may, in submitting a claim in its own name, request the Court to
rule on the violation of rights which it claims to have suffered both directly and
through the violation of individual rights conferred on Mexican nationals under
Article 36, paragraph 1(b). The duty to exhaust local remedies does not apply to
such a request. Further, for reasons just explained, the Court does not find it
necessary to deal with Mexico’s claims of violation under a distinct heading of
diplomatic protection.154

This implies that if Mexico was not asserting its own rights, the victims
would have been required to comply with the rule, which in turn
suggests that the Court saw the situation as one of diplomatic protection,
despite its concluding observation, rather than consular assistance. In
practice it can be difficult to distinguish between them, but in circum-
stances of consular assistance, the local remedies rule would not
apply.155 In the Diallo case, the Court did not have cause to examine
the local remedies question in connection with Guinea’s allegations that
the DRC had violated Mr Diallo’s rights under the Vienna Convention,156
but it did ultimately find a violation of Article 36(1)(b) on the merits.157

18.4 Functional protection by international organizations

and third states
The ILC noted that similarities exist between diplomatic protection and
the doctrine of functional protection, but these are outweighed by import-
ant differences in the rationale and purpose behind each institution, with
the result that functional protection is not covered by the ADP.158 The
introduction to the ADP commentary makes the distinction clear:
Diplomatic protection is traditionally a mechanism designed to secure reparation
for injury to the national of a State premised largely on the principle that an

154 155
Ibid., 35–6. ADP Commentary, Art. 1, §§9–11.
156
Diallo, Preliminary Objections, ICJ, 24 May 2007, §45.
157
Ahmadou Sadio Diallo (Guinea v. DRC), ICJ, 30 November 2010, §§90–7.
158
ADP Commentary, 23–4, §3. Functional protection is not ruled out, however, by its
exclusion from the ADP; see Art. 16.
594 the implementation of responsibility

injury to a national is an injury to the State itself. Functional protection, on the

other hand, is an institution for promoting the efficient functioning of an
international organization by ensuring respect for its agents and their
independence.159

Diplomatic protection is founded on a link of allegiance, through

nationality, whereas it would be a strain to say that functional protection
is based on a similar bond.160 Instead, as the name suggests, it is founded
on concerns in respect of the organization’s ability to fulfil its functions,
and the need to ensure both the security of the agent and the independ-
ence of the organization.161 A further distinction between diplomatic
protection and functional protection is that where the former is recog-
nized as a right or entitlement of the state, the latter is closer to a duty
on the part of the international organization to protect its agents, which
may even extend to a possible obligation of prevention if the agent finds
himself or herself in a difficult situation which has not yet resulted in
actual injury.162
The key source of the capacity to exercise functional protection is the
separate legal personality of the international organization, as recog-
nized by the International Court in Reparation for Injuries Suffered in the
Service of the United Nations.163 On the question of whether the UN had
capacity to bring a claim against a responsible government for injury
suffered by an agent, the Court held that it did,164 and observed:
[I]n order that the agent may perform his duties satisfactorily, he must feel that
this protection is assured to him by the Organization, and that he may count on
it. To ensure the independence of the agent, and, consequently, the independent
action of the Organization itself, it is essential that in performing his duties he
need not have to rely on any other protection than that of the Organization (save
of course for the more direct and immediate protection due from the State in
whose territory he may be). In particular, he should not have to rely on the
protection of his own State. If he had to rely on that State, his independence
might well be compromised, contrary to the principle applied by Article 100 of
the Charter.165

Since 1949, international law has developed to recognize that other

international organizations besides the UN also enjoy independent legal
personality, although the standing to claim against a responsible state in

159
Ibid. See further Benlolo Carabot and Ubéda-Saillard (2010), 1076–7.
160
Reparation for Injuries, ICJ Rep. 1949 p. 174, 182.
161 162
Benlolo Carabot and Ubéda-Saillard (2010), 1074–5. Ibid., 1076.
163 164 165
ICJ Rep. 1949 p. 174. Ibid., 187. Ibid., 183.
 diplomatic and functional protection 595

exercise of functional protection for injury to its agents will depend on

the constitutive instrument of each organization.166 The Court has taken
a liberal view of the term ‘agent’ as ‘any person through whom [the
organization] acts’.167 As for the conditions ratione materiae for the exer-
cise of functional protection, the general rule is that activities carried out
in the official service of the organization and performance of the mission
will be covered, whereas private acts of agents will not (although they
might still be covered by diplomatic protection of citizens abroad,
depending on the circumstances).168 The determination whether an
agent has acted in the course of the performance of his or her mission
depends on the facts of the particular case.169 Functional protection will
only be extended to an agent where that protection is necessary.170
Although the Court stated in Reparations that an agent should not have
to rely on the protection of his or her state of nationality, the doctrine of
functional protection does not prevent that state from exercising its
right to offer diplomatic protection; nor is there any rule of international
law that assigns priority to the claim of either the state or the organiza-
tion. The Court commented that it saw ‘no reason why the parties
concerned should not find solutions inspired by goodwill and common
sense’.171 In practice, the concurrent implementation of diplomatic and
functional protection in relation to the same incident can cause difficul-
ties. These difficulties are sometimes pre-empted by treaty provisions
regulating how claims should be managed.172
Problems may also arise if the agent is a national of the responsible
state; while this is not pertinent to admissibility in the context of func-
tional protection and does not constitute an obstacle to the claim,173
examples such as the detention of a Polish agent and Poland’s

166
On the law of international organizations see generally Sands and Klein, Bowett’s Law of
International Institutions (6th edn, 2009); Amerasinghe (2005); Brownlie’s Principles, ch. 7.
167
ICJ Rep. 1949 p. 174, 177. See further Benlolo Carabot and Ubéda-Saillard (2010),
1078–9.
168
Ibid., 1079–80.
169
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on
Human Rights, ICJ Rep. 1999 p. 62, 85.
170
The Jurado case, (1964) 40 ILR 296, is discussed as an example in which protection would
have been ‘totally unjustified’, and was rightly rejected by the International Labour
Organization, in Meron, (1980) 167 Hague Recueil 289, 335.
171
Ibid., 185–6.
172
E.g. Convention on the International Liability for Damage Caused by Space Objects,
29 March 1972, 961 UNTS 187, Art. IX. See further Benlolo Carabot and Ubéda-Saillard
(2010), 1081–3.
173
Reparation for Injuries, ICJ Rep. 1949 p. 174, 186.
596 the implementation of responsibility

subsequent refusal to co-operate in the Wesolowska case illustrate the

issues that can arise on a practical level.174
Finally, in cases where the respondent is not a member state of the
organization, it would only be in limited cases that the non-member
state would owe specific duties to the organization and thus be respon-
sible for a breach. The Court did not discuss the basis on which such a
claim might successfully be brought, and once again it will depend on
the particular facts whether a valid functional protection claim could be
brought against a non-member state by an international organization.175
Besides diplomatic protection by the national state, and functional
protection by an international organization, questions may also arise
over whether a state can exercise functional protection on behalf of a
non-national – for example, an alien serving as a member of its armed
forces or diplomatic corps.176 Similar considerations apply to ships’
crews: ADP Article 18 recognizes that both the state of nationality of
crew members and the flag state of the ship have the right to exercise
protection.177
Various mechanisms exist in international law whereby a state may
protect a non-national against the internationally wrongful act of
another state.178 As noted in the ADP commentary, interstate proceed-
ings are available under a variety of treaties without the requirement of
nationality, for example the ICCPR,179 the International Convention on
the Elimination of All Forms of Racial Discrimination,180 the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,181 the European Convention for the Protection of Human
Rights and Fundamental Freedoms,182 the American Convention on
Human Rights,183 and the African Charter on Human and Peoples’
Rights.184
In terms of general international law, the International Court in
the South West Africa cases stated that the equivalent of an ‘actio
popularis’, or right resident in any member of a community to take
legal action in vindication of a public interest, was not known to

174
See the discussion in Meron, (1980) 167 Hague Recueil 289, 334–7.
175 176
See Amerasinghe (2005), 392–3. See ILC Ybk 2002/I, 226.
177 178
ADP Commentary, Art. 18. See further ibid., Art. 16, §2.
179
16 December 1966, 999 UNTS 171, Art. 41.
180
21 December 1965, 660 UNTS 195, Art. 11.
181 182
10 December 1984, 1465 UNTS 85, Art. 21. Art. 24.
183
22 November 1969, 1144 UNTS 123, Art. 45.
184
27 June 1981, 1520 UNTS 217, Arts. 47–54.
 diplomatic and functional protection 597

international law.185 This notion that a state cannot bring legal proceed-
ings in protection of non-nationals has since been qualified by ARSIWA
Article 48, which permit states to invoke state responsibility in the event
of a breach of communitarian norms, without having to satisfy the
requirements of nationality and exhaustion in the law of diplomatic
protection.186 Notably, ARSIWA Article 48(2)(b) provides that states
entitled under Article 48(1) may claim reparation for the breach of an
obligation erga omnes ‘in the interest of the injured state or of the benefi-
ciaries of the obligation breached’ (emphasis added). This implies that a state
may invoke state responsibility and call for reparation on behalf of non-
state actors, although Article 48(2)(b) by its own terms can do no more
than set out a general principle in this respect.187
On the whole, however, the dicta of the Court in the South West Africa
cases remain relevant – in the absence of some special factor, such as an
arrangement of agency, a sui generis treaty regime or the breach of a
communitarian norm, a state does not have a general right to bring a
claim of state responsibility with respect to a non-national.188

185
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, ICJ Rep.
1966 p. 6, 47.
186
See ARSIWA and Commentary, Art. 48(1). See also Chapter 11.
187
See ARSIWA Commentary, Art. 48, §12. On the relationship between diplomatic
protection and invocation of responsibility for violation of obligations erga omnes, see
further Vermeer-Künzli (2007).
188
Cf. ILC Ybk 2006/I, 283 (Pellet).
19 Implementation of responsibility
by judicial process

19.1 Introduction
This chapter addresses certain issues concerning the jurisdiction of
international courts and tribunals and their implementation of responsi-
bility. The next section sets out the Chorzów Factory principle and exam-
ines some possible implications of it. For example, does it apply in
reverse – can the principle be applied to cases where a tribunal has been
asked to decide on compensation for expropriation without having been
given explicit jurisdiction to determine whether an expropriation has
taken place? The discretion of judicial bodies in awarding remedies is
tackled in the third section. The Chorzów Factory principle of full repar-
ation is normally stated in terms of obligation, yet the practice of inter-
national courts and tribunals comes close to supporting the idea of a
discretion to decide among appropriate remedies. The fourth section
addresses certain issues related to the election of remedies. If the Chorzów
Factory principle embodies an entitlement, it is nonetheless one which
depends in practice on choices made by the claimant. Illustrations
include the claimant’s right to elect the form of remedy, election of
remedies in the course of proceedings, fork-in-the-road clauses and the
non ultra petita rule. Taken together all three elements reveal a much
more flexible situation than orthodox statements of the principle might
suggest. There are also situations in which the Chorzów Factory principle
appears to be not merely qualified, but effectively abandoned. These
situations involve mass claims, instances in which claims are brought
by a large number of claimants and where there are limited funds avail-
able to pay them. The variety of techniques that have been developed to
deal with these situations will be reviewed in the final section.

598
 implementation by judicial process 599

19.2 Jurisdiction in matters of responsibility

19.2.1 The Chorzów principle
As every international law student is told, the principle that jurisdiction
to determine a breach implies jurisdiction to award compensation was
articulated in general terms by the Permanent Court in the Chorzów
Factory case.1 The Court found:
The decision whether there has been a breach of an engagement involves no
doubt a more important jurisdiction than a decision as to the nature or extent of
reparation due for a breach of an international engagement the existence of
which is already established. If Article 23, paragraph 1 [of the Convention
concerning Upper Silesia], covers the disputes mentioned in the first and third
categories [of Article 36 of the PCIJ Statute], it would be difficult to understand
why – failing an express provision to that effect – it should not cover the less
important disputes mentioned in the fourth category.2

The Court summed up its conclusion in the subsequent judgment on

the merits: ‘jurisdiction as to the reparation due for the violation of an
international convention involves jurisdiction as to the forms and
methods of the reparation’.3
This principle is now firmly established. For example, in LaGrand the
International Court recalled that ‘[w]here jurisdiction exists over a dis-
pute on a particular matter, no separate basis for jurisdiction is required

1
Factory at Chorzów, Jurisdiction, (1927) PCIJ Ser. A No. 9.
2
Ibid., 23. Art. 23(1) of the Convention concerning Upper Silesia between Germany and
Poland, Geneva, 15 May 1922, 9 LNTS 465, stated:
Si des divergences d’opinion, résultant de l’interprétation et de l’application des
articles 6 à 22, s’élevaient entre le Gouvernement allemand et le Gouvernement
polonais, elles seraient soumises à la décision de la Cour permanente de
Justice internationale.
Translation by the PCIJ: ‘Should differences of opinion, resulting from the interpretation
and the application of Articles 6 to 22, arise between the German and the Polish
Governments, they should be submitted to the decision of the Permanent Court of
International Justice.’ Art. 36 of the PCIJ Statute provided inter alia that:
The Members of the League of Nations and the States mentioned in Annex C to
the Covenant may . . . declare that they recognize as compulsory ipso facto and
without special agreement . . . the jurisdiction of the Court in all or any of the
classes of legal disputes concerning:
...
(c) the existence of any fact which, if established, would constitute a breach of
an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international obligation.
3
Factory at Chorzów, (1928) PCIJ Ser. A No. 17, 61.
600 the implementation of responsibility

by the Court to consider the remedies a party has requested for the
breach of the obligation.’4
It may be asked whether the principle works the other way around.
The question has arisen in the context of investment protection: when a
tribunal has jurisdiction to determine compensation for expropriation,
does it also have jurisdiction to determine whether expropriation has
taken place?
This question came up in the jurisdictional phase of RosInvestCo UK v.
Russia in 2007.5 The case concerned the expropriation in 2004 of a
leading oil company, Yukos, in which the British corporation RosIn-
vestCo owned seven million shares. The relevant jurisdictional provision,
Article 8, of the UK–Soviet BIT read as follows:
This Article shall apply to any legal disputes between an investor of one Contract-
ing Party and the other Contracting Party in relation to an investment of the
former either concerning the amount or payment of compensation under Art-
icles 4 or 5 of this Agreement, or concerning any other matter consequential
upon an act of expropriation in accordance with Article 5 of this Agreement . . .6

The first paragraph of Article 8 was found by the tribunal to include

three jurisdictional clauses:
1. the amount or payment of compensation under Articles 4 or 5 of this
Agreement,
2. or concerning any other matter consequential upon an act of expropriation
in accordance with Article 5 of this Agreement
3. or concerning the consequences of the non-implementation, or of the incor-
rect implementation, of Article 6 of this Agreement.7

The claimant argued that Article 8 conferred jurisdiction on the tribunal

to determine whether an expropriation had taken place. Specifically, it
argued that the phrase ‘any other matter’ ‘must necessarily give the
tribunal jurisdiction over disputes that are in addition to those covered
by the First Jurisdictional Clause’.8 Moreover, it argued that interpreting
the subject-matter jurisdiction as excluding the power to decide on

4
LaGrand (Germany v. US), ICJ Rep. 2001 p. 466, 485.
5
RosInvestCo UK Ltd v. Russia, Award on Jurisdiction, October 2007, available at ita.law.uvic.
ca/documents/RosInvestjurisdiction_decision_2007_10_000.pdf.
6
Agreement between the Government of the United Kingdom of Great Britain and
Northern Ireland and the Government of the Union of Soviet Socialist Republics for the
Promotion and Reciprocal Protection of Investments, 6 April 1989, available at www.
unctad.org/sections/dite/iia/docs/bits/uk_ussr.pdf.
7 8
RosInvestCo, Award on Jurisdiction, October 2007, §108. Ibid., §92.
 implementation by judicial process 601

expropriations would render ‘any decision to pay compensation entirely

within the discretion of the Russian authorities’ and make the protection
given to UK investors ‘illusory’.9
Russia denied that subject-matter jurisdiction under Article 8 ‘encom-
passed ‘the power to determine whether there was an expropriation and
if so, its legality’.10 In its view, ‘the Tribunal only has jurisdiction when
the alleged expropriation is acknowledged, in particular through an
agreement to refer a dispute concerning the amount of compensation
to arbitration, or determined otherwise, for example by a Russian court
or an act of [the] legislature’.11
The tribunal held that under the ordinary meaning of the first juris-
dictional clause of Article 8 of the UK–Soviet BIT, the qualification by the
words ‘concerning the amount or payment of compensation’, ‘can only
be understood as a limitation of the jurisdiction conferred by that
clause’.12 Contrasting this limitation with arbitration clauses in other
BITs entered into by the United Kingdom or Russia, the tribunal con-
cluded that the exclusion of the question whether expropriation
occurred and was lawful from the scope of the jurisdictional clause
was intentional. Turning to the second jurisdictional clause, the tribunal
again rejected the Claimant’s position, holding that ‘such an interpret-
ation would deprive the wording “or concerning any other matter con-
sequential upon” . . . of any substantial meaning’.13 As the tribunal found
the wording of Article 8 to be perfectly clear, it found no need to address
additional or supplementary criteria for interpretation. It thus con-
cluded that ‘it ha[d] no jurisdiction as to the occurrence and validity of
an expropriation on the basis of Article 8’. It went on, however, to
uphold its jurisdiction on the basis of the most-favoured-nation clause
in Article 3(2) of the UK–Soviet BIT in conjunction with the
Denmark–Russia BIT.14
This decision can be compared with the earlier Berschader arbitration,
between Belgian investors and Russia.15 Article 10(1) of the Belgium/
Luxemburg–Soviet BIT provided as follows:
Any dispute between one Contracting Party and an investor of the other Con-
tracting Party concerning the amount or mode of compensation to be paid under
Article 5 [dealing with expropriation] of the present Treaty shall be the subject of

9 10 11
Ibid., §94. Ibid., §76. Ibid., §78.
12 13 14
Ibid., §110. Ibid., §115. Ibid., §132.
15
Vladimir Berschader and Moïse Berschader v. Russia, Award on Jurisdiction, 21 April 2006,
available at ita.law.uvic.ca/documents/BerschaderFinalAward.pdf.
602 the implementation of responsibility

a written notice, accompanied by a detailed memorandum, to be submitted by

the investor to the Contracting Party involved in the dispute.16

Here, too, the Claimant argued that the jurisdictional clause in Article
10 conferred jurisdiction on the tribunal to determine whether an expro-
priation had taken place and whether it was lawful.17 The tribunal held
summarily that the wording of Article 10.1 ‘expressly limits the type of
dispute, which may be subjected to arbitration under the Treaty, to a
dispute concerning the amount or mode of compensation to be paid
in the event of an expropriatory act occurring under the terms of
Article 5’.18 The tribunal went on (by majority) to reject an argument
for jurisdiction based on a most-favoured-nation clause. Both tribunals,
however, rejected the argument that jurisdiction to determine compen-
sation for expropriation entails jurisdiction to determine whether expro-
priation has taken place.
The contrary argument was, however, accepted in two more recent
decisions, European Media Ventures19 and Renta v. Russia.20 In the former
case, Article 8(1) of the Belgium/Luxembourg–Czech Republic BIT
granted the tribunal jurisdiction over disputes ‘concerning compensa-
tion due by virtue of [the Articles of the BIT dealing with expropriation]’.
The tribunal held that this wording did limit its jurisdiction, but its
jurisdiction to award forms of relief other than compensation, not its
jurisdiction to determine whether an expropriation had taken place.
An application to set aside the award before the English High Court
was dismissed by Simon J.21 Although he concluded that Article 8(1)
did confer jurisdiction to determine whether an expropriation had
taken place, he was very doubtful that the parties had intended by the

16
Treaty between the Governments of the Kingdom of Belgium and the Grand Duchy of
Luxembourg, and the Government of the Union of Soviet Socialist Republics on the
Promotion and Mutual Protection of Investments, Moscow, 9 February 1989, available at
www.unctad.org/sections/dite/iia/docs/bits/belg_lux_usssr_fr.pdf. Unofficial translations
are included in the Award.
17
Agreement between the Government of the Kingdom of Norway and the Government of
the Russian Federation on Promotion and Mutual Protection of Investments, 4 October
1995, available at www.unctad.org/sections/dite/iia/docs/bits/norway_russia.pdf.
18
Berschader, Award on Jurisdiction, 21 April 2006, §152.
19
European Media Ventures SA v. Czech Republic, Award on Jurisdiction, 15 May 2007, not
public. See Douglas (2009), 253–5. The subsequent Award of 8 July 2009 is also not
public.
20
Renta 4 SVSA et al. v. Russia, SCC No. 24/2007, Award on Preliminary Objections, 20 March
2009, available at www.italaw.com/cases/documents/916.
21
Czech Republic v. European Media Ventures SA, [2007] EWHC 2851 (Comm.).
 implementation by judicial process 603

wording chosen to exclude from jurisdiction claims for forms of

relief other than compensation.22
Renta v. Russia also concerned a claim related to the expropriation of
Yukos. The claim was brought pursuant to Article 10 of the Russian
Federation–Spain BIT, which granted jurisdiction ‘relating to the amount
or method of compensation due under Article 6 of the [BIT]’. The tribunal
based its conclusion on a textual analysis of Article 10; it reasoned:
The plainest proposition to be derived from Article 10(1) is that it allows arbitra-
tion with respect to debates about the amount or method of such compensation
as may be due under Article 6. The difficulty begins precisely once one asks: Who
determines whether compensation is indeed ‘due’ under Article 6? . . . Article 10
gives an investor the right to seek arbitration with respect to ‘[a]ny dispute . . .
relating to the amount or method of payment of the compensation due under
Article 6’. The Claimants allege expropriation. Russia denies any obligation under
this head. There is therefore a dispute as to whether compensation is ‘due’. The
force of this simple proposition is buttressed by the open texture of the introduc-
tory words: any disputes . . . relating to.23

It is hard to distinguish these two lines of decisions purely on the

wording of the jurisdictional clause under consideration. The tribunal’s
reasoning in Renta v. Russia could equally be applied to the phrase ‘com-
pensation to be paid’ in the jurisdiction clause considered in Berschader.
The consequence of interpreting such clauses as not entailing jurisdiction
to determine whether expropriation has taken place is that a state may
avoid paying compensation for an expropriation by denying, however
implausibly, that an expropriation has taken place, leaving the investor
without a remedy. On the other hand, allowing for a widening of the
scope of jurisdiction by means of liberal interpretation could go against
the will of the drafters of the instrument in question. For example, there
is evidence to suggest that the parties intended Article 8(1) of the
Belgium/Luxembourg–Czech Republic BIT to restrict the jurisdiction of
tribunals to matters relating to the amount of compensation.24

19.2.2 The distinction between cause of action and applicable law

In the implementation of responsibility by courts and tribunals, the
distinction between cause of action and applicable law has sometimes
been muddled. A salient question is whether, when a tribunal has
22
[2007] EWHC 2851 (Comm.), §51.
23
Renta, SCC No. 24/2007, Award on Preliminary Objections, 20 March 2009, §28 (emphasis
in original).
24
Douglas (2009), 254–5.
604 the implementation of responsibility

jurisdiction over a dispute on the basis of a treaty, it can answer ques-

tions having no basis in the treaty but nonetheless related to the dispute.
This question was addressed by the MOX Plant Annex VII tribunal, after
the United Kingdom had argued that the tribunal lacked jurisdiction
over its dispute with Ireland because Ireland had submitted the same
dispute to a tribunal of the Convention for the Protection of the Marine
Environment of the North-East Atlantic (OSPAR Convention) and was
potentially a party to related proceedings at the Court of Justice of the
European Communities. The United Kingdom based its case on Article
282 of the 1982 United Nations Convention on the Law of the Sea
(UNCLOS), which provides:
If the States Parties which are parties to a dispute concerning the interpretation
or application of this Convention have agreed, through a general, regional or
bilateral agreement or otherwise, that such dispute shall, at the request of any
party to the dispute, be submitted to a procedure that entails a binding decision,
that procedure shall apply in lieu of the procedures provided for in this Part,
unless the parties to the dispute otherwise agree.25

In its order on Ireland’s request for provisional measures, the tribunal

rejected this argument, stating that ‘even if the OSPAR Convention, the
EC Treaty and the Euratom Treaty contain rights or obligations similar to
or identical with the rights or obligations set out in the Convention, the
rights and obligations under those agreements have a separate existence
from those under the Convention’ and that ‘since the dispute before the
Annex VII arbitral tribunal concerns the interpretation or application of
the Convention and no other agreement, only the dispute settlement
procedures under the Convention are relevant to that dispute’.26 It
therefore found Article 282 to be inapplicable to the dispute under
consideration.
The question of the scope of the arbitral tribunal’s jurisdiction came
up in the next phase of the dispute. The United Kingdom maintained
that a large part of Ireland’s claim was based on the OSPAR Convention
and various EC directives, rather than on the Law of the Sea Convention,
and that these parts of the claim were therefore inadmissible. The
tribunal agreed that there was a ‘cardinal distinction’ between, on the
one hand, the scope of its jurisdiction under Article 288(1) of the Con-
vention and, on the other hand, the law the tribunal can apply according

25
10 December 1982, 1834 UNTS 3.
26
MOX Plant Case (Ireland v. UK), Order on Request for Provisional Measures, 3 December
2001, 126 ILR 259, 273–4.
 implementation by judicial process 605

to Article 293.27 Moreover, ‘to the extent that any aspects of Ireland’s
claims arise directly under legal instruments other than the Convention,
such claims may be inadmissible’.28 The tribunal found, however, that
Ireland’s case did arise substantially under the Convention.
A similar conclusion was reached by the OSPAR tribunal to which one
aspect of the same dispute was submitted: that ‘the competence of a
tribunal established under the OSPAR Convention was not intended to
extend to obligations the Parties might have under other instruments
(unless, of course, parts of the OSPAR Convention included a direct renvoi
to such other instruments)’.29 The tribunal went on to say:
Interpreting Article 32(6)(a) otherwise would transform it into an unqualified
and comprehensive jurisdictional regime, in which there would be no limit
ratione materiae to the jurisdiction of a tribunal established under the OSPAR
Convention. Here, there is no indication that the Parties to the OSPAR Conven-
tion have, in their individual capacities, submitted themselves to such a compre-
hensive jurisdictional regime with respect to any other international tribunal.
Nor is it reasonable to suppose that they would have accepted such a jurisdic-
tional regime through the vehicle of the OSPAR Convention.30

These tribunals both rejected the proposition that tribunals established

under a treaty can decide on claims based on obligations originating
from other treaties.
A different view was taken by the Annex VII Tribunal in Guyana/
Suriname.31 This arbitration essentially concerned the delimitation of a
single maritime boundary between the two states. In addition, Guyana
claimed that Suriname was internationally responsible for an incident
27
MOX Plant Case (Ireland v. UK), Order No. 3 (Suspension of Proceedings on Jurisdiction and
Merits, and Request for Further Provisional Measures), 24 June 2003, 126 ILR 314, 318.
Art. 288(1) states that ‘[a] court or tribunal referred to in article 287 shall have
jurisdiction over any dispute concerning the interpretation or application of this
Convention which is submitted to it in accordance with this Part.’ Art. 293(1) provides
that ‘[a] court or tribunal having jurisdiction under this section shall apply this
Convention and other rules of international law not incompatible with this Convention.’
28
Ibid.
29
Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v. UK),
Final Award, 2 July 2003, 126 ILR 334, 364.
30
Convention for the Protection of the Marine Environment of the North-East Atlantic, 25
March 1998, (1993) 32 ILM 1069 (OSPAR Convention), Art. 32(6)(a) provides that ‘[t]he
decisions of the arbitral tribunal, both on procedure and on substance, shall be taken by
majority voting of its members’. It is possible that the arbitral tribunal was in fact
referring to Art. 32(5)(a), which states that ‘[t]he arbitral tribunal shall decide according
to the rules of international law and, in particular, those of the Convention.’
31
Guyana/Suriname, Award on the Merits, 17 September 2007, available at www.pca-cpa.org/
upload/files/Guyana-Suriname%20Award.pdf.
606 the implementation of responsibility

which had occurred with an exploratory rig and drill ship licensed by
Guyana, the CE Thornton. This ship was engaged in exploratory activities
when, on 2 June 2000, it was approached by the Surinamese Navy, which
ordered it to leave, alleging that the ship was within Surinamese waters.
The naval ships warned that if the CE Thornton did not comply within
twelve hours, ‘the consequences would be theirs’.32 The crew of the CE
Thornton interpreted this as a warning that force would be used, and left
the area. The Surinamese captains in command of the naval ships
insisted that they were not under orders to use force, and had no intention
to do so. Guyana claimed that Suriname’s conduct had amounted to the
unlawful threat or use of armed force, in violation of the UN Charter and
customary international law. Suriname argued that these claims had no
basis in the Law of the Sea Convention and were therefore inadmissible.
The tribunal, in agreement with Guyana, decided it had jurisdiction to
consider the use of force claims.33 To support this conclusion, the tribu-
nal quoted from the Preamble of the Convention, which affirms ‘that
matters not regulated by this Convention continue to be governed by the
rules and principles of general international law’, and it cited the find-
ings of the International Tribunal for the Law of the Sea (ITLOS) in the
M/V Saiga (No. 2) case:
In considering the force used by Guinea in the arrest of the Saiga, the Tribunal
must take into account the circumstances of the arrest in the context of the
applicable rules of international law. Although the Convention does not contain
express provisions on the use of force in the arrest of ships, international law,
which is applicable by virtue of article 293 of the Convention, requires that the
use of force must be avoided as far as possible and, where force is unavoidable, it
must not go beyond what is reasonable and necessary in the circumstances.
Considerations of humanity must apply in the law of the sea, as they do in other
areas of international law.34

Apart from approving of this passage, the tribunal did not advance any
basis for its decision. The tribunal did find that Suriname’s conduct
constituted a breach of Articles 74(3) and 83(3) of the Convention, on
the delimitation of the exclusive economic zone (EEZ) and the continental
shelf respectively, but these provisions hardly concern the use of force.35

32 33
Ibid., §436. Ibid., §406.
34
The M/V Saiga (No. 2) Case (St Vincent and the Grenadines v. Guinea), Admissibility and Merits,
1 July 1999, 120 ILR 143, 196.
35
Both provisions read: ‘Pending agreement as provided for in paragraph 1, the States
concerned, in a spirit of understanding and cooperation, shall make every effort to enter
into provisional arrangements of a practical nature and, during this transitional period,
 implementation by judicial process 607

It based its eventual finding that Suriname’s actions constituted an

unlawful threat or use of force solely on the UN Charter and customary
international law, again without any discussion of the content of these
obligations.
The tribunal’s invocation of the M/V Saiga (No. 2) case is misleading.
This was a prompt release case, and force was used in boarding the
vessel. The question of its legality thus related directly to the subject
matter of the dispute. Moreover, the tribunal based its condemnation of
the use of force on specific case law and on Article 22(1)(f) of the Strad-
dling Fish Stocks Agreement, which states:
1. The inspecting State shall ensure that its duly authorized inspectors:
...
(f) avoid the use of force except when and to the degree necessary to
ensure the safety of the inspectors and where the inspectors are
obstructed in the execution of their duties. The degree of force used
shall not exceed that reasonably required in the circumstances.36

Although this Agreement is separate from the 1982 Convention, it is

clearly related, and the question of the use of force was relevant for the
tribunal’s decision in that case. The same can hardly be said for the
Suriname/Guyana boundary delimitation.
It is clear that the approach taken by the MOX Plant and OSPAR tribu-
nals, as opposed to that taken by the Guyana/Suriname tribunal, must be
correct. This approach diminishes the likelihood of jurisdictional con-
flict between tribunals, as the tribunals limit themselves to determining
violations of the treaty under which they were established. There is a
distinction between jurisdiction to determine a dispute using all sources
of the applicable law and jurisdiction on the basis of a treaty. In the latter
case, courts and tribunals lack jurisdiction to decide on particular claims
not finding their basis in the treaty under consideration.
Where a court or tribunal has a limited jurisdictional grant, it none-
theless has inherent power to determine issues necessary for the deter-
mination of the question over which it has jurisdiction, such that its
grant of jurisdiction is effective. In the Namibia Advisory Opinion the

not to jeopardize or hamper the reaching of the final agreement. Such arrangements
shall be without prejudice to the final delimitation.’
36
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, 2167 UNTS 3, 4
August 1995. The Tribunal referred to the following cases: SS I’m Alone (Canada/US), (1935)
3 RIAA 1609; Red Crusader Report, (1962) 35 ILR 485.
608 the implementation of responsibility

Court considered that it had power to consider the conformity of General

Assembly and Security Council resolutions with the UN Charter, not-
withstanding that that question was outside the scope of the request for
the advisory opinion. South Africa had argued that in adopting reso-
lution 2145 (XXI) on the termination of the Mandate for South West
Africa, the General Assembly had acted ultra vires. The Court stated:
It was suggested that though the request was not directed to the question of
the validity of the General Assembly resolution and of the related Security
Council resolutions, this did not preclude the Court from making such an
enquiry. On the other hand it was contended that the Court was not authorized
by the terms of the request, in the light of the discussions preceding it, to go
into the validity of these resolutions . . . The question of the validity or conform-
ity with the Charter of General Assembly resolution 2145 (XXI) or of related
Security Council resolutions does not form the subject of the request for advis-
ory opinion. However, in the exercise of its judicial function and since objec-
tions have been advanced the Court, in the course of its reasoning, will consider
these objections before determining any legal consequences arising from those
resolutions.37

It is unclear how far this ‘incidental power’ of courts and tribunals

extends. In reaching the conclusion that it had jurisdiction to deter-
mine whether an expropriation had taken place, the tribunal in Renta
v. Russia reasoned that the ‘existence of the basic predicate of a remedy
under Article 10 cannot be deemed outside the purview of a tribunal
constituted under that very Article’.38 Given the consensual nature of
dispute settlement, where it is clear that it was the intention of the
parties to a BIT to exclude such a predicate from jurisdiction, that fact
should weigh against a tribunal exercising its power. The extent of the
power is particularly relevant for proceedings under UNCLOS. In
Guyana/Suriname the issue of whether the Annex VII tribunal had
jurisdiction to determine questions relating to the land boundary
between the parties was raised, but the tribunal held that it was
unnecessary to resolve the matter.39 The pending proceedings in Maur-
itius v. UK will likely raise the issue of whether the dispute settlement
provisions of UNCLOS empower a tribunal to resolve disputes over title
to land territory.40

37
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Rep. 1971 p. 16, 45.
38
Renta, SCC No. 24/2007, Award on Preliminary Objections, 20 March 2009, §31.
39
Guyana/Suriname, Award on the Merits, 17 September 2007, §308.
40
Prows, (2011) 15(8) ASIL Insights.
 implementation by judicial process 609

19.2.3 Jurisdiction over counterclaims

Another issue related to the jurisdiction of courts and tribunals to
implement responsibility is the scope of jurisdiction over counterclaims.
This is a question which has often arisen at the International Court, less
often before tribunals.
Counterclaims are not mentioned in the Statute, which means that the
Court’s law on the issue is judge-made.41 A provision regulating the
Court’s practice on counterclaims was included in Article 80 of the Rules
only in 1978. As amended in 2001, it reads:
1. The Court may entertain a counter-claim only if it comes within the jurisdic-
tion of the Court and is directly connected with the subject-matter of the claim of
the other party.
...
3. Where an objection is raised concerning the application of paragraph 1 or
whenever the Court deems necessary, the Court shall take its decision thereon
after hearing the parties.

The counterclaim must thus fall independently within the Court’s

jurisdiction and it must be admissible in the sense that it is sufficiently
closely connected to the primary claim. The Court will consider these
questions at the merits stage of the proceedings, after the respondent has
advanced one or more counterclaim in its counter-memorial. If the
applicant objects to the counterclaim or if the Court feels that it is not
adequately informed of the positions of the parties, it may hold a short
hearing on the matter. It will then issue an order assessing whether the
counterclaim meets the requirements of Article 80. If it does, the coun-
terclaim is included in the proceedings and the Court will go on to assess
any remaining issues of jurisdiction and admissibility in the merits
phase.
The Court was first faced with a counterclaim in the Asylum case.
Peru had asked the Court, by way of a counterclaim, to declare that
Colombia’s granting of asylum to Haya de la Torre violated the 1928
Convention on Asylum. The Court found that the counterclaim had
a ‘direct connexion’ to the primary claim and that it was thus
admissible.42 After discussion of the merits of the counterclaim,
the Court partially sustained it.

41
For a thorough discussion of counterclaims and the ICJ, see Rosenne, 2–3 The Law and
Practice of the International Court 1920–2005 (2006), 896–8, 1232–41.
42
Asylum (Colombia/Peru), ICJ Rep. 1950, 266, 281. The Court also approved the inclusion of
counterclaims in the proceedings in the Land and Maritime Boundary Dispute case,
610 the implementation of responsibility

The Court clarified its interpretation of Article 80 in its judgment on

the merits in Oil Platforms. It had previously found, in an order of 10
March 1998, that the United States’ counterclaim was admissible. The
United States had submitted ‘[t]hat in attacking vessels, laying mines in
the Gulf and otherwise engaging in military actions in 1987–88 that
were dangerous and detrimental to maritime commerce, the Islamic
Republic of Iran breached its obligations to the United States under
Article X of the 1955 Treaty [of Amity]’.43 The Court held that it was
open to Iran at the merits stage to contest the Court’s jurisdiction over
the counterclaims and their admissibility. The Court’s task in the
order ‘was only to verify whether or not the requirements laid down
by Article 80 of the Rules of Court were satisfied’ and the order therefore
did not address ‘any other question relating to jurisdiction and admissi-
bility, not directly linked to Article 80 of the Rules’.44 This was clear from
the wording of the order, which said that the counterclaim was admis-
sible ‘as such’.45 The Court therefore went on to consider Iran’s objec-
tions to the Court’s jurisdiction over and the admissibility of the
counterclaim, rejecting the objections and, subsequently, the merits of
the claim.
The Court set out a more detailed explanation of the law and proced-
ures regulating counterclaims in Bosnian Genocide. First, it clarified that
Whereas it is established that a counter-claim has a dual character in relation to
the claim of the other party; whereas a counter-claim is independent of the
principal claim in so far as it constitutes a separate ‘claim’, that is to say an
autonomous legal act the object of which is to submit a new claim to the Court,
and, whereas at the same time, it is linked to the principal claim, in so far as,
formulated as a ‘counter’ claim, it reacts to it; whereas the thrust of a counter-
claim is thus to widen the original subject-matter of the dispute by pursuing
objectives other than the mere dismissal of the claim of the Applicant in the
main proceedings – for example, that a finding be made against the Applicant;
and, whereas in this respect, the counter-claim is distinguishable from a defence
on the merits.46

although it found that it did not have to address the merits of the claims, as neither
party had sufficiently proved the facts it was alleging: Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria), Order, 30 June 1999, ICJ Rep. 1999 p. 983; Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea
intervening), ICJ Rep. 2002 p. 303, 453.
43 44
Oil Platforms (Iran v. US), ICJ Rep. 2003 p. 161, 208. Ibid., 210.
45
Oil Platforms (Iran v. US), Order on Counterclaims, ICJ Rep. 1998 p. 190, 206.
46
Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Order on Counterclaims, [1997] ICJ Rep. 243, 256.
 implementation by judicial process 611

The Court acknowledged that its Rules do not define counterclaims:

rather, ‘it is for the Court, in its sole discretion, to assess whether the
counter-claim is sufficiently connected to the principal claim, taking
account of the particular aspects of each case’.47 This degree of connec-
tion ‘must be assessed both in fact and in law’, on the basis of the factual
complex underlying the principal claim(s).48
For example, in DRC v. Uganda, the Court held that Uganda’s counter-
claims relating to the DRC’s use of force in violation of Article 2(4) of the
UN Charter and to the DRC’s alleged attacks against diplomatic person-
nel and property were directly connected with the subject matter of the
DRC’s claims.49 Uganda’s third counterclaim, concerning the DRC’s
alleged violation of the Lusaka Agreement, was, however, found to relate
to ‘methods for solving the conflict’ rather than the conflict itself, and
not to be ‘part of the same factual complex’.50 This counterclaim was
therefore held inadmissible.51
The question of counterclaims has also arisen in international invest-
ment arbitrations. Article 19(3) of the UNCITRAL Rules 2010 provides:
In his statement of defence, or at a later stage in the arbitral proceedings if the
arbitral tribunal decides that the delay was justified under the circumstances,
the respondent may make a counter-claim arising out of the same contract or
rely on a claim arising out of the same contract for the purpose of a set-off.

Three tribunals applying the terms of Article 19(3) have held that
counterclaims are permissible in principle, but in practice the require-
ments for a counterclaim are unlikely to be met in investment arbitra-
tion. The first major case was Saluka BV v. Czech Republic.52 Saluka, a

47
Ibid., 258.
48
Ibid. See also Oil Platforms, Order on Counterclaims, ICJ Rep. 1998 p. 190, 204–5.
49
Armed Activities on the Territory of the Congo (DRC v. Uganda), Order on Counterclaims, 29
November 2001, ICJ Rep. 2001 p. 660, 678–80.
50
Ibid., 680.
51
See also Jurisdictional Immunities of the State (Germany v. Italy), Order, 6 July 2010, ICJ.
Germany brought proceedings against Italy alleging that Italy had failed to respect the
jurisdictional immunity which Germany enjoys under international law, inter alia by
allowing civil claims to be brought in the Italian courts in which reparation was sought
for injuries caused by violations of international humanitarian law committed during
the Second World War. Italy sought to bring a counterclaim with respect to the question
of the reparation owed. The Court held that it did not have jurisdiction over the
counterclaim and so did not need to determine whether the counterclaim was directly
connected with the subject matter of the German claim: ibid., 10–11.
52
Saluka Investments BV v. Czech Republic, Decision on Jurisdiction over the Czech Republic’s
Counterclaim, 7 May 2004. See also Dr Horst Reineccius, First Eagle SoGen Funds, Inc.,
Mr Pierre Mathieu and la Société de Concours Hippique de la Châàtre v. Bank for International
612 the implementation of responsibility

Dutch company, had acquired a substantial minority shareholding in

IPB, a Czech state-owned bank, in a partial privatization. In controversial
circumstances IPB became insolvent, went into administration and was
sold for a pittance to another bank. Saluka claimed deprivation of its
investment and violation of the fair and equitable treatment standard set
out in the Netherlands–Czech Republic BIT. The Czech Republic brought
a counterclaim which inter alia alleged breaches of the original share
purchase agreement with the privatization agency, a state organ. The
arbitration was conducted under the UNCITRAL Rules.
The tribunal found that its jurisdiction was ‘in principle wide enough
to encompass counterclaims’ as long as the counterclaim satisfied the
jurisdictional requirements articulated in the Netherlands–Czech Repub-
lic BIT, Article 8 of which held that disputes must concern an invest-
ment.53 Additionally, ‘a legitimate counterclaim must have a close
connexion with the primary claim to which it is a response’.54 The
tribunal drew on ICSID and Iran–US Claims Tribunal rules:
Article 19.3 of the UNCITRAL Rules, Articles 25(1) and 46 of the ICSID Convention
and Article II(1) of the Iran–US Claims Settlement Declaration, all reflect essen-
tially the same requirement: the counterclaim must arise out of the ‘same
contract’ (UNCITRAL Rules, Article 19.3), or must arise ‘directly out of an invest-
ment’ and ‘directly out of the subject-matter of the dispute’ (ICSID, Articles 25(1)
and 46), or must arise ‘out of the same contract, transaction or occurrence that
constitutes the subject matter of [the primary] claims’ (Article II(1) of the Claims
Settlement Declaration). The Tribunal is satisfied that those provisions, as inter-
preted and applied by the decisions which have been referred to, reflect a general
legal principle as to the nature of the close connexion which a counterclaim must
have with the primary claim if a tribunal with jurisdiction over the primary
claim is to have jurisdiction also over the counterclaim.55

In the end, however, the tribunal found that it lacked jurisdiction over
the counterclaim because the disputes ‘which have given rise to the
Respondent’s counterclaim are not sufficiently closely connected with
the subject-matter of the original claim put forward by Saluka to fall
within the Tribunal’s jurisdiction under Article 8 of the Treaty’.56 The
tribunal in Paushok v. Mongolia similarly held that while in principle its

Settlements, Partial Award on the Lawfulness of the Recall of the Privately Held Shares on
8 January 2001 and the Applicable Standards for Valuation of those Shares, 22 November
2002; Final Award on the Claims for Compensation for the Shares Formerly Held by the Claimants,
Interest Due Thereon and Costs of the Arbitration and on the Counterclaim of the Bank against First
Eagle Sogen Funds, Inc., (2003) 23 RIAA 252.
53 54 55 56
Saluka, §§39, 60. Ibid., §61. Ibid., §76. Ibid., §81.
 implementation by judicial process 613

jurisdiction was wide enough to encompass counterclaims, the matters

raised by the respondent did not have a close connection with the
claimants’ claims.57
Counterclaims are also provided for by the Convention on the Settle-
ment of Investment Disputes between States and Nationals of Other
States58 (ICSID Convention) Article 46, which gives tribunals jurisdiction
over counterclaims ‘arising directly out of the subject-matter of the
dispute provided that they are within the scope of the consent of the
parties and are otherwise within the jurisdiction of the Centre’. In
Roussalis v. Romania a majority of the tribunal did not allow a counter-
claim on the basis that it was not within the scope of the consent to
arbitration.59 Article 9 of the Greece–Romania BIT conferred jurisdiction
over ‘[d]isputes between an investor of a Contracting Party and the other
Contracting Party concerning an obligation of the latter under [the BIT]’.
The tribunal reasoned that Article 9 limited its jurisdiction to claims
brought by investors in relation to obligations of the host state and so did
not provide for counterclaims to be introduced by the host state in
relation to obligations of investors.60 The tribunal also reasoned that as
BITs impose no obligations on investors, a tribunal would only have
competence to hear counterclaims where the applicable law of a BIT
included domestic law.61 The applicable law of the Greece–Romania
BIT was limited to the provisions of the BIT itself and applicable rules
and principles of international law. Professor Reisman dissented and
stated that ‘in my view, when the States Parties to a BIT contingently
consent, inter alia, to ICSID jurisdiction, the consent component of Article
46 of the Washington Convention is ipso facto imported into any ICSID
arbitration which an investor then elects to pursue’.62 This would not
appear to be correct. It is clear that Article 46 does not function to extend

57
Sergei Paushok et al. v. Mongolia, Award on Jurisdiction and Liability, 28 April 2011,
§§689–99, available at www.italaw.com/cases/816.
58
18 March 1965, 575 UNTS 159.
59
Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1, 7 December 2011, available at
www.italaw.com/cases/documents/935.
60
Ibid., 142.
61
Ibid. In Amto v. Ukraine, a dispute pursuant to the Energy Charter Treaty and the Rules of
the Arbitration Institute of the Stockholm Chamber of Commerce, the Tribunal
similarly held that it did not have jurisdiction over a counterclaim on the ground that
the respondent had not identified any basis in the applicable law for the counterclaim:
Limited Liability Company Amto v. Ukraine, SCC No. 080/2005, 26 March 2008, §118,
available at www.italaw.com/cases/documents/82.
62
Roussalis, ICSID Case No. ARB/06/1, Declaration of Reisman, 28 November 2011.
614 the implementation of responsibility

a tribunal’s competence and that counterclaims must be within the

scope of the parties’ consent.63
On the other hand the tribunal in Goetz v. Burundi upheld jurisdiction
over a counterclaim, saying:
It is not disputed that the dispute between the Goetz partners and Burundi has a
direct relation with the investments made by the former, in particular in ABC
[the investment vehicle] following the delivery by Burundi of a certificate of
freedom to operate authorizing the bank to carry out its activities in the manner
laid down in the certificate. The counterclaim relates to the conditions in which
ABC carried out these same activities in disregard of the certificate of freedom to
operate of which it was the beneficiary. It thus relates, itself, to an investment as
defined in the BIT.64

In international investment arbitration a counterclaim may thus be

admissible, depending on its connection with the primary claim, as long
as it falls within the description of a dispute concerning an investment
within the terms of the relevant BIT.65 That tribunals may consider
counterclaims brought under appropriately worded BITs is clearly a
desirable conclusion. Despite the asymmetrical character of a BIT, tribu-
nals should be able to hear closely related counterclaims arising under
the investment contract, otherwise the maxim pacta sunt servanda would
only operate in one direction. Moreover, rejecting counterclaims would
increase the likelihood of the same dispute being addressed by two
different courts or tribunals – an impractical and inefficient result which
could also lead to conflicting outcomes. As Professor Reisman stated in
Roussalis v. Romania,
In rejecting ICSID jurisdiction over counterclaims, a neutral tribunal – which
was, in fact, selected by the claimant – perforce directs the respondent State to
pursue its claims in its own courts where the very investor who had sought a
forum outside the state apparatus is now constrained to become the defendant.
(And if an adverse judgment ensues, that erstwhile defendant might well trans-
form to claimant again, bringing another BIT claim.) Aside from duplication and
inefficiency, the sorts of transaction costs which counter-claim and set-off pro-
cedures work to avoid, it is an ironic, if not absurd, outcome, at odds, in my view,
with the objectives of international investment law.66

63
Schreuer, The ICSID Convention: A Commentary (2nd edn, 2009), 754–5.
64
Goetz v. Burundi, (2012) ICSID Case No. ARB/01/2, §277 (author’s translation). The
counterclaim failed on the merits.
65
See also Klöckner v. Cameroon, ICSID Case No. ARB/81/2, Decision on Annulment, 3 May
1985, 2 ICSID Reports 162, 165.
66
Roussalis, ICSID Case No. ARB/06/1, Declaration of Reisman, 28 November 2011.
 implementation by judicial process 615

19.3 Is there a remedial discretion?

For the Permanent Court it was initially controversial whether it could
award remedies at all, in the absence of express authorization by the
parties. Article 36(2)(d) of the Statutes of both the Permanent Court and
the International Court lists ‘the nature or extent of the reparation to be
made for the breach of an international obligation’ as one of the ques-
tions over which a state may give the Court jurisdiction through an
optional declaration, but apart from this the Statutes give no guidance
on the determination of remedies.
In Chorzów Factory the jurisdiction of the Court to award damages was
challenged by Poland, on the basis that the treaty on which the Court
based its jurisdiction did not explicitly provide for jurisdiction over
questions of reparation. This argument was rejected. The Court said:
It is a principle of international law that the breach of an engagement involves an
obligation to make reparation in 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.67

The Court drew the conclusion that jurisdiction to determine a breach

must imply jurisdiction to determine reparation:
An interpretation which would confine the Court simply to recording that the
Convention had been incorrectly applied or that it had not been applied, without
being able to lay down the conditions for re-establishment of the treaty rights
affected, would be contrary to what would, prima facie, be the natural object of
the clause; for a jurisdiction of this kind, instead of settling a dispute once and for
all, would leave open the possibility of further disputes.68

The Court’s interpretation was thus based on the principle of

effectiveness.
The ILC’s Draft Articles on State Responsibility adopted on first read-
ing were formulated in terms of the right of the injured state to repar-
ation. Thus ‘[t]he injured State is entitled to obtain from the State which
has committed an internationally wrongful act’ restitution in kind,
compensation, satisfaction, and assurances and guarantees of non-
repetition, either singly or in combination.69 This version of the Articles
left no doubt that an injured state has a right to one or more remedies
which would naturally be awarded by an international court or tribunal.

67 68
Factory at Chorzów, Jurisdiction, (1927) PCIJ Ser. A No. 9, 21. Ibid., 25.
69
See Draft Articles, Arts. 42–6.
616 the implementation of responsibility

By contrast, the ARSIWA framed the injured state’s entitlement to

reparation in terms of the respondent state’s obligation to provide it:
‘The State responsible for an internationally wrongful act is under an
obligation’ to provide restitution, compensation or satisfaction.70 Also
under this formulation courts and tribunals apparently have no discre-
tion as to whether to award reparation, though they retain discretion as
to which remedy is most appropriate. In practice, however, it seems that
courts and tribunals have usually bent over backwards to avoid awarding
as a remedy anything other than monetary compensation or, in the case
of the International Court, declarations of wrongfulness.71
The Court’s competence to determine remedies even in the absence of
explicit consent of the parties is well established. The Court has not spent
much time discussing why it awards a certain remedy. It has generally
avoided awarding monetary compensation in cases of state responsibil-
ity, preferring instead to rely on declarations of wrongfulness as a form
of satisfaction or, exceptionally, on what amount to injunctions. This is
despite the Court’s repeated reaffirmation that:
It is a well-established rule of international law that an injured State is entitled to
obtain compensation from the State which has committed an internationally
wrongful act for the damage caused by it.72

Thus in LaGrand the Court ordered the United States to ‘allow the
review and reconsideration of the conviction and sentence’ of persons
convicted without being notified of their right to contact their consul-
ates.73 It left the choice of means of how to do this in practice to the
United States. The Court found that the United States had by its actions
violated Article 36 of the Vienna Convention on Consular Relations, but
it did not award any reparation; none was sought by Germany.
In Land and Maritime Boundary between Cameroon and Nigeria, Cameroon
asked the Court to order Nigeria to give a guarantee of non-repetition in
addition to ending the administrative and military presence of Nigeria
on what Cameroon argued was its territory.74 The Court found that
such a remedy would be admissible, but held that a guarantee of

70
ARSIWA, Arts. 35–7. See also Art. 31(1): ‘The responsible State is under an obligation to
make full reparation for the injury caused by the internationally wrongful act.’
71
Already in 1985 Gray observed that declaratory judgments were ‘the norm in the
practice of the ICJ, rather than reparation, let alone restitution’: Gray, (1985)
56 BYIL 25, 39.
72
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7, 81.
73 74
LaGrand, ICJ Rep. 2001 p. 446, 513. Cameroon v. Nigeria, ICJ Rep. 2002 p. 303, 452.
 implementation by judicial process 617

non-repetition would be unnecessary as it trusted the parties to abide by

the boundaries determined by it. The Court also found that as it was
awarding the area in question to Cameroon, the determination of
Nigeria’s responsibility for its occupation had become a moot point.
The injury suffered by Cameroon was ‘sufficiently addressed’ by the
judgment itself.75
A similar approach was taken by the Court in Bosnian Genocide. The
Court found that Serbia had violated its obligation to prevent genocide,
but as a causal nexus between this breach and the damage resulting from
the genocide could not be established, the Court held that monetary
compensation would not be an appropriate form of reparation.76 It
therefore considered a declaration of wrongfulness in the operative
paragraphs of the judgment to be sufficient satisfaction. It also held that
such a declaration would be the appropriate remedy for Serbia’s failure
to punish perpetrators of the genocide. Specifically, the Court ordered
Serbia to co-operate with the International Criminal Tribunal for the
former Yugoslavia (ICTY) and to transfer to The Hague persons wanted
for genocide or other crimes under the Genocide Convention.77 Bosnia’s
request for guarantees of non-repetition was, however, rejected by the
Court, as it found that there were insufficient grounds for believing that
a second genocide might occur. The reparations awarded to Bosnia were
therefore limited to the order to co-operate with the ICTY, together with
declarations that ‘Serbia ha[d] violated the obligation to prevent geno-
cide, under the Convention on the Prevention and Punishment of the
Crime of Genocide, in respect of the genocide that occurred in Srebrenica
in July 1995’ and that ‘Serbia ha[d] violated its obligations under the
Convention on the Prevention and Punishment of the Crime of Genocide
by having failed to transfer Ratko Mladic´, indicted for genocide and
complicity in genocide, for trial by the International Criminal Tribunal
for the former Yugoslavia, and thus having failed fully to co-operate with
that Tribunal.’78
Similarly, in the Certain Questions of Mutual Assistance in Criminal Matters
case the Court held that its finding that France had violated its international
obligation to Djibouti by not giving reasons for its refusal to execute a
letter rogatory presented to it by the latter constituted ‘appropriate

75
Ibid.
76
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 233–4.
77 78
Ibid., 235. See also 237 (op. clause 8). Ibid., 237 (op. clauses 5 and 6, respectively).
618 the implementation of responsibility

satisfaction’.79 The Court thus refused to award the injunctions, guaran-

tees of non-repetition and reparation requested by Djibouti.
Exceptions to this approach can, however, be found in judgments in
the Nicaragua and DRC v. Uganda cases. In Nicaragua, the Court found that
the United States had breached several rules of customary international
law, including the obligation not to use force against another state, and
the Treaty of Friendship, Commerce and Navigation between the two
states. The Court therefore held that the United States was under an
obligation to make reparation to Nicaragua for these breaches, although
it found it appropriate to reserve the question of the amount of repar-
ation for subsequent procedures.80 It explained that this would give
Nicaragua the opportunity to amend its claim in the light of the breaches
established by the Court, which were less far-reaching than the alleged
breaches claimed by Nicaragua, and to afford the United States, which
had not participated in the proceedings on the merits, a chance to
present its views on the appropriate amount of compensation. The Court
also addressed Nicaragua’s request for the award of US$370,200,000 as
the ‘minimum (and in that sense provisional) valuation of direct
damages’:
There is no provision in the Statute of the Court either specifically empowering
the Court to make an interim award of this kind, or indeed debarring it from
doing so. In view of the final and binding character of the Court’s judgments,
under Articles 59 and 60 of the Statute, it would however only be appropriate to
make an award of this kind, assuming that the Court possesses the power to do
so, in exceptional circumstances, and where the entitlement of the State making
the claim was already established with certainty and precision. Furthermore, in a
case in which the respondent State is not appearing, so that its views on the
matter are not known to the Court, the Court should refrain from any unneces-
sary act which might prove an obstacle to a negotiated settlement.81

Nicaragua eventually commenced proceedings for determining the

amount of compensation, but it dropped its request after a new govern-
ment came into power, so that the Court never decided on the matter.82
The Court came to a similar decision in DRC v. Uganda. In that case the
Court found that the internationally wrongful acts for which Uganda

79
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ Rep. 2008
p. 177, 245.
80
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), ICJ Rep. 1986 p. 14, 142–3.
81
Ibid.
82
Schulte, Compliance with Decisions of the International Court of Justice (2004), 205–6.
 implementation by judicial process 619

was responsible, which included the unlawful use of force, violation of

sovereignty and territorial integrity and of international humanitarian
and human rights law, caused injury to the DRC and persons on its
territory.83 It therefore concluded that Uganda was under an obligation
to make reparation, which was to be determined by negotiations
between the two states or, failing an agreement, in a subsequent phase
of the proceedings.
The first, and for sixty-three years the only, instance in which the
Court determined the amount of reparation due for a breach of inter-
national law was Corfu Channel. In a separate decision issued eight
months after its judgment on the merits, the Court, with the help of
experts, set the amount of compensation due from Albania to the United
Kingdom at £843,947.84
In Diallo the Court found that the DRC was under an obligation to
make appropriate reparation in the form of compensation to Guinea, in
relation to breaches of international law arising out of its treatment of a
Guinean national.85 The Court did not set the amount of compensation
due, but provided that the parties had six months in which to settle
the question. After the parties failed to reach an agreement in the
time specified, the Court fixed the amount of compensation due at
US$95,000.86
The International Court has thus proved itself more reluctant than the
Permanent Court in determining compensation. In its very first case, the
Permanent Court ordered that Germany pay France 140,749.35 francs
for refusing the SS Wimbledon access to the Kiel Canal.87 In Chorzów
Factory the stage of determining compensation was not reached because
the parties reached a settlement.88
To summarize, the Court seems open to awarding monetary compen-
sation in some cases of state responsibility, but it is extremely reluctant
to award restitution or guarantees of non-repetition. Despite not having
remedial discretion, at least according to the ILC Draft Articles adopted
on first reading, the Court has done its utmost to reserve a certain degree
of discretion, particularly as to the type of remedy to award.

83
Armed Activities (DRC v. Uganda), ICJ Rep. 2005 p. 168, 257.
84
Corfu Channel (UK v. Albania), Judgment on Compensation, ICJ Rep. 1949 p. 244, 250.
85
Ahmadou Sadio Diallo (Guinea v. DRC), ICJ, 30 November 2010, 50.
86
Ahmadou Sadio Diallo (Guinea v. DRC), Compensation owed by the RDC to Guinea, ICJ, 19
June 2012, 21.
87
SS Wimbledon, (1923) PCIJ Ser. A No. 1, 15.
88
Factory at Chorzów, Order, 25 May 1929, (1928) PCIJ Ser. A No. 19, 11.
620 the implementation of responsibility

For investment tribunals, virtually all remedies awarded to date have

been in the form of monetary compensation. This is the only type of
remedy mandated by the ICSID Convention.89 There is, however, no
general rule against the award of non-pecuniary remedies, and some
commentators have advocated more use of these remedies.90 The only
tribunal to consider the matter in depth was that in Enron v. Argentina.
Enron’s Argentinian subsidiary asked for an injunction against the col-
lection of various taxes. Argentina challenged the tribunal’s jurisdiction
to award such a remedy, arguing that
[T]he Tribunal lacks such a power under the Convention and the Treaty, and it
could only either issue a declaratory statement that might satisfy the investor or
else determine the payment of compensation based on a finding that a certain
measure is wrongful . . . [A]n ICSID tribunal cannot impede an expropriation that
falls exclusively within the ambit of State sovereignty; that tribunal could only
establish whether there has been an expropriation, its legality or illegality and
the corresponding compensation.91

Argentina considered any other remedy to be too much of an infringe-

ment of its sovereignty. The tribunal rejected this argument, finding that
it did have ‘the power to order measures involving performance or
injunction of certain acts’.92 It came to this conclusion largely on the
basis of the Rainbow Warrior case, in which the tribunal held:
The authority to issue an order for the cessation or discontinuance of a wrongful
act or omission results from the inherent powers of a competent tribunal which
is confronted with the continuous breach of an international obligation which is
in force and continues to be in force. The delivery of such an order requires,
therefore, two essential conditions intimately linked, namely that the wrongful
act has a continuing character and that the violated rule is still in force at the
time in which the order is issued.93

89
ICSID Convention, Art. 54(1) provides: ‘Each Contracting State shall recognize an award
rendered pursuant to this Convention as binding and enforce the pecuniary obligations
imposed by that award within its territories as if it were a final judgment of a court in
that State.’ Art. 43(1) of the US Model BIT 2004 provides:
Where a tribunal makes a final award against a respondent, the tribunal may award,
separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property . . .
90
See, e.g., McLachlan, Shore and Weiniger, International Investment Arbitration: Substantive
Principles (2007), 341.
91
Enron Corp. and Ponderosa LP v. Argentine Republic, ICSID Case No. ARB/01/3, Award on
Jurisdiction, 14 January 2004, §76, available at www.asil.org/ilib/enron.pdf.
92
Ibid., §81.
93
Rainbow Warrior (New Zealand/France), (1990) 20 RIAA 215, 217, 270.
 implementation by judicial process 621

The tribunal ultimately chose not to award a non-pecuniary remedy.

The tribunal in Goetz v. Burundi came up with a solution to the problem
that non-pecuniary remedies will often be considered too much of an
infringement of state sovereignty. The case concerned the withdrawal of
a certificate granting tax and customs exemptions. The tribunal gave
Burundi a choice of either reinstating the exemptions or paying
damages:
[I]t falls to the Republic of Burundi, in order to establish the conformity with
international law of the disputed decision to withdraw the certificate, to give an
adequate and effective indemnity to the claimants as envisaged in Article 4 of the
Belgium–Burundi investment treaty, unless it prefers to return the benefit of the
free zone regime to them. The choice lies with the sovereign discretion of the
Burundian government. If one of these two measures is not taken within a
reasonable period, the Republic of Burundi will have committed an act contrary
to international law the consequences of which it would be left to the Tribunal to
ascertain.94

To conclude, if a state has breached its international obligations to the

investor, resulting in injury to the latter, financial compensation will
usually be awarded. There may, however, be movement towards acknow-
ledging some degree of discretion as to the type of remedy international
investment tribunals may award. At least under ICSID Rules, however, it
seems that a tribunal may not award a non-pecuniary remedy in the
absence of a monetary alternative.

19.4 Election of remedies

19.4.1 The claimant’s right to elect and election in the course
of proceedings
It is up to the injured state to determine initially the consequences of a
breach of international law.95 Thus an injured state is normally entitled
to elect as between the available forms of reparation. Article 43(2) pro-
vides that the injured state may specify to the state whose responsibility
it is invoking ‘what form reparation should take’. The right to elect as
between different forms of remedies applies equally in cases where there
is more than one injured state, including where one or more states are
particularly injured by the breach of a collective or community obliga-
tion. A ‘specially affected state’ may thus claim cessation and the
94
Goetz and Ors v. Burundi, ICSID Case No. ARB/95/3, Award on Jurisdiction, 6 ICSID Reports
3, 44.
95
Gray (1987), 6.
622 the implementation of responsibility

reparation of its choice. The situation is different for the class of states
interested in the violation of the collective obligation, but not directly
injured by it. These states may seek the cessation of the internationally
wrongful act, along with guarantees of non-repetition, and may call for
reparation for the directly injured state or states. They are not them-
selves entitled to any form of reparation. The same applies, mutatis
mutandis, to cases where no state is injured as a result of a breach of
collective or community obligations, for example because the injured
parties are individuals or organizations.
It is thus possible that an injured state and a state other than the
injured state both invoke the responsibility of another state but ask for
different remedies. This happened for example in the Wimbledon: Japan,
which had not suffered any injury or loss, sought only a declaration of
wrongfulness from the Court, while France, whose national had suffered
a loss as a result of the German refusal to permit the Wimbledon to pass
through the Kiel Canal, sought and obtained damages.96
The International Court generally respects the choice of reparation
made by the applicant and will not venture beyond it. In Nuclear Tests, for
example, the Court refrained from discussing the legality of the tests
carried out by France, as it found that the remedy requested by Australia
and New Zealand, an order that France would not carry out further tests,
had been made redundant by a unilateral French declaration to the same
effect.97 The Court simply noted that ‘a declaration is a form of “satisfac-
tion” which the Applicant might have legitimately demanded when
it presented its final submissions in the present proceedings, independ-
ently of any claim to compensation’ and left the matter at that.98
Similarly, in the LaGrand case, the Court refrained from discussing com-
pensation because Germany had not asked for it.99
The reparation sought by the injured state must be notified to the
responsible state in accordance with ARSIWA Article 43(2) and the
injured state may not seek reparation if it has validly waived its claim
in accordance with Article 45.
An injured state’s right of election is not unlimited, as can be seen
from the language of Article 43(2)(b), which does not set out the right in
an absolute form. The commentary recognizes three situations in which

96
SS Wimbledon, (1923) PCIJ Ser. A No. 1, 30.
97
Nuclear Tests (Australia v. France), Jurisdiction, ICJ Rep. 1974 p. 253, 270–2; Nuclear Tests
(New Zealand v. France), Jurisdiction, ICJ Rep. 1974 p. 457, 475–7.
98
Nuclear Tests (Australia v. France), Jurisdiction, ICJ Rep. 1974 p. 253, 258.
99
LaGrand, ICJ Rep. 2001 p. 446, 513.
 implementation by judicial process 623

the right is qualified. First, where there is a plurality of injured states

and they do not make consistent elections.100 The commentary to Article
46 states:
For example, 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. In any event, two injured States each claiming in respect of the same
wrongful act would be expected to coordinate their claims so as to avoid double
recovery.101

It is simplistic to say that the commentary here recognizes a hard and

fast rule that ‘where one injured State seeks restitution and the other
seeks compensation, then compensation is to prevail’.102 The commen-
tary is merely giving an example. As the Drafting Committee stated,
Article 46
did not deal with the case where injured States took different attitudes to the
forms of reparation, as that seemed to be a problem of limited practical import-
ance. Such cases, if they arose, were likely to present special features and to be
significantly affected by the content of the obligation breached.103

Second, the commentary states that ‘there are cases where a State may
not, as it were, pocket compensation and walk away from an unresolved
situation, for example one involving the life or liberty of individuals or
the entitlement of a people to their territory or to self-determination’.104
Third, the commentary states that
in so far as there are continuing obligations the performance of which are not
simply matters for the two States concerned, those States may not be able to
resolve the situation by a settlement, just as an injured State may not be able on
its own to absolve the responsible State from its continuing obligations to a larger
group of States or to the international community as a whole.105

According to Gray there is ‘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’.106 Both of the last two types of situation are explicable on

100
On the apportionment of reparation in situations involving a plurality of injured states,
see Chapter 17.
101 102
ARSIWA Commentary, Art. 46, §4. Gray (2010), 593.
103
ILC Ybk 2000/I, 395 (Chairman of the Drafting Committee). See also Crawford, Third
Report, 76.
104 105 106
ARSIWA Commentary, Art. 43, §6. Ibid. Gray (2010), 594.
624 the implementation of responsibility

the basis of the obligation of cessation and continued duty of perform-

ance.107 Where a primary obligation continues, a responsible state has
an obligation to cease its wrongful conduct (if continuing) and a duty to
continue performance of the primary obligation.108 In such situations, to
permit the injured state to receive compensation in lieu of restitution
could amount to double recovery.109
It is open to a state to ask for a variety of remedies at the start of
proceedings and to narrow this range as the case progresses or to change
its preferred remedy in the course of proceedings. In Chorzów Factory, for
example, Germany decided to accept compensation after initially
insisting on restitution of the factory.110 In Passage through the Great Belt,
Finland eventually accepted compensation in a negotiated settlement,
after insisting on the deconstruction of the disputed bridge during the
proceedings.111 At common law parties are entitled to change the rem-
edies they seek up to the day of judgment. No limit on the period during
which parties may seek such a change has been established in inter-
national law, but presumably it extends at least to the making of formal
submissions at the end of the oral phase.

19.4.2 Fork-in-the-road clauses

A fork-in-the-road clause dictates that where an investment tribunal
would otherwise have jurisdiction pursuant to a treaty, a party may lose
the ability to avail itself of such jurisdiction by choosing another forum
for the resolution of its dispute. The choice of one such form of dispute
may expressly preclude resort to another under the principle of electa una
via. Under provisions of this kind, the loss of access to international
arbitration apparently applies only if the dispute was submitted to the
domestic courts.112
In order to determine whether the choice under a fork-in-the-road
clause has been taken, it is necessary to establish whether the parties
and the causes of action in the two suits are identical. The loss of access
to international arbitration applies only if the same dispute has

107
See also Crawford, Third Report, 64; ILC Ybk 2000/II(2), 37. On the obligation of
cessation and the continued duty of performance, see Chapter 14.
108 109
ARSIWA, Arts. 29, 30. On the rule against double recovery, see Chapter 20.
110
Factory at Chorzów, Order, 25 May 1929, (1928) PCIJ Ser. A No. 19, 17.
111
Passage through the Great Belt (Finland v. Denmark), Provisional Measures, ICJ Rep. 1991
p. 12; Passage through the Great Belt (Finland v. Denmark), Order, 10 September 1992, ICJ
Rep. 1992 p. 348.
112
McLachlan, Shore and Weiniger (2007), 103–7.
 implementation by judicial process 625

previously been submitted by the same party to the domestic courts. This
principle is now well established.113 It was held by the tribunal in
Vivendi, for example, that the same type of claim must be in existence
in both the domestic and international proceedings.114 The relevant
article in the BIT under consideration in that arbitration provided that
‘[o]nce an investor has submitted the dispute to the courts of the Con-
tracting Party concerned or to international arbitration, the choice of
one or the other of those procedures is final’.115 The tribunal interpreted
this provision to apply only to claims explicitly alleging a cause of action
under the BIT or charging Argentina with a violation of the BIT. This
excluded claims brought under domestic proceedings on the basis of the
concession contract.
The applicable law applied in the local courts and the investment
tribunal must thus be the same for the fork-in-the-road clause to exclude
jurisdiction. The clause does not spring into action when an investor
brings a local claim for breach of contract and its international claim is
based on a breach of the BIT. As the tribunal held in CMS v. Argentina,
Decisions of several ICSID tribunals have held that as contractual claims are
different from treaty claims, even if there has been or there currently was a
recourse to the local courts for breach of contract, this would not have prevented
submission of the treaty claims to arbitration.116

Schreuer has argued that the national and international disputes

would have to be identical in order for a fork-in-the-road clause to apply
so that, if the international claim is based on a breach of treaty, ‘the
dispute before the domestic courts or administrative tribunals would
also have to concern an alleged breach of a right conferred or created by
the BIT’.117 This interpretation has been refuted by McLachlan et al., who
argue that this approach is excessively restrictive and that ‘the fork in
the road clause ought to operate should the investor choose to pursue a

113
See e.g. Vivendi Universal v. Argentina, First Award, (2000) 5 ICSID Reports 296, 310–11,
315–16; Vivendi Universal v. Argentina, First Annulment, (2002) 6 ICSID Reports 340, 352,
356; LG&E Energy Corporation, LG&E Capital Corporation and LG&E International Inc. v.
Argentine Republic, Decision on Objections to Jurisdiction, (2004) 11 ICSID Reports 411,
428.
114
(2000) 5 ICSID Reports 296, 315–16.
115
Agreement between the Government of the Argentine Republic and the Government of
the Republic of France for Reciprocal Protection and Promotion of Investments, 3 July
1991, 1728 UNTS 282, Art. 8(2).
116
CMS Gas Transmission Co. v. Argentina, Decision on Jurisdiction, (2003) 7 ICSID Reports
492, 511.
117
Schreuer, (2004) 5 JWIT 231, 248.
626 the implementation of responsibility

claim equivalent in substance to that created by the BIT against the host
State’.118 A fork-in-the-road clause can thus operate to deprive a tribunal
of jurisdiction.
In Pantechniki the sole arbitrator Paulsson held that jurisdiction over a
claim was excluded by the operation of a fork-in-the-road clause.119 He
stated that ‘there comes a time when it is no longer sufficient merely to
assert that a claim is founded on the Treaty. The Tribunal must deter-
mine whether the claim truly does have an autonomous existence out-
side the contract.’120 The Albanian court case in question concerned a
minister’s refusal to pay the amount of contractual compensation set by
a commission. Arbitrator Paulsson stated that this conduct ‘might be
challenged as an arbitrary act by a senior official which falls to be exam-
ined for compliance with the substantive standards of the Treaty’.121 He
reasoned that if the Albanian courts accepted that the claimant was
entitled to payment, ‘it would grant the Claimant exactly what it is
seeking before ICSID – and on the same “fundamental basis”. The Claim-
ant’s grievance thus arises out of the same purported entitlement.’122

19.4.3 The non ultra petita rule

The discretion to award reparation is limited by the non ultra petita rule.
This rule prescribes that the Court cannot award the applicant state
more than what it requested in its submissions. For example, in the
Corfu Channel case the United Kingdom had asked for £700,087 compen-
sation for the loss of one of its ships, HMS Saumarez. The Court decided to
get an expert opinion on the technical question of the valuation of the
ship, and the experts valued the loss at £716,780. Nevertheless, the Court
held that it could not ‘award more than the amount claimed in the
submissions of the United Kingdom Government’.123 This approach
was criticized by Judge ad hoc Ečer, who argued that the Court based
itself on a procedural rule which should not affect its method of calcula-
tion. In his view, ‘the Court, without any reference to this rule, must
decide, in the first place and on grounds of law, and not of mathematics,
what basis [for calculation of compensation] is juridically to be
adopted’.124 If the result arrived at is more than asked for by the
118
McLachlan, Shore and Weiniger (2007), 106–7 (emphasis in original).
119
Pantechniki SA Contractors and Engineers (Greece) v. Albania, Award, ICSID Case No. ARB/07/
21, 30 July 2009, available from www.italaw.com/cases/810.
120 121 122
Ibid., §64. Ibid., §65. Ibid., §67.
123
Corfu Channel, Judgment on Compensation, ICJ Rep. 1949 p. 244, 249.
124
Ibid., 252, 253 (Judge ad hoc Ečer, diss.).
 implementation by judicial process 627

applicant government, the Court should limit the award in accordance

with the non ultra petita rule.
The rule is also supported by arbitral jurisprudence. For example, in
the Spanish Zone of Morocco Claims arbitration, Rapporteur Max Huber was
faced with a British demand for compound interest at 7 per cent, while
Spain argued for simple interest at 5 per cent. Huber decided:
The rate of 5 per cent would certainly be too low. By contrast one could well
envisage in certain cases a rate higher than 7 per cent. That being so, one must
nevertheless respect the judicial principle according to which it is impermissible
to go beyond the claims of the parties. Despite the special character of the inquiry
with which he has been entrusted, the Rapporteur considers . . . that as far as
possible he should take account of the principles governing judicial procedure.
That is why he adopts a rate of 7 per cent as the maximum as well as the
minimum.125

This can, however, be seen as a rather mechanical application of the non

ultra petita principle. It is hard to justify this separation of the interest
rate from its method of calculation. A higher rate of interest calculated
as simple interest would not have exceeded the amount of interest
actually sought by the United Kingdom.
The tribunal in the Rainbow Warrior arbitration found itself confined
by New Zealand in the remedy it could award. New Zealand sought the
return of the French agents to the island where they were previously
detained and specifically rejected any other remedy. This appears to have
been accepted by the tribunal as a limit on its powers of decision:
New Zealand has not however requested the award of monetary compensation –
even as a last resort should the Tribunal not make the declarations and orders for
the return of the agents. The Tribunal can understand that position in terms of
an assessment made by a State of its dignity and sovereign rights. 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. Further, the Tribunal itself has
not had the advantage of the argument of the two parties . . . on . . . relevant
matters, such as the amount of damages.126

The tribunal thus decided not to award monetary compensation,

although it made a recommendation to similar effect (which France
accepted).127
The non ultra petita rule has its limits. The rule does not normally apply
to the jurisdictional phase of proceedings, as the Court must satisfy itself
125 126 127
(1924) 2 RIAA 615, 650. (1990) 20 RIAA 217, 272. Ibid., 272, 274.
628 the implementation of responsibility

that it has jurisdiction.128 Although it might be reluctant to do so, the

Court can thus entertain objections to jurisdiction not raised by the
parties, and arguably must do so if these objections are so fundamental
as to call jurisdiction into question. With regard to the merits of a case,
the Court could be faced with a situation in which it finds a flaw in one
party’s case which was not pointed out by the other party. In such a
situation, the Court may base its decision on considerations other than
those advanced by the parties as long as it stays within the dispute
properly referred to it and the points raised by the parties. This follows
from the fundamental principle that the Court must decide in accord-
ance with international law and that, pursuant to the principle of iura
novit curia, it knows and must apply the law ‘whatever the parties say, or
omit to say’.129
This issue arose in the Arrest Warrant case. The DRC had advanced
Belgium’s ‘exercise of excessive universal jurisdiction’ as a subsidiary
ground for the unlawfulness of the warrant.130 Belgium contended that
this claim was excluded from the Court’s jurisdiction by the non ultra
petita rule, as the DRC had dropped it in its final submissions. The Court
agreed with Belgium that it could not rule on the claim of excessive
universal jurisdiction, but it nevertheless held:
While the Court is thus not entitled to decide upon questions not asked of it, the
non ultra petita rule nonetheless cannot preclude the Court from addressing
certain legal points in its reasoning. Thus in the present case the Court may
not rule, in the operative part of its Judgment, on the question whether the
disputed arrest warrant, issued by the Belgian investigating judge in exercise of
his purported universal jurisdiction, complied in that regard with the rules and
principles of international law governing the jurisdiction of national courts. This
does not mean, however, that the Court may not deal with certain aspects of that
question in the reasoning of its Judgment, should it deem this necessary or
desirable.131

The majority’s decision was criticized by Judge ad hoc van den Wyn-
gaert and by Judges Higgins, Kooijmans and Buergenthal. All disagreed
with the sequencing of the reasoning of the majority, arguing that the
question of jurisdiction should logically have been addressed prior to the
question of immunity, as otherwise the latter is a purely hypothetical

128
See Statute of the International Court of Justice, 26 June 1945, 15 UNCI 355, Art. 53(2),
which provides that ‘[t]he Court must . . . satisfy itself . . . that it has jurisdiction in
accordance with Articles 36 and 37.’
129
Fitzmaurice, (1958) 34 BYIL 100, 105.
130 131
Arrest Warrant of 11 April 2000 (DRC v. Belgium), ICJ Rep. 2002 p. 3, 18. Ibid., 19.
 implementation by judicial process 629

exercise.132 In addition, Judges Higgins, Kooijmans and Buergenthal

advanced the following interpretation of the non ultra petita rule:
Belgium is wrong it if wishes to convey to the Court that the non ultra petita rule
would bar it from addressing matters not included in the submissions. It only
precludes the Court from deciding upon such matters in the operative part of the
Judgment since that is the place where the submissions are dealt with. But it
certainly does not prevent the Court from considering in its reasoning issues
which it deems relevant for its conclusions.
...
Thus the ultra petita rule can operate to preclude a finding of the Court, in the
dispositif, on a question not asked in the final submissions by a Party. But the
Court should not, because one or more of the parties finds it more comfortable
for its position, forfeit necessary steps on the way to the finding it does make in
the dispositif.133

The rule thus represents an outer limit to the final award or decision
open to a court or tribunal, without limiting the grounds of its decision
within that boundary. The International Court remains free to choose
the grounds for its judgments, but its ability to award certain remedies –
or to award a certain amount of compensation – may be limited by the
claims advanced by the parties.

19.5 Systematic remedies arising from individual cases

Various techniques have been developed to deal with mass claims, such
as pro rata payments, model claims, approximations and executive
decision-making, as with the UN Compensation Commission created in
relation to Iraq’s invasion and occupation of Kuwait.134 One notable
example is the Eritrea–Ethiopia Claims Commission (EECC). The EECC
was established in the aftermath of the Eritrea–Ethiopia war, pursuant
to the Algiers Agreement.135 Although the EECC was conceived as a mass
claims procedure,136 the two states elected not to pursue the option of
filing mass claims on behalf of individuals and instead filed their claims

132
Ibid., 164 (Judge ad hoc van den Wyngaert, diss.), 68 (Judges Higgins, Kooijmans and
Buergenthal).
133
Ibid., 66–7 (Judges Higgins, Kooijmans and Buergenthal, emphasis in original).
134
Brownlie’s Principles, 734.
135
Agreement between the Government of the Federal Democratic Republic of Ethiopia
and the Government of the State of Eritrea, 12 December 2000, 2138 UNTS 94, Art. 5.
136
Ibid., Art. 5(8). See also EECC, Rules of Procedure, Ch. 3; EECC, Decision 2; EECC,
Decision 5; all available at www.pca-cpa.org/showpage.asp?pag_id=1151.
630 the implementation of responsibility

as interstate claims.137 The EECC awarded Eritrea compensation total-

ling approximately US$163 million and Ethiopia compensation totalling
US$174 million – in effect a net payment of US$11 million to Ethiopia.138
This example is not reflective of the general experience with mass
claims. The United Nations Compensation Commission (UNCC), for
example, has so far made available US$37.7 billion for payments to
1.5 million specific recipients.139 This section will discuss three situ-
ations in which international courts and tribunals are faced with mass
claims, and the techniques that have been developed to deal with them:
(i) mass claims before the ECHR and its use of pilot cases, (ii) class actions
in investment arbitrations, and (iii) compensation for victims in inter-
national criminal proceedings.

19.5.1 The ECHR: Broniowski and its progeny

A new approach to providing remedies to victims of wrongful state
conduct has been pioneered by the European Court of Human Rights.
Faced with hundreds of cases stemming from the same wrongful con-
duct, completely overwhelming the Court, the Committee of Ministers of
the Council of Europe adopted Resolution 2004(3) on 12 May 2004, in
which it invited the Court
to identify, in its judgments finding a violation of the Convention what it
considers to be an underlying systemic problem and the source of this problem,
in particular when it is likely to give rise to numerous applications, so as to assist
states in finding the appropriate solution and the Committee of Ministers in
supervising the execution of judgments. . .140

On the same day, the Committee also adopted a recommendation aimed

at improving the domestic remedies of member states.141 It recom-
mended that member states
ascertain, through constant review, in the light of case-law of the Court, that
domestic remedies exist for anyone with an arguable complaint of a violation of
the Convention, and that these remedies are effective, in that they can result in a
decision on the merits of the complaint and adequate redress for any violation
found.142

137
EECC, Final Award, Eritrea’s Damages Claims, 17 August 2009, 26 RIAA 505, §§25, 53, 65.
138
Ibid., §IX; EECC, Final Award, Ethiopia’s Damages Claims, 17 August 2009,
26 RIAA 631, §XII.
139
UNCC, press release, 26 July 2012, available at www.uncc.ch/pressrel.htm.
140
Council of Europe Doc. CM/Res. (2004)/3E, §1.
141 142
Council of Europe Doc. CM/Res. (2004)/6E. Ibid., §1.
 implementation by judicial process 631

Further, member states should

review, following Court judgments which point to structural or general deficien-
cies in national law or practice, the effectiveness of the existing domestic remed-
ies and, where necessary, set up effective remedies, in order to avoid repetitive
cases being brought before the Court.143

The appendix containing good practice attached to the Recommenda-

tion provided for ‘pilot’ judgments with wide-ranging effects for the
respondent state:
When a judgment which points to structural or general deficiencies in national
law or practice (‘pilot case’) has been delivered and a large number of applications
to the Court concerning the same problem (‘repetitive cases’) are pending or
likely to be lodged, the respondent state should ensure that potential applicants
have, where appropriate, an effective remedy allowing them to apply to a com-
petent national authority, which may also apply to current applicants. Such a
rapid and effective remedy would enable them to obtain redress at national level,
in line with the principle of subsidiarity of the Convention system.

Both the Resolution and the Recommendation were based on pro-

posals made by the Court itself.144
The impetus behind both the Resolution and the Recommendation
was the Court’s ever-growing case load, and the hope that victims of
human rights breaches would forgo making an application to the Court,
or retract an application already pending, if effective remedies were
provided by the responsible state.
The Court gave its first pilot judgment in Broniowski v. Poland.145 The
background to this case was the repatriation of approximately 1,240,000
Polish nationals from Polish ‘borderlands’, also known as land ‘beyond
the Bug river’, which was no longer Polish territory after the Second
World War.146 In agreements with Ukraine, Belarus and Lithuania,
Poland undertook to compensate the persons who were expatriated for

143
Ibid., §2.
144
See the Report adopted by the Steering Committee for Human Rights (CDDH) on
guaranteeing the long-term effectiveness of the European Court of Human Rights
(Council of Europe Doc. CDDH(2003)006, 21 March 2003) and the Response of the
European Court of Human Rights to the CDDH Interim Activity Report prepared
following the forty-sixth Plenary Administrative Session (Council of Europe Doc.
CDDH-GDR(2004)1, 2 February 2004).
145
Broniowski v. Poland, ECtHR, App. No. 31443/96, 22 June 2004. See Šikuta and
Hulbálková, European Court of Human Rights: Case-Law of the Grand Chamber 1998–2006
(2007), 292–7.
146
Broniowski, ECtHR, App. No. 31443/96, 22 June 2004, §10.
632 the implementation of responsibility

the loss of their property. The applicant’s grandmother had owned

property in territory beyond the Bug River, but she and her descendants
had only received around 2 per cent of the compensation from the Polish
government to which they claimed to be entitled. The applicant’s
attempts to obtain the rest of the compensation through the Polish
courts had been unsuccessful.
The Court found that Poland had violated Article 1 of Protocol 1 to the
Convention, on the right to the peaceful enjoyment of one’s posses-
sions.147 Recognizing that this violation ‘originated in a widespread
problem which resulted from a malfunctioning of Polish legislation
and administrative practice and which has affected and remains capable
of affecting a large number of persons’, the Court turned its attention to
the wider category of Bug River claimants. Basing itself on Article 46 of
the Convention, which provides that ‘The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties’, as well as on the Resolution and Recommenda-
tion adopted by the Committee of Ministers, the Court held that it could
order Poland to adopt measures to remedy the systemic defects in the
compensation mechanism, under the supervision of the Committee of
Ministers. Although the Court noted that it did not have the authority to
determine which remedial measures were appropriate, it indicated to
Poland that the current Act providing for compensation would not do, as
it did not cover the applicant and persons in the same situation. The
Court therefore ordered Poland
through appropriate legal measures and administrative practices, [to] secure the
implementation of the property right in question in respect of the remaining
Bug River claimants or provide them with equivalent redress in lieu, in accord-
ance with the principles of protection of property rights under Article 1 of
Protocol No 1.148

The Court suspended its consideration of other Bug River applications

pending Poland’s implementation of the relevant measures.149
The Court stressed repeatedly that this decision should be viewed in
the light of the rapid growth of its case load, particularly as a result of
applications ‘deriving from the same structural or systemic cause’.150
The flaws in Poland’s compensation mechanism had affected nearly
80,000 people, 167 of whom had already filed applications with the

147 148 149 150

Ibid., §187. Ibid., op. §4. Ibid., §198. Ibid., §190.
 implementation by judicial process 633

Court at the time of its judgment. As a result, the future effectiveness of

its machinery was threatened.
The claimant and Poland subsequently reached a friendly settle-
ment.151 In addition, Poland issued a declaration stating that it would
undertake
to implement as rapidly as possible all the necessary measures in respect of
domestic law and practice as indicated by the Court . . . and that, to this end, [it
would] intensify [its] endeavours to make the new Bug River legislation effective
and to improve the practical operation of the mechanism designed to provide the
Bug River claimants with compensation . . .152

In its decision to strike the case off its list, the Court clarified that in pilot
cases redress for the individual and general redress ‘should go hand in
hand’ so that the respondent state simultaneously takes the individual
and general measures required by the Court.153 The Court thus evaluated
whether, in addition to providing adequate redress to the applicant, the
measures taken by Poland would remedy the underlying defect in its
legal order. Although the Court noted that it is for the Committee of
Ministers to monitor and evaluate the implementation of general meas-
ures taken by a member state, it was satisfied that Poland was commit-
ted to remedying the existing defects and that it could rely on its actual
and promised measures ‘as a positive factor’.154 The case was accordingly
struck from its list.
Prior to the decision to strike the case off the list, Poland enacted a law
entitling Bug River claimants to compensation set at 20 per cent of the
value of their property.155 Having regard to the introduction of this
compensation scheme, to its effective functioning in practice and to
the availability of other domestic remedies, in December 2007 the Court
began to strike out the applications of Bug River claimants on the basis
that the issue giving rise to the Bug River cases had been resolved and
further examination of similar cases was no longer justified.156 In the
2008 decision EG v. Poland the Court stated that while it remained for the
Committee of Ministers to supervise the execution of the Broniowski
judgments, the application of the pilot judgment procedure in respect

151
Broniowski v. Poland, ECtHR, App. No. 31443/96, Grand Chamber Judgment on Friendly
Settlement, 28 September 2005. For a summary see Šikuta and Hulbálková (2007),
358–62.
152
Broniowski, ECtHR, App. No. 31443/96, Grand Chamber Judgment on Friendly
Settlement, 28 September 2005, §31.
153 154 155
Ibid., §36. Ibid., §42. Ibid., §13.
156
Wolkenberg v. Poland, ECtHR, App. No. 50003/99, 4 December 2007, §§74–5, 77.
634 the implementation of responsibility

of the Bug River cases was no longer justified, and it closed the proced-
ure.157 In the light of the measures taken by Poland, the Committee of
Ministers decided to conclude its examination of the execution of the
Broniowski judgments in September 2009.158 It noted that up to the end of
July 2009, compensation payments had been made corresponding to
approximately €206.5 million.
The Court gave a second pilot judgment in Xenides-Arestis, which con-
cerned a Greek Cypriot who claimed that he had been deprived by
Turkey of the enjoyment of his property in northern Cyprus.159 The
Court agreed. As 1,400 similar cases were at the time pending before
the Court, it is perhaps not surprising that it ordered Turkey to imple-
ment an effective remedial system to deal with all these claims.
A number of changes were subsequently made to the Northern Cypriot
Compensation Commission. The Court has yet to assess whether these
changes have made the compensation mechanism effective enough to
declare similar claims inadmissible.
The application of the pilot judgment procedure was challenged by
Poland in Hutten-Czapska v. Poland.160 The Polish government claimed
that the applicant’s circumstances were not typical ones. This case was
also different from the two discussed above, in that only eighteen similar
cases were pending before the Court. The Court rejected Poland’s objec-
tion, and clarified that it takes account of potential future cases as well
as existing applications when assessing whether or not to make a pilot
judgment:
While the number of similar applications pending before the Court currently
stands at eighteen – a figure which, in comparison with the Broniowski
case, may seem insignificant – one of those cases has been lodged by an
association of some 200 landlords asserting a breach of their individual
rights. At any rate, the identification of a ‘systemic situation’ justifying the
application of the pilot-judgment procedure does not necessarily have to be
linked to, or based on, a given number of similar applications already
pending. In the context of systemic or structural violations the potential
inflow of future cases is also an important consideration in terms of prevent-
ing the accumulation of repetitive cases on the Court’s docket, which hinders

157
EG v. Poland, (2009) 48 EHRR SE3, §29.
158
Execution of the judgments of the European Court of Human Rights: Broniowski
against Poland, 30 September 2009, Council of Europe Doc. CM/ResDH(2009)89 44,
available at https://wcd.coe.int/.
159
Xenides-Arestis v. Turkey, ECtHR, App. No. 46347/99, 22 December 2005.
160
Hutten-Czapska v. Poland, ECtHR, App. No. 35014/97, 19 June 2006.
 implementation by judicial process 635

the effective processing of other cases giving rise to violations, sometimes

serious, of the rights it is responsible for safeguarding.161

As in Broniowski, the parties reached a friendly settlement and Poland

enacted measures to remedy the systems defects in its legal system
identified by the Court. After the Court had scrutinized these measures,
it struck the case off its list.162
Although any measure which alleviates the Court’s colossal caseload is
to be welcomed, there are significant problems with the pilot judgment
procedure. These were forcefully identified by Judge Zagrebelsky in his
partly dissenting opinion to the Hutten-Czapska case. He named ‘the
indication in the operative provisions of the need for the State to amend
its own legislation in order to solve a general problem affecting persons
other than the applicant’ as the main problem associated with the pilot
judgment approach.163 In his opinion, there is no basis for such an
indication in Article 46 of the Convention: the supervision of the imple-
mentation of judgments is a task solely for the Committee of Ministers.
He noted the importance of Resolution 2004(3) and Recommendation
2004(6), but argued that the Court had exceeded the new competences
granted to it in those documents, venturing into the realm of politics.
Judge Zagrebelsky criticized the pilot judgment procedure even more
strongly in his separate opinion to the decision to strike Hutten-Czapska
off its list:
The Court is not competent (and does not have the necessary knowledge) to
express a view in the abstract and in advance on the consequences of the reforms
already introduced in Poland and to give a vague positive assessment of a
legislative development whose practical application might subsequently be chal-
lenged by new applicants.164

This is a task for the Committee of Ministers and the Court ‘should be
wary of making comments on that issue, both on account of the need to
exercise caution in relation to future applications it might have to
examine impartially in adversarial proceedings and so as not to disturb
unduly the balance provided in the Convention system between its own
role and that of the Committee of Ministers’.165

161
Ibid., §236.
162
Hutten-Czapska v. Poland, App. No. 35014/97, Grand Chamber Judgment on Friendly
Settlement, 28 April 2008.
163
Hutten-Czapska v. Poland, ECtHR, App. No. 35014/97, 19 June 2006, Judge Zagrebelsky,
partly diss., §2.
164 165
Ibid., Judge Zagrebelsky, sep. op. joined by Judge Jaeger, §7. Ibid., §8.
636 the implementation of responsibility

Judge Zagrebelsky also questioned whether the Polish bill would be

adequate to remedy the defects, particularly as it could still change
during its passage through the Sejm. He held that it was unlikely to
impact on similar cases before the Court, which could therefore remain
pending for years. He noted that when the Court resumed its examin-
ation of these similar cases, it would do so on a case-by-case basis, as
usual. The pilot judgment procedure therefore did not achieve its goal of
facilitating ‘the most speedy and effective resolution of a dysfunction
established in national human rights protection’ or of alleviating the
Court’s workload.166 Instead, it weakened the protection of individuals
seeking access to the Court, not least by increasing the length of pro-
ceedings, and worked to the advantage of the respondent government.
He came to the following conclusion:
A procedure such as the one which resulted in the Court’s judgment in the
present case, and which took on the aspect of a Committee of Ministers proced-
ure, calls into question the Court’s role and authority without entailing any
benefits for applicants, the functioning of the Court and human-rights protection
in general. Execution of the operative provisions of the pilot judgment will still
have to wait, notwithstanding the positive attitude of the respondent Govern-
ment and the Court’s direct involvement through the negotiation of a friendly
settlement, which in turn purports to be of a ‘pilot’ and hence ‘systemic’ nature.
The Court has included in the operative provisions of the pilot judgment an
obligation for the State to take general measures to remedy the systemic problem
and links its acceptance of the friendly settlement to the implementation of such
measures, yet at the same time, and not without some contradiction, it confines
itself to taking note of (and appreciating) what is merely the start of a course to
be pursued.167

Other commentators have also questioned whether the Court will be

inclined to afford more discretion to states in implementing an often
massive change to its legal order, which would undermine the protection
it affords to the applicant in a pilot case.168 The pilot judgment proced-
ure may also leave applicants with cases based on the same systemic
defect in limbo for a prolonged period of time, while the state in question
changes its legislation and the Court assesses whether the changes
implemented suffice.169 Both these problems require careful monitoring
by the Committee of Ministers. A more serious problem, however, is the
fact that the pilot procedure may undermine a claimant’s right to have

166 167
Ibid., §13. Ibid., §§15–16.
168
Welch and Fairclough (eds.), [2008] EHRLR 279, 282.
169
Leach, [2005] EHRLR 148, 162.
 implementation by judicial process 637

his or her case dealt with. Although one can see the need to reduce the
Court’s caseload, both the legal basis for the pilot judgment procedure
and its effectiveness are open to doubt.
The implications for other international courts and tribunals of this
new course taken by the ECtHR will likely be limited. The problem of
many complaints arising out of the same state conduct is so far one
which is specific to the human rights law. The pilot judgment procedure
was also borne out of necessity: it was estimated in 2005 that without
taking alleviating measures the Court’s backlog would grow to 250,000
cases by 2010.170 Other international courts and tribunals, although
often struggling with a heavy caseload, do not face even remotely that
number of cases and will not need to take the drastic measures taken by
the European Court, which is essentially a victim of its own success.

19.5.2 Class actions in investment arbitration: Abaclat v. Argentina

In August 2011, a BIT tribunal held for the first time that a mass claim
was within its jurisdiction and admissible. The proceedings in Abaclat v.
Argentina171 arose out of Argentina’s default on sovereign bonds during
the Argentine financial crisis. The claimants were some 60,000 Italian
nationals who were represented in the proceedings by Task Force
Argentina. Argentina contended that mass claims did not fall within
the scope of its consent to arbitration and, even if they did, the tribunal
did not have the power to adopt the necessary procedural rules to deal
with mass claims. The majority of the tribunal rejected Argentina’s
arguments.
In relation to the issue of jurisdiction, the majority of the tribunal
stated that ‘both Parties have consented to ICSID arbitration as a dispute
resolution method for disputes arising out of the BIT. The only
remaining question is whether a specific consent regarding the specific
conditions in which the present arbitration would be conducted is
required – that is, regarding the form of collective proceedings.’172 It
held that such specific intent was not required, explaining:
Assuming that the Tribunal has jurisdiction over the claims of several individual
Claimants, it is difficult to conceive why and how the Tribunal could loose [sic]

170
Lord Woolf et al., Review of the Working Methods of the European Court of Human Rights
(December 2005), 8, available at www.echr.coe.int/echr/en/header/the+court/reform+
of+the+court/reports/.
171
Abaclat and ors v. Argentina, ICSID Case No. ARB/07/5, Decision on Jurisdiction and
Admissibility, 4 August 2011, available at www.italaw.com/cases/35.
172
Ibid., §489.
638 the implementation of responsibility

such jurisdiction where the number of Claimants outgrows a certain threshold.

First of all, what is the relevant threshold? And second, can the Tribunal really
‘loose’ [sic] a jurisdiction it has when looking at Claimants individually?173

Arbitrator Abi-Saab dissented, arguing that consent to mass claims

cannot be deduced from mere consent to arbitration due to the funda-
mental differences between the two modes of adjudication.174
The better view is that consent to arbitration does encompass consent
to a large number of claims being presented in a single proceeding. It is
well established that consent to arbitration extends to multiparty arbi-
tration.175 Given the acceptance of multiparty arbitration, it is difficult
to argue that on reaching some number of claimants an application
falls outside the scope of a respondent state’s consent to arbitration.
As Schreuer states, ‘Once the principle of multipartite arbitration is
accepted, no question should arise by virtue only of the number of
co-claimants.’176
Whether a multiparty arbitration can be conducted in the form of a
mass claim is a different question, one of admissibility. The real concern
with mass claims is the manner in which they are heard. After holding
that the claims were within the scope of Argentina’s consent to arbitra-
tion, the majority of the tribunal asked whether the proceedings were
admissible: ‘can an ICSID arbitration be conducted in the form of “mass
proceedings” considering that this would require an adaptation and/or
modification by the Tribunal of certain procedural rules provided for
under the current ICSID framework?’177 Article 44 of the ISCID Conven-
tion provides:
Any arbitration proceeding shall be conducted in accordance with the
provisions of this Section and, except as the parties otherwise agree, in accord-
ance with the Arbitration Rules in effect on the date on which the parties
consented to arbitration. If any question of procedure arises which is not

173
Ibid., §490.
174
Abaclat and ors v. Argentina, ICSID Case No. ARB/07/5, Abi-Saab, diss., 28 October 2011,
§§153, 170, available at www.italaw.com/cases/35.
175
For example, Funnekotter v. Zimbabwe involved fourteen claimants: Bernardus Henricus
Funnekotter and Ors v. Zimbabwe, ICSID Case No. ARB/05/6, 22 April 2009. In Klöckner v.
Cameroon, ICSID Case No. ARB/81/2, the argument that the use of singular form for
‘national’ in Art. 25(1) of the ICSID Convention barred multiparty arbitration was raised
but was not taken up by the tribunal and was apparently dropped by Cameroon:
Schreuer (2009), 163.
176
Schreuer (2009), 163.
177
Abaclat, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August
2011, §491.
 implementation by judicial process 639

covered by this Section or the Arbitration Rules or any rule agreed by the
parties, the Tribunal shall decide the question.

As acknowledged by the majority of the tribunal,

[T]he power of a tribunal is limited to the filling of gaps left by the ICSID
Convention and Arbitration Rules. In contrast, a modification of existing rules
can only be effected subject to the parties’ agreement . . . A tribunal’s power is
further limited to the filling of gaps left by the ICSID framework in the specific
proceedings at hand, and a tribunal’s role is not to complete or improve the ICSID
framework in general.178

The majority of the tribunal noted that the proceedings would require
a departure from normal procedure: Task Force Argentina had been
provided with powers which may go beyond the powers granted to a
normal agent under Rule 18 of the ICSID Arbitration Rules and, given the
large number of claimants, a simplification of the examination method
and procedure would be necessary.179 The majority of the tribunal held
that the adaptations necessary to deal with the claimants’ claims were
‘acceptable under Article 44 of the ICSID Convention’.180
The correctness of the majority’s conclusion can be doubted. It seems
quite clear that the development of procedural rules for dealing with
mass claims does not constitute merely filling a gap in the ICSID frame-
work, but rather involves developing an entire framework for a new
form of proceeding. In the words of the dissent, the majority’s proposed
‘adaptation’
does not consist of providing for an inadvertently overlooked minor contingency
or a small missing detail in an existing rule needed for its implementation that
would correspond to the meaning of ‘filling a gap’; but of changing or substituting
the existing rules by other ‘specific rules’, which clearly constitute an amend-
ment, modification or revision of the existing rules; an operation which lies
beyond the limited power granted to the Tribunal under Article 44 of the
Convention.181

The inevitable fact is that the ‘adapted’ procedure substantially changes

Argentina’s procedural rights, in that it will not be able to bring argu-
ments in full detail concerning the individual situation of each claimant,

178
Ibid., §§522–3. See also Schreuer (2009), 688.
179
Abaclat, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August
2011, §§530–2.
180
Ibid., §547.
181
Abaclat, ICSID Case No. ARB/07/5, Abi-Saab, diss., 28 October 2011, §217 (emphasis in
original).
640 the implementation of responsibility

including as to issues potentially affecting jurisdiction.182 Arbitrator Abi-

Saab also noted that none of the international bodies that have been
established to deal with mass claims have taken on themselves or been
authorized to invent their own procedures.183 This is not to say that
mass claims will never be admissible under the ICSID framework. Claims
such as those in Abaclat could be heard if the parties agreed on necessary
rules of procedure, as permitted by Article 44.
The majority of the tribunal also referred to the fact that the rejection
of the claims would constitute a ‘denial of justice’. It stated:
The Tribunal finds it appropriate to compare the consequences of these implica-
tions to the consequences of rejecting the claims for lack of admissibility and
requesting each Claimant to file an individual ICSID claim. In this regard, the
Tribunal finds that not only would it be cost prohibitive for many Claimants to
file individual claims but it would also be practically impossible for ICSID to deal
separately with 60,000 individual arbitrations. Thus, the rejection of the admis-
sibility of the present claims may equal a denial of justice.184

Even if requiring each claimant to file an individual claim could be

considered ‘unjust’ in the ordinary sense of the term, it is not correct to
say that the rejection of the mass claim would amount to a denial of
justice. It was not the case that the claimants would have been deprived
of an efficient dispute settlement mechanism as there were other forums
in which it was open to the claimants to pursue their claims.185 Also,
denial of justice is an issue of merits and does not arise for consideration
before a tribunal has established that claims are within its jurisdiction
and are admissible.186 Arbitrator Abi-Saab further elaborated:
[I]t is also out of place and even odd in international law to speak in general of an
absence of a competent forum (which is not the case here), in terms of ‘denial of
justice’. This is because international law, given its a-centralized character, has
no system of courts or tribunals of plenary or general jurisdiction (juridictions de
droit commun) covering all cases and litigants . . . [A]ll international courts and
tribunals are tribunals of attributed jurisdiction (juridictions d’attribution); a juris-
diction based on the consent of the parties or litigants and confined within the
limits of this consent.187

182
Abaclat, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August
2011, §536.
183
Abaclat, ICSID Case No. ARB/07/5, Abi-Saab, diss., 28 October 2011, §188.
184
Abaclat, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August
2011, §537. See also §484.
185
Abaclat, ICSID Case No. ARB/07/5, Abi-Saab, diss., 28 October 2011, §§253–5.
186 187
Ibid., §256. Ibid., §257 (internal reference omitted).
 implementation by judicial process 641

19.5.3 Compensation as an incident of criminal proceedings

There have recently been developments in international criminal law
towards providing compensation for victims of international crimes. The
Rules of Evidence and Procedure of the International Criminal Tribunal
for the former Yugoslavia (ICTY), the International Criminal Tribunal for
Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) all include
the following provision:
(A) The Registrar shall transmit to the competent authorities of the States
concerned the judgement finding the accused guilty of a crime which has caused
injury to a victim.
(B) Pursuant to the relevant national legislation, a victim or persons claiming
through the victim may bring an action in a national court or other competent
body to obtain compensation.
(C) For the purposes of a claim made under paragraph (B) the judgement of the
Tribunal shall be final and binding as to the criminal responsibility of the
convicted person for such injury.188

The rule has its basis in Security Council Resolution 827 (1993), which
adopted the ICTY’s Statute and declared that ‘the work of the International
Tribunal shall be carried out without prejudice to the right of the victims
to seek, through appropriate means, compensation for damages incurred
as a result of violations of international humanitarian law’.
This mechanism has not, however, been very successful in practice. It
appears that no application was made by victims pursuant to it, and in
2000 judges of the ICTY admitted that the rule was ‘unlikely to produce
substantial results in the near future’.189 In the same report, the judges
argued for the establishment of a UN claims commission for the compen-
sation of victims of international crimes in the former Yugoslavia. No
action has, however, been taken on this.190
Compensation for victims has been dealt with more comprehensively
by the International Criminal Court (ICC). Paragraphs 1 and 2 of Article
75 of the Rome Statute provide:

188
ICTY, Rules of Evidence and Procedure, rule 106, adopted 11 February 1994; ICTR, Rules
of Procedure and Evidence, rule 106, adopted 29 June 1995; SCSL, Rules of Procedure
and Evidence, rule 105, amended 7 March 2003.
189
See Schabas (2006), 150; and the Letter dated 12 October 2000 from the President of the
International Tribunal for the Former Yugoslavia addressed to the Secretary-General,
UN Doc. S/2000/1063, appendix, §45.
190
Schabas (2006), 150.
642 the implementation of responsibility

1. The Court shall establish principles relating to reparations to, or in respect of,
victims, including restitution, compensation and rehabilitation. On this basis, in
its decision the Court may, either upon request or on its own motion in exceptional
circumstances, determine the scope and extent of any damage, loss and injury to,
or in respect of, victims and will state the principles on which it is acting.
2. The Court may make an order directly against a convicted person specifying
appropriate reparations to, or in respect of, victims, including restitution, com-
pensation and rehabilitation.

The Court’s Rules of Procedure and Evidence further specify that

‘[t]aking into account the scope and extent of any damage, loss or injury,
the Court may award reparations on an individualized basis or, where it
deems it appropriate, on a collective basis or both.’191 The Court may
also make use of experts in determining the amount and type of repar-
ation.192 The Court further provides a mechanism for enforcing its order
for reparation through its states parties, although this may not be very
effective if (as is likely) the convicted person claims indigence.193
Perhaps partly to cater for the eventuality that it is not possible to
obtain the necessary funds for reparation from the convicted person, the
Court has also set up a Trust Fund for Victims, ‘for the benefit of victims
of crimes within the jurisdiction of the Court, and of the families of such
victims’.194 This Fund may receive money and other property collected
through fines or forfeiture, transferred to it by order of the Court.195 It is
also funded by donations from private individuals and corporations.
Apart from awarding compensation to individual or collective groups
of victims, the Trust Fund may also award reparations through an
intergovernmental, international or national organization.196 The Fund
has started operating and is currently functioning as a type of NGO in
states under investigation by the Court.197
The ICC has for the first time had to address the issue of reparations,
in connection with the conviction of Thomas Lubanga. In August 2012 a
trial chamber handed down a decision ‘establishing the principles and
procedures to be applied to reparations’.198 It is clear from the decision
that the principles and procedures so set out are limited to the case in

191 192
ICC, Rules of Procedure and Evidence, rule 97(1). Ibid., rule 97(2).
193
See Arts. 75(4), 93(1)(k), 109. See also Schabas, An Introduction to the International Criminal
Court (3rd edn, 2007), 338.
194
Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, Art. 79(1).
195 196
ICC Statute, Art. 79(2). ICC, Rules of Procedure and Evidence, rule 98.
197
See the website of the Trust Fund at www.trustfundforvictims.org.
198
Prosecutor v. Thomas Lubanga Dyilo, Decision establishing the principles and procedures to
be applied to reparations, ICC, Trial Chamber I, 7 August 2012.
 implementation by judicial process 643

question.199 The trial chamber decided that the matter of reparations

would principally be dealt with by the Fund,200 although the Fund’s
ultimate proposals would need to be presented to a chamber of the ICC
for its approval.201 In its decision, the trial chamber adopted a broad
conception of compensable harm.202 This was somewhat tempered by
other statements made by the chamber – namely, its recognition that
there are limited funds available and that non-monetary forms of repar-
ation may be appropriate (such as the conviction and sentence rendered
by the ICC);203 its endorsement of the Fund’s suggestion that a collective,
‘community-based’ approach to reparations is appropriate;204 and its
recognition that Lubanga himself would only be able to contribute non-
monetary reparations.205
Compensation is thus increasingly seen as a corollary of international
criminal proceedings. While concluding that the ICC reparation regime
has a potentially significant role to play in victim redress alongside
cognate regimes at the national and international levels, McCarthy iden-
tifies several challenges for the successful operation of the system. He
notes, inter alia, the limited resources available, the selectivity of pros-
ecutions before the ICC and the risk of a fragmented response to harms,
with the crimes persons are accused of being merely a few of the many
crimes committed in an armed conflict.206 Evans identifies other chal-
lenges which raise the more fundamental question whether inter-
national criminal proceedings are an appropriate framework through
which to address the large-scale harms caused in war. She notes the
tension between the interests of victims and the desire for expedition
in the criminal justice process, the inadequacy of international criminal
proceedings as a forum for victims to relate their experiences and the
inability in international criminal proceedings to address comprehen-
sively the questions relating to institutional and state responsibility that
victims wish to explore.207 It remains to be seen how effective the
awarding of compensation at the ICC will be in practice, after the failure
of this mechanism at the ad hoc tribunals. The concerns identified by
McCarthy and Evans raise the question whether this is a context in
which the Chorzów Factory principle cannot and should not be applied.

199 200 201 202

Ibid., §181. Ibid., §261. Ibid., §289(c). Ibid., §230.
203 204 205
Ibid., §§222, 237, 288. Ibid., §274. Ibid., §269.
206
McCarthy (2012), 349–59.
207
Evans, The Right to Reparation in International Law for Victims of Armed Conflict (2012), 123.
20 Invocation in cases involving
multiple parties

20.1 Introduction
Interstate litigation before the International Court of Justice is typically
bilateral.1 A basic assumption underpinning the Court’s Statute is that
there are two parties to a given legal dispute, and that for third parties an
adversarial contentious proceeding is res inter alios acta.2 Complexities
arise when the system is confronted with cases involving multiple
parties, even where, strictly speaking, many of those cases are still
essentially bilateral, in the sense that there are only two ‘sides’ to the
dispute.3 As disputes involving multiple parties are brought with
increasing frequency – already in 1987 Damrosch speculated that ‘the
two-party, zero-sum dispute may well already be the exception rather
than the rule’4 – those complexities merit some discussion.
Of course, the ‘strict bilateralism of the Court’s judicial process’5 does
not mean that other states may not be involved in the wider circum-
stances surrounding a claim. In many situations a third state may have
an interest in the case or its outcome, although it is not a claimant or
respondent. Such an interest may be simply incidental or tangential, or
the state may be more directly connected with the underlying dispute.

1
See Noyes and Smith (1988), 231–8; Gill, Litigation Strategy at the International Court (1989),
91; Chinkin (1993); Rosenne, 2 The Law and Practice of the International Court of Justice
1920–2005 (2006), 539; Besson (2007), 18–19; Aust (2011), 297.
2
Rosenne, 3 Law and Practice of the International Court of Justice 1920–2005 (2006), 1439, 1596.
The Court’s bilateralism mirrors the traditional bilateralism of the law of state
responsibility, on which see e.g. Aust (2011), 13–23, and further Chapter 10.
3
This is not to suggest that two claimants or two respondents will have an identical case
against the other side, however: Gill (1989), 91.
4 5
Damrosch, in Damrosch (1987) 376, 376. Rosenne, 2 (2006), 543.

644
 invocation in cases involving multiple parties 645

In some cases the third state may seek to intervene in the proceedings; in
others it may prefer to remain absent. Both situations can impact on the
claim, as can various other procedural incidents.
This chapter focuses on some of the key issues of judicial admissibility
and procedure that have arisen in cases involving multiple states before
the International Court of Justice.6 These issues are related to, but
distinct from, the principles and conditions for establishing and invok-
ing state responsibility in situations involving a plurality of states.7 State
responsibility arises independently of whether or not it is actually
invoked by an injured state or states.8 The ARSIWA are not directly
concerned with the separate questions of jurisdiction and admissibility
in the context of international dispute resolution.9

20.2 Multiple claimants

There are several examples of cases involving multiple claimant states in
the jurisprudence of the Court. One early example was the Wimbledon,
proceedings brought by the United Kingdom, France, Italy and Japan
(with Poland intervening) against Germany.10 Others have included the
South West Africa cases, initiated by Ethiopia and Liberia against South
Africa,11 the North Sea Continental Shelf cases involving Denmark, the
Netherlands and the Federal Republic of Germany,12 the Nuclear Tests

6
For multi-party dispute resolution in an arbitration context see e.g. Hanotiau, Complex
Arbitrations: Multiparty, Multicontract, Multi-issue and Class Actions (2005); Permanent Court
of Arbitration, Multiple Party Actions in International Arbitration (2009).
7
For discussion of situations involving a plurality of responsible states as a matter of
substance, see Chapter 10. For situations involving a plurality of injured/claimant states
as a matter of substance, see Chapter 17. For mass claims procedures, see Chapter 19.
8
ARSIWA, Art. 1; Crawford, in Crawford, Pellet and Olleson (2010) 931.
9
Crawford, Third Report, 65–6. An exception is found in Art. 44, which covers certain
fundamental questions of admissibility. Thus a state’s responsibility may not be invoked
if the claimant has not complied with applicable rules regarding the nationality of
claims and the exhaustion of local remedies: see further ARSIWA Commentary, Art. 44,
and Chapter 17. These rules will normally not apply to responsibility for breaches of
communitarian norms: see Chapter 11.
10
SS Wimbledon, (1923) PCIJ Ser. A No. 1. For discussion see ARSIWA Commentary,
Art. 46, §3.
11
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), ICJ Rep. 1966 p. 6. These
claims were joined by the Court and treated as a single case; see Order, 20 May 1961, ICJ
Rep. 1961 p. 13.
12
North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/
Netherlands), ICJ Rep. 1969 p. 3. These claims were joined by the Court and treated as a
single case; see Order, 26 April 1968, ICJ Rep. 1968 p. 9.
646 the implementation of responsibility

cases between Australia and New Zealand on the one part and France
on the other13 and the Fisheries Jurisdiction cases involving the Federal
Republic of Germany and the United Kingdom against Iceland.14
The foundation for multiple states to bring a claim against a respond-
ent state is laid out in Part III, Chapter I of the ARSIWA, which deals with
invocation of responsibility. An ‘injured state’, as defined in Article 42, is
entitled to invoke the responsibility of the state that breached the obli-
gation;15 Article 46 expressly contemplates that multiple states may be
injured by the same internationally wrongful act, with each having an
independent right to invoke responsibility.16 Thus where the obligation
is an integral one, all states parties to the relevant treaty would be
injured by its breach and entitled to invoke responsibility. An analogy
can be drawn with the right to invoke material breach as grounds for
terminating a treaty under Article 60(2) of the Vienna Convention on the
Law of Treaties (VCLT).17
Further, Article 48(1) provides a state other than an injured state with
a right to invoke responsibility 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.18

The right to invoke responsibility is limited under Article 48(2) to

claiming cessation and assurances and guarantees of non-repetition of
the internationally wrongful act, and performance of the obligation
of reparation in the interest of the injured state or the beneficiaries of
the obligation breached.
Article 48 and its commentary do not make express reference to a
plurality of states invoking responsibility, nor does the provision refer
back to Article 46 in the way it refers back to Articles 43, 44 and 45 (see
Article 48(3)). Nonetheless, it is clear that multiple states could invoke

13
Nuclear Tests (Australia v. France), ICJ Rep. 1974 p. 253; Nuclear Tests (New Zealand v. France),
ICJ Rep. 1974 p. 457. These claims (though heard together) were not joined, in part
because the remedies sought were slightly different.
14
Fisheries Jurisdiction (UK v. Iceland), ICJ Rep. 1975 p. 3; Fisheries Jurisdiction (Federal Republic of
Germany v. Iceland), ICJ Rep. 1975 p. 175. Again, these claims were not joined.
15 16
See ARSIWA Commentary, Art. 42. Ibid., Art. 46.
17
22 May 1969, 1155 UNTS 331. See Crawford, Third Report, 76; Huesa Vinaixa (2010),
952–3.
18
ARSIWA Commentary, Art. 48. See further Gaja (2010) 957; Vaurs-Chaumette (2010).
 invocation in cases involving multiple parties 647

responsibility under Article 48 simultaneously, or along with states

claiming on the basis of their status as injured states under Article 42.
First, there is nothing in the language of Article 48 that limits action
under that provision to a single state – it simply provides that ‘any State
other than an injured State’ has a right to invoke responsibility if the
conditions in Article 48(1)(a) or (b) are met. Second, the whole premise of
Article 48 is to enable action in the collective interest to uphold multilat-
eral arrangements that ‘transcend the sphere of bilateral relations of the
states parties’.19 Finally, the commentary to Article 46 recognizes that a
plurality of claimant states may be a mix of injured states and states
invoking responsibility under Article 48, not just a plurality of injured
states, noting that ‘in such cases it may not be necessary to decide into
which category they fall, provided it is clear that they fall into one or the
other’.20
As formulated, Articles 42, 46 and 48 resolve some of the serious
problems with the first reading Draft Article 40, which designated large
numbers of states as ‘injured’ by breaches of multilateral obligations
without making distinctions between their legal status or degree of
involvement with the facts. Although a breach of a multilateral obliga-
tion may still cause injury to numerous states, under the ARSIWA it is
clear that the grounds for invoking responsibility will depend on
whether the state is a primary victim of the breach, or is seeking to
uphold a wider collective interest, and the remedies available will differ
accordingly.21 Beyond the cases specified in the ARSIWA, special rules
may also exist to determine which states may invoke responsibility in
particular circumstances. In Wimbledon, for example, Article 386 of the
Treaty of Versailles provided the basis for invocation of responsibility by
the four claimants (of which probably only France was an injured state in
terms of Article 42).22 ARSIWA Article 55 (lex specialis) makes it clear that
such special rules will take precedence.
Of course, the fact that multiple states may invoke responsibility over
the same act or transaction does not imply uniform outcomes for each
claimant. The factual and legal basis for each state’s invocation of respon-
sibility may well be different. The Wimbledon case again provides an
example: France claimed and was awarded compensation, but the other

19
ARSIWA Commentary, Art. 48, §7. On the background to Art. 48 see further Chapter 11.
20
ARSIWA Commentary, Art. 46, §4. See further ibid., Pt III, Ch. I, §3, which confirms that
Arts. 42 and 48 are not mutually exclusive.
21
Crawford, Third Report, 76.
22
(1923) PCIJ Ser. A No. 1, 20; ARSIWA Commentary, Pt III, Ch. I, §5.
648 the implementation of responsibility

claimant states sought only declaratory relief as to the legal situation.23

Injured states seeking compensation cannot recover more than the extent
of their own injury; states other than injured states cannot claim repar-
ation in their own right but only the remedies set out in Article 48(2).
Difficulties may nonetheless arise if the remedies sought by one claim-
ant conflict with those sought by another, for example where one state
seeks restitution while another prefers compensation.24 The commen-
tary to Draft Article 44 adopted on first reading acknowledged the need
for consideration of the implications in such situations.25 In practice,
however, such problems have arisen infrequently, and ultimately the ILC
did not feel the matter required regulation in the ARSIWA.
Multiple claims must not result in unduly burdensome obligations on
the respondent, and although this is not formally required it is generally
acknowledged that claimants should work together to find a practical
solution to prevent this.26 In the hypothetical context of claims against
a responsible state being brought both by the United Nations and by the
state of nationality of an individual victim, the International Court has said:
Although the bases of the two claims are different, that does not mean that the
defendant State can be compelled to pay the reparation due in respect of the
damage twice over. 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.
. . . [I]t is worthy of note that already certain States whose nationals have been
injured in the performance of missions undertaken for the Organization have
shown a reasonable and co-operative disposition to find a practical solution.27

20.3 Multiple respondents

As the other side of the coin, claims may also involve multiple respondents.
This is the procedural corollary of the principle of independent responsi-
bility set out in ARSIWA Article 47 and discussed in Chapter 10: each
23
(1923) PCIJ Ser. A No. 1. See further Crawford, Third Report, 76 n. 540.
24
This problem arose in Forests of Central Rhodope, (1933) 3 RIAA 1405; see Crawford, Third
Report, 76; ARSIWA Commentary, Art. 46, §4.
25
See ILC Ybk 1993/II(2), 71 (the earlier Draft Art. 8 became Draft Art. 44 as adopted on first
reading).
26
E.g. the co-operation between Israel, the United States and the United Kingdom when
formulating their claims against Bulgaria after the 1955 aerial incident: see Aerial
Incident of 27 July 1955 (Israel v. Bulgaria), Memorial of the Government of Israel, 2 June
1958, 106; ARSIWA Commentary, Art. 46, §3 n. 744.
27
Reparation for Injuries Suffered in the Service of the United Nations, ICJ Rep. 1949 p. 174, 186.
 invocation in cases involving multiple parties 649

state is specifically responsible for its own conduct, and this responsi-
bility is not diminished or reduced by the fact that other states partici-
pated in the commission of the act, or were otherwise implicated in the
wrongful conduct, for example by their provision of aid or assistance.
The jurisprudence contains examples of cases brought against multiple
respondents. Uganda, Rwanda, and Burundi were each respondents in
the Armed Activities on the Territory of the Congo cases;28 Libya filed its
claims in the Lockerbie dispute against both the United Kingdom and
the United States;29 and following the Kosovo crisis Yugoslavia
commenced ten separate proceedings questioning the legality of the
use of force by ten different NATO member states.30
Given that the factual circumstances underlying most interstate dis-
putes are not bilateral but more complex,31 it is perhaps surprising that
cases against multiple respondents are not more common. In Certain
Phosphate Lands in Nauru, for example, Nauru brought its claim against
Australia alone, despite having asserted grievances against New Zealand
and the United Kingdom together with Australia in correspondence; it
stated that its claim against Australia was without prejudice to its
position that the other states were also responsible.32 The principal
reason for reticence in that case was jurisdictional: although New Zeal-
and’s acceptance of jurisdiction in its Optional Clause declaration was in
essence framed in the same terms as Australia’s, that of the United

28
Judgment was given in the case against Uganda in 2005: Armed Activities on the Territory of
the Congo (DRC v. Uganda), ICJ Rep. 2005 p. 168. The DRC discontinued its proceedings
against Rwanda and Burundi in 2001 (see Armed Activities on the Territory of the Congo (DRC
v. Rwanda), Order, 30 January 2001; Armed Activities on the Territory of the Congo (DRC v.
Burundi), Order, 30 January 2001, ICJ Rep. 2001 p. 3), but subsequently filed a new
application against Rwanda, which was dismissed for lack of jurisdiction: Armed Activities
on the Territory of the Congo (New Application: 2002) (DRC v. Rwanda), Jurisdiction and
Admissibility, ICJ Rep. 2006 p. 6.
29
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libya v. UK), Preliminary Objections, ICJ Rep. 1998 p. 9; Questions
of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libya v. US), Preliminary Objections, ICJ Rep. 1998 p. 115.
30
The respondent states in the Legality of Use of Force cases were Belgium, Canada, France,
Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United
States. All claims were dismissed for lack of jurisdiction but at various stages and on
various grounds: see e.g. Legality of Use of Force (Yugoslavia v. US), Provisional Measures, ICJ
Rep. 1999 p. 916; Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary
Objections, ICJ Rep. 2004 p. 279.
31
Damrosch (1987); Chinkin (1993), 16.
32
See Certain Phosphate Lands in Nauru (Nauru v. Australia), ICJ Rep. 1992 p. 240, 341–2 (Judge
Schwebel, diss.).
650 the implementation of responsibility

Kingdom diverged; a claim against all three states might have failed
against the United Kingdom while being seen as conceding the principle
of joint responsibility.33 But there may be many different political,
strategic, evidential, and factual elements contributing to a claimant
state’s decision to name state A as sole respondent instead of or as well
as claiming against state B. For a claimant it might be more straightfor-
ward to bring its claim against a single respondent even when there are
multiple responsible parties. Even in a case against multiple respondents
it cannot be assumed that all responsible parties have been named.
Conversely, from a respondent’s perspective it may well be preferable
for other allegedly responsible states to be involved in the proceedings. In
Military and Paramilitary Activities in and against Nicaragua, Nicaragua only
claimed against the United States, although it subsequently also com-
menced separate proceedings against Honduras and Costa Rica.34 This
reduced a complex multilateral regional dispute down to a bilateral claim
against the most powerful opponent, and the United States as sole respond-
ent argued (unsuccessfully) that the case could not proceed in the absence
of the states in whose collective self-defence it was allegedly acting.35
As Noyes and Smith put it, ‘Any mature legal system governing the
conduct of actors in a society must contemplate multiple party responsi-
bility for wrongs.’36 While the litigation framework of the International
Court does have scope for dealing with cases involving multiple respond-
ents and multiple responsible parties, such cases continue to present
various difficulties of procedure and admissibility.

20.4 Intervention by third states

Despite the predominantly bilateral character of international claims,
there is provision in the Statute of the International Court for interested
third parties to intervene in proceedings before the Court on two
grounds: either because they are able to satisfy the Court that they have
an interest of a legal nature which may be affected by the decision in
33
As noted by Judge Ago, diss.: ibid., 327. Fortunately, Australia’s position in the
administration of Nauru was different and primary, as the Court noted in dismissing
Australia’s preliminary objections: ibid., 258.
34
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), Jurisdiction
and Admissibility, ICJ Rep. 1984 p. 392. Both the later proceedings were discontinued by
Nicaragua: Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Order, 19 August
1987, ICJ Rep. 1987 p. 182; Border and Transborder Armed Actions (Nicaragua v. Honduras),
Order, 27 May 1992, ICJ Rep. 1992 p. 222.
35 36
See discussion in Chinkin (1993), 16–17. Noyes and Smith (1988), 266.
 invocation in cases involving multiple parties 651

the case (Article 62), or because the case involves a question of the
construction of a convention to which that third state is a party
(Article 63).37 The procedural requirements for intervention are specified
in the Rules of Court.38
In Article 62 situations it is for the state seeking to intervene to
identify its interest and show how that interest ‘may’ (not ‘will’ or
‘must’) be affected, so that the Court can come to a decision on the limits
and scope of any permitted intervention.39 Under Article 63, if a state is
party to the convention in question then it may intervene in the proceed-
ings as of right, at least in theory;40 the intervening state will then be
bound by the Court’s interpretation of the treaty as if it were a party to
the proceedings.41 The similarities and differences between the two
types of intervention in terms of the Statute may be somewhat artificial
in practice, however, and the attitude of the primary parties to the case
will influence the Court’s decision.42
In Wimbledon, Poland applied to intervene under the equivalent provi-
sions of the Statute of the Permanent Court. Initially it based its applica-
tion on a legal interest in the case, but subsequently relied solely on its
right to intervene as a party to the Treaty of Versailles; the intervention
was permitted.43 The Cuban application to intervene under Article 63 in

37
On intervention see further e.g. Jessup, (1981) 75 AJIL 903; Chinkin (1993), 147–85;
Rosenne, Intervention in the International Court of Justice (1993); Chinkin, ‘Article 62’ and
Chinkin, ‘Article 63’, in Zimmermann, Tomuschat and Oellers-Frahm (2006), 1331–92;
Rosenne (2006), 3 Law and Practice, 1439–506.
38
See ICJ, Rules of Court, 1 July 1987, Arts. 81–6.
39
See Jurisdictional Immunities of the State (Germany v. Italy), Application to Intervene by
Greece, Order, ICJ, 4 July 2011, §22; Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras), Application to Intervene by Nicaragua, ICJ Rep. 1990 p. 92, 117–18; Territorial
and Maritime Dispute (Nicaragua v. Colombia), Application to Intervene by Costa Rica, ICJ,
4 May 2011, §25; Territorial and Maritime Dispute (Nicaragua v. Colombia), Application to
Intervene by Honduras, ICJ, 4 May 2011, §§35–7.
40
Cf. El Salvador’s declaration of intervention under Art. 63, which was declared
inadmissible by the Court in Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. US), Declaration of Intervention, Order, 4 October 1984, ICJ Rep. 1984 p.
215.
41
Art. 63(2). This is an exception to the general rule whereby decisions of the Court are
only binding as between the parties to the dispute (Art. 59). On the non-discretionary
character of Art. 63 see e.g. Haya de la Torre (Colombia v. Peru), ICJ Rep. 1951 p. 71, 76;
Territorial and Maritime Dispute (Nicaragua v. Colombia), Application to Intervene by
Honduras, ICJ, 4 May 2011, §§31–5. See further Fitzmaurice (1958), 125–7; Sztucki,
(1985) 79 AJIL 1005, 1029–31; Damrosch (1987), 381; Chinkin (2006) 1369, 1372–4.
42
See Sztucki (1985), 1030–1; Gill (1989), 92–4; Chinkin (1993), 193; Chinkin (2006) 1369,
1372–4.
43
(1923) PCIJ Ser. A No. 1.
652 the implementation of responsibility

the Haya de la Torre case was also granted, but the Court limited Cuba’s
participation to presentations on aspects of the relevant treaty that had
not already been interpreted in the Asylum judgment, indicating that the
right in Article 63 is not absolute.44 The black sheep of the Article 63
jurisprudence is the Court’s decision to reject El Salvador’s declaration
of intervention, without a hearing, at the preliminary objections phase
of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
US).45 The Court’s response to El Salvador’s declaration contained virtu-
ally no reasons, coming across as ‘on some points ambiguous, and on
others evasive’.46 The declaration of intervention was based squarely on
Article 63, which in terms of the Statute should have left no room for
discretion; even if the matter was considered under Article 62, it was
clear that El Salvador had a legal interest in the subject matter of the
dispute – and in any case there was no basis for denying El Salvador a
hearing in accordance with Article 84(2) of the Rules of Court. The
judgment cast doubt on the prevailing understanding that Article 63
provided a non-discretionary (albeit qualified) right of intervention, and
has been the subject of considerable criticism.47
As for discretionary intervention under Article 62, two such applica-
tions in the 1980s also failed,48 as did the Philippines’ ill-considered
application in Sipadan and Ligitan;49 more recently the Court has rejected
two more.50 In fact, applications to intervene on the basis of an interest
in the case have only been granted on three occasions. The decision of
the chamber allowing Nicaragua to intervene in the El Salvador/Honduras
frontier dispute clarified that a state intervening under Article 62 does
not automatically become a party to the case, with all the rights and

44
Haya de la Torre (Colombia v. Peru), ICJ Rep. 1951 p. 71, 76–7.
45
Nicaragua, Declaration of Intervention, Order, 4 October 1984, ICJ Rep. 1984 p. 215.
46
Sztucki (1985), 1006.
47
E.g. Nicaragua, Declaration of Intervention, Order of 4 October 1984, ICJ Rep. 1984 p. 215,
223–44 (Judge Schwebel, diss.); Sztucki (1985); Damrosch (1987), 384–8; Chinkin (1993),
179–80, 191–3; Chinkin (2006) 1369. For Judge Lachs’ subsequent recantation see Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Rep. 1986 p. 14,
170–1.
48
Continental Shelf (Tunisia/Libya), Application to Intervene by Malta, ICJ Rep. 1981 p. 3;
Continental Shelf (Libya/Malta), Application to Intervene by Italy, ICJ Rep. 1984 p. 3.
49
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Application to
Intervene by the Philippines, ICJ Rep. 2001 p. 575. Both parties opposed the intervention.
The application was ill-advised in that it exposed the incoherence of the Philippines’
claim to Sabah: ibid., 626–9 (Judge Kooijmans).
50
See Territorial and Maritime Dispute (Nicaragua v. Colombia), Application to Intervene by
Honduras, ICJ, 4 May 2011, and Application to Intervene by Costa Rica, 4 May 2011, ICJ.
 invocation in cases involving multiple parties 653

obligations that that status entails – although nor does the Statute
prevent an intervening state from joining as a party with the consent of
the original parties.51 No jurisdictional link is required between a state
applying to intervene as a non-party and the original parties to the
case;52 but if the intervener does wish to become a party, a jurisdictional
link must be established with both parties.53 Equatorial Guinea was
permitted to intervene as a non-party in the maritime boundary aspects
of the dispute between Cameroon and Nigeria, in order to protect its own
rights in the Gulf of Guinea and to inform the Court as to the extent of its
rights and interests that could be affected by the determination of the
Cameroon/Nigeria boundary.54 Most recent was the Greek intervention
in Germany v. Italy.55 The Court gave permission for Greece to intervene
as a non-party, but limited the scope of its intervention to those ques-
tions associated with decisions of Greek courts relating to the Distomo
massacre in 1944 which the Court might need to consider in deciding the
case between Germany and Italy.56
In summary, the Court’s attitude to third-party intervention has been
mixed, and although the jurisprudence has elucidated some of the prin-
ciples to be applied, the outcome of any given application is not wholly
predictable, even under Article 63. As a matter of policy, there are good
reasons for maintaining a liberal approach to applications for interven-
tion and permitting voluntary third-party involvement unless there are
strong arguments against it.57 Not least of these is the desirability of
efficient resolution of multilateral disputes within a single proceeding,
rather than leaving the position uncertain as regards third parties. And,
from a practical perspective, the more information the Court has before

51
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Order, 28 February 1990,
ICJ Rep. 1990 p. 92, 134–5.
52
Ibid., 135. This amounted to a relaxation of the requirement of consent: see Lauterpacht,
Aspects of the Administration of International Justice (1991), 26–30.
53
See ICJ, Rules of Court, Art. 81(2)(c), as further discussed in Territorial and Maritime Dispute
(Nicaragua v. Colombia), Application to Intervene by Honduras, ICJ, 4 May 2011, §§27–9.
54
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Order, 21
October 1999, ICJ Rep. 1999 p. 1029. Neither party opposed the intervention. See further
Thirlway, (2010) 81 BYIL 13, 145–7.
55
See Jurisdictional Immunities, Application to Intervene by Greece, Order, 4 July 2011, ICJ.
56
Ibid., §§25–6, 32.
57
For discussion of policy considerations on both sides see Damrosch (1987), 387–8;
Chinkin (1993), 181–5. For suggestions of how the Court’s dealings with third parties
(including non-states) could be improved, see Chinkin, in Peck and Lee (1997) 43, 47–56;
for arguments in favour of a procedure of intervention in the public interest see e.g.
Chinkin (1993), 214–16.
654 the implementation of responsibility

it, the better equipped it will be for acquiring a true understanding of

the factual background of the dispute on which to base its legal analysis;
this suggests that leaving questions of intervention to the merits phase
is advisable.58
Of course, third parties should not through their intervention be
allowed to change the nature of the main proceedings between the
original parties by introducing a new case or attempting to re-litigate a
res iudicata.59 There may be other legitimate reasons why the original
parties prefer to keep the dispute within the confines of the bilateral
framework. Nor is third-party intervention intended as a mechanism
for lodging protests that are better aired in diplomatic forums.60 But
the intervention procedures provide a ‘preventive’61 mechanism for
addressing in advance the potential consequences for third states of
the Court’s decisions, and protecting the legitimate interests of those
states. It is true that a measure of protection is afforded by Article 59
of the Statute, which provides that the Court’s decisions are binding
only on the parties to the particular dispute.62 Further, the Court has
taken the view that ‘the protection of third States’ interests by the
Court is to be accorded whether they apply to intervene or not’.63 In
Continental Shelf (Libya/Malta), all Italy’s goals were achieved through
its very application for intervention, even though the application was
rejected.64
But the reality is that these considerations are not always enough: for
El Salvador the ultimate judgment on the merits of Nicaragua v. US, after
its attempted intervention was declared inadmissible at the preliminary
objections stage, was arguably ‘as prejudicial to El Salvador as if [it] had
58
Damrosch (1987), 400. There are arguments for the development of an amicus curiae
procedure for states to submit information to the Court in contentious cases, similar to
that allowed to public international organizations under the Statute of the International
Court of Justice, 26 June 1945, 15 UNCIO 355, Art. 34; see e.g. Chinkin (1993), 226–9.
59
Haya de la Torre (Colombia v. Peru), ICJ Rep. 1951 p. 71, 77; Libya/Malta, Application to
Intervene by Italy, ICJ Rep. 1984 p. 3, 20; El Salvador/Honduras, Application to Intervene by
Nicaragua, ICJ Rep. 1990 p. 92, 134; Territorial and Maritime Dispute (Nicaragua v. Colombia),
Application to Intervene by Honduras, ICJ, 4 May 2011, §47.
60
Chinkin (1993), 195.
61
Territorial and Maritime Dispute (Nicaragua v. Colombia), Application to Intervene by
Honduras, ICJ, 4 May 2011, §38.
62
See generally Bernhardt, in Zimmermann, Tomuschat and Oellers-Frahm (2006) 1231,
esp. 1247–51; Chinkin (2006) 1369, 1390–1; Rosenne (2006), 3 Law and Practice, 1570–8.
63
Territorial and Maritime Dispute (Nicaragua v. Colombia), Application to Intervene by Costa
Rica, ICJ, 4 May 2011, §86.
64
Libya/Malta, Application to Intervene by Italy, ICJ Rep. 1984 p. 3, 31–3 (Judge Nagendra
Singh).
 invocation in cases involving multiple parties 655

participated fully and lost’.65 The interests of justice are unlikely to be

served by contriving to deal with disputes that are genuinely multilateral
in character by characterizing them artificially as bilateral. It remains
the case, however, that various factors make states themselves typically
reluctant to attempt to intervene in proceedings unless they perceive
that there are substantial interests of their own at stake; the small
number of applications to intervene in the jurisprudence by no means
reflects how frequently bilateral proceedings affect the legal interests of
third states.66

20.5 The Monetary Gold principle: ‘indispensable’ third states

It follows that cases will arise in which a third state which is neither a
claimant nor a respondent has an interest in the case but chooses to
remain absent from the proceedings, rather than applying to intervene.
States are entitled to abstain from participating in proceedings for their
own reasons, whatever they may be.67 In such cases, the Court has
generally proved reluctant to make decisions that would involve directly
pronouncing on the legal position of absent third parties, on the basis
that they have not consented to the jurisdiction of the Court.68 An early
example in which the consent principle was used as a bar to proceedings
in order to protect absent third parties was Status of Eastern Carelia, but
that was an advisory opinion.69 In the context of contentious proceed-
ings, the principle is commonly associated with the Monetary Gold case.70
65
Damrosch (1987), 387. See also Chinkin (1993), 182, for discussion of the evidence that
the dispute ‘could not be accurately presented as a bilateral affair’: the US arguments on
‘indispensable parties’, El Salvador’s declaration of intervention, the difficulties the
Court faced in establishing the facts without the participation of El Salvador or the
United States, and the fact that Nicaragua later filed proceedings against Honduras and
Costa Rica in connection with the same events.
66
Gill (1989), 91–2.
67
Chinkin (1993), 198–212. For example, Indonesia would have seen no benefit in applying
to intervene in East Timor (Portugal v. Australia), ICJ Rep. 1995 p. 90; Iraq remained a
‘hidden third party’ in Oil Platforms (Iran v. US), ICJ Rep. 2003 p. 161, 320 (Judge Owada).
68
On the principle of consent to jurisdiction see e.g. Rights of Minorities in Upper Silesia
(Minority Schools), (1928) PCIJ Ser. A No. 15, 22; Corfu Channel (UK v. Albania), Preliminary
Objections, ICJ Rep. 1948 p. 15, 27–8; Anglo-Iranian Oil Co., Jurisdiction, ICJ Rep. 1952
p. 93, 102–3; Ambatielos (Greece v. UK), ICJ Rep. 1953 p. 10, 19. For discussion see further
Rosenne (2006), 2 Law and Practice, 549–57.
69
(1923) PCIJ Ser. B No. 5. The Court declined to render an advisory opinion, as requested
by the League of Nations, after the Soviet Union had refused to consent to the
adjudication of a treaty-based dispute with Finland over the status of Eastern Carelia.
70
Monetary Gold Removed from Rome in 1943 (Italy v. France, UK and US), ICJ Rep. 1954 p. 19.
656 the implementation of responsibility

The case has justly been described as one of ‘exceptional singularity’.71

After the end of the Second World War, Italy brought a claim against
France, the United Kingdom and the United States asserting a right to
certain Albanian gold in the respondents’ hands.72 The Italian claim was
based on an unliquidated claim for damages against Albania; it was
opposed by the United Kingdom whose liquidated claim against Albania
was based on the Corfu Channel judgment. In order to avoid return of the
gold to Albania, or its transfer to the United Kingdom in satisfaction of
the judgment debt, Italy commenced proceedings against the three
respondents, but then argued that the Court could not determine the
matter without Albania’s consent to jurisdiction, which had been with-
held.73 Faced with ‘such a novelty to the judicial process as an attack on
jurisdiction by a plaintiff’,74 the Court agreed: Albania’s legal interests
‘would not only be affected by a decision, but would form the very
subject-matter of the decision’.75 The Court could not decide on the
rights to the gold as between the claimant and respondents without
deciding the legal position as between Albania and Italy, so in the
absence of Albania’s consent, the claim was held inadmissible.
Although the principle of indispensable third parties is valid, it is
suggested that the case was wrongly decided. Italy had no property right
in the gold, which was monetary gold seized by Italian troops during the
unlawful Italian invasion of Albania in the 1930s. Nor did it have any lien
over the gold arising from its unliquidated (and unproved) in personam
claims against Albania. The tactically brilliant Italian move – which held
up the return of the gold to Albania for fifty years – should have been
dismissed on the simple ground that a state cannot at the same time
affirm and deny jurisdiction over its own claim.76

71
Aerial Incident of 3 July 1988 (Iran v. US), Order, 13 December 1989, ICJ Rep. 1989 p. 132,
140 (Judge Schwebel).
72
For more detailed discussion of the complex background to the claim and the connection
between the Monetary Gold proceedings and the unpaid damages awarded to the United
Kingdom in Corfu Channel, ICJ Rep. 1949 p. 4, see Oliver, (1955) 49 AJIL 216; Lauterpacht
(1958), 342–3; Aust (2011), 298–300. For the eventual settlement see Waibel, ‘Corfu
Channel case’ (2009) MPEPIL, §§18–20; Corfu Channel Incident: Correspondence and
Papers Relating to the Claim against Albanian Government Memorandum of
Understanding between the Governments of Albania and of the United Kingdom, 8 May
1992, (1992) 63 BYIL 781.
73 74
Monetary Gold, ICJ Rep. 1954 p. 19, 22–4. Oliver (1955), 216.
75
Monetary Gold, ICJ Rep. 1954 p. 19, 32.
76
Brownlie’s Principles, 698–9. It would then have been for the three custodians to decide
whether to maintain the principle of in specie return or to give priority to the United
Kingdom’s judgment debt. Cf. Oliver (1955), 221.
 invocation in cases involving multiple parties 657

The Monetary Gold principle has been both applied and distinguished in
subsequent decisions, and it is surrounded by an aura of uncertainty.
One thing that is clear, however, is that the principle is one of judicial
competence, not a substantive determinant of responsibility.77

20.5.1 The scope of the principle

Rosenne states the principle as follows:
The Court will not have jurisdiction over a duly constituted bilateral contentious
case introduced by unilateral application if it appears that the principal issue to
be decided, whatever the title of jurisdiction, requires the Court to pass on the
legal position of a third State which is a not a party to the proceedings . . . The
bilateralism of proceedings in the International Court coupled with the consen-
sual basis of the Court’s jurisdiction may deprive it of jurisdiction if it concludes
that the real subject matter of the dispute is the legal position of a third State
which is not a party to the proceedings. It is immaterial whether that third
State’s absence from the proceedings is a voluntary decision on its part or
whether it has not been directly impleaded by either of the original parties.78

The fundamental rationale behind the Monetary Gold principle is ‘elem-

ental due process’ in preventing the Court from passing judgement on
the legal position of non-parties in their absence and without their
consent.79 The importance of consent as the foundation for the exercise
of the Court’s jurisdiction is beyond question. But, equally, the consent
of the parties to a legitimately constituted case before the Court must not
lightly be overridden by the interests of absent parties. The difficulty is
to strike the appropriate balance between these two consent-based con-
siderations – the need to avoid imposing jurisdiction on an absent state
without its consent, and the need to avoid giving an absent state an
effective power of veto over the parties’ consent to have the position
between themselves determined by the Court.80 Views differ as to
whether the practical application of the rule in the Court’s subsequent
jurisprudence has been ‘unpredictable’81 and offers only limited guid-
ance,82 or whether the Court ‘has been very careful to keep this discretion
[to refuse to exercise jurisdiction] within clearly identifiable limits’.83

77 78
Crawford, Third Report, 76. Rosenne (2006), 2 Law and Practice, 539.
79
Oliver (1955), 221; Chinkin (1993), 200; Aust (2011), 310.
80
See e.g. Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 335 (Judge Schwebel, diss.). See
further Chinkin (1993), 202; Torres Bernárdez, in Wellens (1998) 737, 744–5; Aust (2011),
310–11.
81 82
Tams and Zimmermann, (2008) 51 GYIL 391, 414. Aust (2011), 307.
83
Rosenne (2006), 2 Law and Practice, 544.
658 the implementation of responsibility

20.5.1.1 The Monetary Gold jurisprudence

Thirty years after Monetary Gold, the United States relied on the precedent
to advance an argument that Nicaragua’s claims in Military and Paramili-
tary Activities in and against Nicaragua could not proceed in the absence of
the various Central American states (Honduras, Costa Rica, El Salvador)
allegedly engaged in collective self-defence against Nicaragua, as these
were ‘indispensable parties’ to the case.84 The Court rejected the US
submissions, finding ‘no trace’ of any indispensable third parties rule
in the Statute or the practice of international tribunals, and commenting
that the circumstances of Monetary Gold ‘probably represent the limit of
the power of the Court to refuse to exercise its jurisdiction’.85 None of
the states referred to by the United States in Nicaragua could be regarded
as in the same position as Albania so as to be ‘truly indispensable to the
proceedings’.86
The Court rejected similar arguments on the part of Australia in
Certain Phosphate Lands in Nauru (Nauru v. Australia), by a majority of nine
to four.87 The claim alleged maladministration during the period in
which Australia, New Zealand and the United Kingdom were jointly
responsible for administering the trust territory of Nauru. Australia, as
sole respondent, argued that Nauru’s claim against it was inadmissible
because any judgment on the question of breach of the Trusteeship
Agreement would involve the responsibility of the other two members
of the Administering Authority, being third states that had not con-
sented to the Court’s jurisdiction; in effect, New Zealand and the United
Kingdom were ‘parties to the dispute’ without being parties to the
proceedings.88 The Court, referring to its interpretation of Monetary Gold
in Nicaragua and the application of that interpretation in the context of
Nicaragua’s application to intervene in Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras),89 concluded that the interests of the absent
states did not constitute the very subject matter of the case before it. The
Court distinguished Monetary Gold on the grounds that a finding on the
responsibility of the absent members of the Administering Authority
was not a prerequisite to the assessment of Australia’s responsibility
for breach of its own trusteeship obligations, which was the only object
84
Nicaragua, Counter-Memorial of the United States, 8–9, 134–5; Nicaragua, Jurisdiction
and Admissibility, ICJ Rep. 1984 p. 392, 430–1.
85 86
Ibid., 431. Ibid.
87
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240. The dissenting judges on this preliminary
objection were President Jennings, Vice-President Oda, Judges Ago and Schwebel.
88 89
Ibid., 255. ICJ Rep. 1990 p. 92, 116.
 invocation in cases involving multiple parties 659

of Nauru’s claim. In response to Australia’s argument that the claim was

nonetheless inadmissible because the finding affecting the absent
members would be made at least simultaneously, the Court held that
a finding by the Court regarding the existence or the content of the responsibility
attributed to Australia by Nauru might well have implications for the legal situ-
ation of the two other States concerned, but no finding in respect of that legal
situation will be needed as a basis for the Court’s decision on Nauru’s claims against
Australia. Accordingly, the Court cannot decline to exercise its jurisdiction.90

By contrast, in the East Timor case three years later, the majority of the
Court came down on the side of refusing to exercise jurisdiction.91 By
fourteen votes to two, the Court held that making a determination on
the legality of Australia’s action would require as a prerequisite a deter-
mination of the legality of Indonesia’s conduct, and Indonesia was not
before the Court. On the facts of the case Indonesia’s legal position would
necessarily constitute ‘the very subject-matter of the Court’s decision’.92
Portugal’s assertion that the right of the East Timorese to self-
determination was a right erga omnes was held to be irreproachable,
but ‘the character of the norm and the rule of consent to jurisdiction’
were two different things, and the latter prevented the Court from acting
even when the norms involved had erga omnes status.93
Since East Timor the Court has had various occasions to consider
arguments based on the Monetary Gold principle. It has repeatedly upheld
its jurisdiction where the alleged interests of the absent state are not ‘the
very subject-matter’ of the judgment to be rendered on the merits of the
application, and has consistently reiterated that it is not prevented from
adjudicating when the judgment it is required to give might ‘affect’ the
legal interests of a non-party state.94 Thus, for example, in boundary
delimitation cases it is appropriate that the Court should not refuse
jurisdiction to resolve the dispute between the two states before it just
because a tripoint exists on a frontier with a third state not party to the
proceedings,95 although it will remain ‘mindful’ of the resulting limita-
tions on its jurisdiction.96 It is also clear that ‘it must be open to the

90
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 259–62.
91 92 93
East Timor, ICJ Rep. 1995 p. 90, 100–5. Ibid., 102. Ibid.
94
See e.g. Frontier Dispute (Burkina Faso/Mali), ICJ Rep. 1986 p. 554, 579; Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, ICJ
Rep. 1998 p. 275, 311–12; Armed Activities (DRC v. Uganda), ICJ Rep. 2005 p. 168, 237–8.
95
This notion is applicable in territorial boundary delimitations as well as maritime ones;
the discussion of the case law in Rosenne (2006), 2 Law and Practice, 544–6.
96
ICJ Rep. 2002 p. 303, 421; see further Rosenne (2006), 2 Law and Practice, 545.
660 the implementation of responsibility

Court, and indeed its duty, to give the fullest decision it may in the
circumstances of each case’, even if some elements of the claim are
found to be inadmissible in application of the Monetary Gold principle.97
In Germany v. Italy one of the issues before the Court was whether Italian
courts upholding and enforcing Greek judgments against Germany
violated Germany’s jurisdictional immunity; both parties based their
arguments on whether Greece had itself violated Germany’s immunity.
The Court found that this was a separate question over which it did not
have jurisdiction, because Greece was not a party to the proceedings
between Germany and Italy, and which it did not need to answer in
order to determine whether or not Italy had violated Germany’s immun-
ity through the actions of its own courts.98

20.5.1.2 Uncertainty of application

From the overview just given it would seem that the scope of the
principle is relatively clearly defined. The key, repeatedly emphasized
in the Court’s jurisprudence, is whether the legal position of the third
state is the real subject matter of the dispute. But confusion remains,
and the minority judgments would suggest that there is still some
dissatisfaction with the manner in which the principle has been
applied.
The first issue is the practical one of differentiating between when a
decision will merely ‘affect’ a third state or have implications for it, and
when that state’s interests are the real subject matter of the dispute so
as to trigger the operation of the Monetary Gold principle. Judge Shaha-
buddeen in his separate opinion in Nauru distinguished between a
‘judicial determination purporting to produce legal effects for the
absent Party, as was visualized in the Monetary Gold case’, and ‘merely
an implication in the sense of an extended consequence of the
reasoning of the Court’.99 In practice, however, it is questionable
whether each of the Nauru and East Timor decisions could not feasibly
have gone in another direction using the same test – indeed, even
Monetary Gold itself could have been susceptible of a different outcome
if decided by a tribunal ‘less wedded to the principle of consent’.100
Judge Schwebel, dissenting in Nauru, was unconvinced by the majority’s
97
Libya/Malta, Application to Intervene by Italy, ICJ Rep. 1984 p. 3, 25.
98
Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), ICJ, 3 February
2012, §§121–33.
99
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 296 (Judge Shahabuddeen).
100
Lauterpacht (1958), 343.
 invocation in cases involving multiple parties 661

conclusion that the judgment might affect the legal situation of the
absent parties but without effectively determining their responsibil-
ity;101 in the same case, President Jennings was of the opinion that it
was ‘surely manifest’ that the legal interests of the absent states would
form the very subject matter of the decision on the merits.102 Judge
Weeramantry made convincing arguments in dissent in East Timor to
support his view that no finding on Indonesia’s responsibility was
necessary as a basis for determining Portugal’s claim against Australia:
‘[i]f a decision on the claim can be separated from adjudicating with
regard to a State which is not party to the litigation, the Court has
jurisdiction on that claim.’103
A second area of uncertainty is the relationship between the Monetary
Gold principle and the concept of ‘indispensable parties’. Although the
notion of ‘indispensable parties’ is commonly associated with the Monet-
ary Gold principle, it actually originated in the US submissions in
Nicaragua – a case which Judge Schwebel has accused of ‘obfuscating’
the Monetary Gold jurisprudence rather than reinforcing it.104 When the
United States framed its argument in Nicaragua in terms of ‘indispens-
able parties’ the Court was emphatic in its rejection of the concept,
finding ‘no trace’ of such a theory in the Statute or the jurisprudence
of the Court.105 It saw such a theory as ‘only conceivable in parallel to a
power, which the Court does not possess, to direct that a third State be
made a party to proceedings’.106
At first glance the rejection of arguments based on essential parties
might seem to be inconsistent with the finding that the Court could not
proceed in Albania’s absence in Monetary Gold, but, on closer examin-
ation, the two concepts are distinct. Monetary Gold considers whether the
real subject matter of the dispute turns on the rights of an absent party.
The indispensable parties theory instead argues that the case cannot
proceed without the participation of the absent state, and short of the
Court having the power to compel that state’s participation in the
proceedings, the case must be declared inadmissible. The indispensable
parties argument is presented as a plea to protect the absent party’s
position and uphold the principle of consent, but it can also be seen as
a procedural tactic for an unwilling respondent to avoid the Court’s

101
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 331 (Judge Schwebel, diss.).
102
Ibid., 301 (President Jennings, diss.).
103
East Timor, ICJ Rep. 1995 p. 90, 242 (Judge Weeramantry, diss.).
104
Ibid., 332 (Judge Schwebel, diss.).
105 106
Nicaragua, Jurisdiction and Admissibility, ICJ Rep. 1984 p. 392, 431. Ibid.
662 the implementation of responsibility

jurisdiction.107 There is nothing in the Court’s Statute to say that all

essential parties must be involved before it can exercise jurisdiction on
the matters put before it by the claimant and respondent states.108 To
quote Judge Shahabuddeen, who advised caution in adopting an ‘indis-
pensable parties’ rule in litigation before the Court,109
[T]he test to be applied in deciding whether the Court may not properly act is not
simply whether it would have been more convenient to decide an issue with the
presence before the Court of all the States that might be affected by the decision,
but whether the absence of such a State is, in the particular circumstances,
such as to make it impossible for the Court judicially to determine the issues
presented before it even when account is taken of the protective provisions of
Article 59 of the Statute.110

So for the purposes of deciding whether or not the Monetary Gold

principle operates to restrict jurisdiction, the Court has repeatedly
refused to accept arguments framed in a manner that would require it
to find that certain absent parties are indispensable to the proceedings.
Despite the Court’s express rejection of the indispensable parties theory,
the language has been taken up by commentators and it is frequently
used interchangeably with the Monetary Gold principle.111 It is note-
worthy, then, to detect a certain relaxation of the Court’s attitude
towards the indispensable parties theory in DRC v. Uganda.112 The DRC
argued that ‘[i]t is Uganda’s responsibility which is the subject-matter of
the Congolese claim, and there is no other “indispensable party” whose
legal interests would form “the very subject-matter of the decision”, as in
the Monetary Gold or East Timor precedents.’113 The language of the
Court’s response suggests a slight shift towards acknowledgment of
‘indispensable parties’ rather than the traditionally firm rejection of
that terminology. The Court began with the typical Monetary Gold formu-
lation seen in other cases:

107
Torres Bernárdez (1998), 745. In El Salvador/Honduras, Application to Intervene by
Nicaragua, ICJ Rep. 1990 p. 92, it was the state requesting intervention that argued
about indispensable parties, rather than the respondent.
108
Nicaragua, Jurisdiction and Admissibility, ICJ Rep. 1984 p. 392, 431; Phosphate Lands in
Nauru, ICJ Rep. 1992 p. 240, 258–62. See further Torres Bernárdez (1998), 745–9.
109
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 292 (Judge Shahabuddeen).
110
Ibid., 293.
111
Some of judges have even adopted the term: e.g. Judge Simma’s conclusion that ‘the
present case would not have fallen within the restrictive ambit of the doctrine of the
“indispensable third party”’, in respect of Iraq’s involvement in Oil Platforms, ICJ Rep.
2003 p. 161, 359–60 (Judge Simma).
112 113
Armed Activities (DRC v. Uganda), ICJ Rep. 2005 p. 168, 236–8. Ibid., 237.
 invocation in cases involving multiple parties 663

In the present case, the interests of Rwanda clearly do not constitute ‘the very
subject-matter’ of the decision to be rendered by the Court on the DRC’s claims
against Uganda, nor is the determination of Rwanda’s responsibility a prerequis-
ite for such a decision.114

But it also went on to say:

Thus it is not necessary for Rwanda to be a party to this case for the Court to be
able to determine whether Uganda’s conduct was a violation of these rules of
international law.115

The words chosen – ‘thus it is not necessary for Rwanda to be a party’ –

are reminiscent of indispensable parties rather than Monetary Gold. In
practice the two concepts are perhaps more closely related than the
Court’s reaction in Nicaragua might suggest. The link is reflected in
Rosenne’s description of the Monetary Gold principle as a ‘limitation on
the Court’s jurisdiction following from the absence from the litigation
of essential parties’.116
Another feature to note from the litigation arising out of armed
conflict in the DRC is the suggestion in the separate opinion of Judge
ad hoc Dugard in DRC v. Rwanda that the Court’s decision in DRC v.
Uganda to ‘retreat’ from the East Timor and Monetary Gold precedents
and apply instead the Nauru reasoning was influenced by the status of
the norms at issue:
Although the Court did not indicate that its choice was influenced by the fact
that norms of jus cogens were involved in this case, it may safely be assumed that
the gravity of the issues raised influenced the Court’s choice.117

Judge ad hoc Dugard did not elaborate further on this comment, but,
if it is correct, it amounts to a marked distinction from the position
taken in East Timor, where the Court acknowledged the erga omnes
character of the principle of self-determination but held that this
character did not overturn its conclusion that it could not exercise
jurisdiction without the consent of Indonesia; the character of the
norm and the rule of consent to jurisdiction were separate things.118

114 115
Ibid., 238. Ibid.
116
This description is followed by the explanation that it only applies ‘when the decision as
between the parties cannot be reached without the Court examining the legality of the
conduct of another State not party to the proceedings or the legal position of that State’:
Rosenne (2006), 2 Law and Practice, 546–7.
117
Armed Activities (2002 Application) (DRC v. Rwanda), Jurisdiction and Admissibility, ICJ
Rep. 2006 p. 6, 90 (Judge ad hoc Dugard).
118
East Timor, ICJ Rep. 1995 p. 90, 102.
664 the implementation of responsibility

But in another context, in Germany v. Italy, the Court reaffirmed that

distinction in no uncertain terms.119

20.5.1.3 Further questions of scope

The question remains whether the Monetary Gold principle is actually
necessary for the protection of absent states from adverse findings of
responsibility. In its judgment on jurisdiction and admissibility in Nicar-
agua v. US, one of the reasons behind the Court’s rejection of the US
indispensable third parties argument was that ‘other States which con-
sider that they may be affected are free to institute separate proceedings,
or to employ the procedure of intervention’.120 The Court acknowledged
that El Salvador’s attempt to do just that had failed, but said that it could
try again at the merits phase, concluding that there was therefore ‘no
question of these States being defenceless against any consequences that
may arise out of adjudication by the Court’.121 Even if a third state
chooses not to intervene, there is the argument that it is protected by
the provisions of Article 59 of the Statute.122
It is generally agreed, however, that the terms of Article 59 of the
Statute alone may be insufficient to ensure protection in all cases.123
The Court has observed:
[T]he absence of [a request to intervene under Art 62] in no way precludes the
Court from adjudicating upon the claims submitted to it, provided that the legal
interests of the third State which may possibly be affected do not form the very
subject-matter of the decision that is applied for. Where the Court is so entitled
to act, the interests of the third State which is not a party to the case are
protected by Article 59 of the Statute of the Court . . .124

This passage suggests that Article 59’s protective function is residual

in character, applicable in cases where the Court has decided that the
absent party’s interests fall short of forming the ‘very subject-matter’ of
the decision, and the absent state does not intervene. But in cases where
119
See Jurisdictional Immunities, ICJ, 3 February 2012, §§81–97, on the relationship between
serious violations of peremptory norms and the rules on immunity from jurisdiction.
120
Nicaragua, Jurisdiction and Admissibility, ICJ Rep. 1984 p. 392, 431, 425–6.
121
Ibid., 425.
122
Ibid., 431: ‘Where however claims of a legal nature are made by an Applicant against a
Respondent in proceedings before the Court, and made the subject of submissions, the
Court has in principle merely to decide upon those submissions, with binding force for
the parties only, and no other State, in accordance with Article 59 of the Statute.’
123
See e.g. Damrosch (1987), 390; Rosenne (2006), 2 Law and Practice, 1585–98, 1605;
Bernhardt (2006), 1247–51.
124
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 261.
 invocation in cases involving multiple parties 665

the Court’s binding decision would require one of the parties to the case
to renege on its obligations under a bilateral treaty with the absent state,
for example, or to stop providing support for collective self-defence in
circumstances where the absent state was reliant on it,125 it must be
acknowledged that the protection of Article 59 for absent states is some-
times ‘notional rather than real’.126
Ultimately, cases raising Monetary Gold issues turn on the question of
consent to jurisdiction, rather than on questions about the binding
character of the Court’s decisions.127 Further, it is not just third states
themselves that might be affected by a decision made in their absence.
There will almost inevitably be an impact on those proceedings for the
parties to the case; in Continental Shelf (Libya/Malta) Italy’s interest as a
third state significantly limited the scope of the Court’s decision on the
merits of the dispute between the two parties, even though Italy’s
request for permission to intervene had been denied.128 For a claimant,
there may be difficulties where the successful invocation of the respond-
ent’s responsibility requires proof of the wrongful conduct of another
responsible state which is absent from proceedings;129 or, conversely, for
a respondent there may be disproportionate adverse consequences when
other participants in the wrongful act are not present.130

20.5.1.4 Conclusion
The Monetary Gold principle emphasizes that jurisdiction should only be
declined where the third state’s position is really central to the dispute,
such that a judgment on the key issues in the case would amount to
subjecting the absent state to the Court’s jurisdiction without its con-
sent. In the majority of cases this will not be so. The Court is not
prevented from exercising jurisdiction where a claim might affect or
have consequences for absent third states. According to Rosenne, the test
is whether the third state is ‘directly impugned in the final submission of

125
See Judge Schwebel’s description of the result for El Salvador of the Court’s judgment
on the merits in Nicaragua: Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 333 (Judge
Schwebel, diss.).
126
Ibid., 342 (Judge Schwebel, diss.), referring to the lack of protection for the absent
parties in that case (United Kingdom and New Zealand).
127 128
Bernhardt (2006), 1250. Continental Shelf (Libya/Malta), ICJ Rep. 1985 p. 13.
129
See Aust (2011), 296–311.
130
Wellens (2010), 24: ‘The successful invocation of the Monetary Gold rule undoubtedly has
a negative impact on the effective implementation of the alleged solidarity between
plural responsible states.’
666 the implementation of responsibility

one or other of the parties, not whether the actions of that third State
are discussed in the pleadings’.131

20.5.2 Possible exceptions

Despite the paramountcy of the consent principle, there may be excep-
tions to the operation of the Monetary Gold rule; three possible exceptions
should be mentioned.

20.5.2.1 Defunct states

Under the Monetary Gold principle the Court will not exercise jurisdiction
conferred by states A and B if the dispute between them requires it to
determine the legal position of absent state C without its consent. But
what if state C is defunct? In such circumstances the right of the parties
before the Court to have their dispute determined should prevail over
any consideration of the defunct state’s interests. If state C no longer
exists as an entity possessing the sovereignty which underpins the Mon-
etary Gold principle, precedence must instead be given to the interests of
the parties to have their dispute resolved by the Court.
The point can be illustrated more clearly by reference to the Gabčı́kovo-
Nagymaros case.132 An original forum prorogatum claim was filed by Hun-
gary against Czechoslovakia in 1992, alleging violations of a bilateral
treaty for the construction and operation of a series of locks on the
Danube.133 On 1 January 1993 Czechoslovakia separated into the two
independent states of Slovakia and the Czech Republic. Slovakia and
Hungary subsequently presented the Court with a special agreement
under which they had agreed that Slovakia was to be the sole successor
state of Czechoslovakia in respect of rights and obligations relating to the
project, and Hungary’s original application lapsed. So this was succes-
sion to exclusive responsibility by agreement, and there was no Monetary
Gold issue. But even if there had been no agreement that Slovakia would
succeed to Czechoslovakia’s rights and obligations under the treaty, and
even if Hungary’s allegations of internationally wrongful acts against
Czechoslovakia was considered the very subject matter of the dispute,
there seems no question that the Court would have applied the Monetary
Gold principle to protect the legal interests of a state no longer in
131
Rosenne (2006), 3 Law and Practice, 1581.
132
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7. See Mikulka (2010),
295–6.
133
Treaty concerning the Construction and Operation of the Gabčíkovo-Nagymaros Series
of Locks, 16 September 1977, 1109 UNTS 211.
 invocation in cases involving multiple parties 667

existence. On the other hand, if a bilateral dispute between Hungary and

the Czech Republic had required the Court to determine whether or not
Slovakia was the sole successor state to Czechoslovakia in respect of
some particular matter, the Court might well have decided that it was
prevented from acting by the Monetary Gold principle.

20.5.2.2 Criminal prosecution

Although there is no scope for states themselves to be subject to criminal
prosecution under international law, the development of individual
criminal responsibility under international law means that state agents
and officials may be prosecuted in international and foreign tribunals for
criminal acts committed in the course of their official functions.134 In
fact some crimes specifically require as an element of the crime itself
that the perpetrator was acting in his or her official capacity – for
example torture, as defined in the 1984 Convention against Torture,135
and the crime of aggression, which is squarely based on the definition of
an act of aggression by a state.136 As a result, individual criminal respon-
sibility on the part of state officials may be closely linked to the state’s
concurrent responsibility for an internationally wrongful act.
Article 25(4) of the Statute of the International Criminal Court (ICC)
provides that ‘[n]o provision in this Statute relating to individual criminal
responsibility shall affect the responsibility of States under international
law’.137 This provision, derived from the ILC’s 1996 Draft Code of
Crimes,138 is the counterpart of ARSIWA Article 58, which provides: ‘These
articles are without prejudice to any question of the individual responsi-
bility under international law of any person acting on behalf of a State.’139

134
See e.g. Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3,
Art. 27 (‘Irrelevance of official capacity’).
135
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 10 December 1984, 1465 UNTS 85, Art. 1(1).
136
ICC Statute, Art. 8bis(1), inserted pursuant to RC/Res. 6 adopted at the Kampala Review
Conference on 11 June 2010, defines the crime of aggression as ‘the planning,
preparation, initiation or execution, by a person in a position effectively to exercise
control over or to direct the political or military action of a State, of an act of aggression
which, by its character, gravity and scale, constitutes a manifest violation of the Charter
of the United Nations’. Art. 8bis(2) relies on GA Res. 3314 (XXIX), 14 December 1974 for
the definition of an act of aggression.
137
ICC Statute, Art. 25(4). See Schabas, The International Criminal Court: A Commentary on the
Rome Statute (2010), 440–1.
138
Draft Code of Crimes against the Peace and Security of Mankind, ILC Ybk 1996/II(2), 23
(Art. 4 and commentary).
139
See ARSIWA Commentary, Art. 58, §3.
668 the implementation of responsibility

The intention was to make it clear that neither can hide behind the
responsibility of the other: official capacity does not allow an individual
to escape responsibility, and the prosecution or punishment of an indi-
vidual does not exonerate the state from any responsibility of its own.140
As the International Court has observed, this ‘duality of responsibility
continues to be a constant feature of international law’.141
As a matter of law, then, individual criminal responsibility and state
responsibility are separate, and in principle neither affects the other. But
as a matter of fact, it is likely that the conviction of a high-ranking state
official for an international crime would create a strong presumption of
concurrent state responsibility for the wrongful act.142 If the ICC pros-
ecuted a state official for international crimes, the position of his or her
state of nationality might be central to the proceedings.
An exception to the Monetary Gold principle must be warranted in such
circumstances. In proceedings before the ICC, Monetary Gold simply does
not arise. The ICC has jurisdiction over natural persons, not states,143
and on the terms of the Statute its findings (however influential) would
not determine any issue of state responsibility.144 There would be no scope
for an argument that the prosecution must not proceed in order to
protect the interests of the absent state.

20.5.2.3 Waiver
Another possible exception to the Monetary Gold principle might arise in
circumstances of waiver: the voluntary renunciation of a right or
claim.145 Article 45(a) of ARSIWA provides that the responsibility of a
state may not be invoked if the injured state has validly waived the
claim, which is taken as meaning the breach itself, or its consequences
in terms of responsibility.146 This provision is analogous to VCLT Article
45, which deals with loss of the right to invoke a defect in a treaty.147 The
question whether the waiver is ‘valid’ is left to the primary rules in
question, similar to the situation in respect of consent as a circumstance
precluding the wrongfulness of an act.148
140
Ibid.
141
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p. 43, 116.
142 143 144
Aust (2011), 315–16. ICC Statute, Art. 25(1). Ibid., Art. 25(4).
145
Tams (2010), 1036.
146
ARSIWA Commentary, Art. 45. The same goes for states other than injured states
invoking responsibility under Art. 48: see Art. 48(3).
147
See Crawford, Third Report, 68.
148
See ARSIWA Commentary, Art. 45, §4; Art. 20, §§4–7.
 invocation in cases involving multiple parties 669

Although ARSIWA Article 45 does not specifically address waiver in

situations involving a plurality of states, the commentary to the equiva-
lent provision in the Draft Articles on the Responsibility of International
Organizations expressly states:
When there is a plurality of injured States or injured international organizations,
the waiver by one or more State or international organization does not affect
the entitlement of the other injured States or organizations to invoke
responsibility.149

This was intended to clarify that a state or an international organiza-

tion may only waive a claim on its own behalf, without prejudice to the
rights of another injured state or international organization, in the light
of the provision on a plurality of injured states or international organiza-
tions.150 The same principle must apply to a plurality of states.

20.6 Other procedural incidents

20.6.1 Joinder of claims
Where two or more claims are filed in respect of the same issue, whether
between the same parties or different parties, the Court has the power
under Article 48 of the Statute and Article 47 of the Rules of Court to join
them.151 In this manner the Court may convert multiple proceedings
dealing with the same or related facts into a single case leading to a
single judgment, if it would be more convenient and efficient than
dealing with them separately. Joinder is not automatic, however, just
because the subject matter is similar or even identical in multiple pro-
ceedings.152 Although the Court has the authority to join claims without
hearing the parties, so far it has only made orders for joinder when the
parties have consented.153 In some cases the parties may prefer for each
of the related claims to be kept separate, leading to separate judgments,
although the Court might still choose to group the cases and hear them

149
See DARIO Commentary, Art. 46, §4.
150
Sixtieth Session of the ILC, Responsibility of International Organizations, Statement of
the Chairman of the Drafting Committee Mr Pedro Comissário Alfonso, 4 June 2008, 9,
available at untreaty.un.org/ilc/sessions/60/2008_dc_chairman_rio.4june2008.pdf.
151
Chinkin (1993), 213; Torres Bernárdez, ‘Article 48’, in Zimmermann, Tomuschat and
Oellers-Frahm (2006) 1081, esp. 1089; Rosenne (2006), 3 Law and Practice, 1209–19.
152
Rosenne (2006), 1214.
153
Ibid., 1209; Kooijmans, ‘Article 31’, in Zimmermann, Tomuschat and Oellers-Frahm
(2006) 495, 503.
670 the implementation of responsibility

together.154 This was the case in the Fisheries Jurisdiction cases,155 for
example, and the Legality of Use of Force cases against ten NATO member
states.156
Where different claimants are seen as being ‘in the same interest’
before the Court the joinder of their cases will have certain procedural
consequences.157 Thus the Court made an order for joinder in the South
West Africa cases brought by Ethiopia and Liberia against South Africa,
holding that the two claimants were ‘to be reckoned as one party only’
for the purposes of electing an ad hoc judge in accordance with the
Statute.158 Cases grouped together to be heard in common but with
separate judgments will not be susceptible to those same implications.
The scope of Article 48 is broad enough to encompass any procedural
eventuality ranging from formal joinder to the grouping of certain
aspects of the hearing for convenience.159
Something the Court cannot do, however, is compel an absent state
with an interest in the proceedings before it to join the case, whether
as a party or by way of non-party intervention.160 This lack of any
proprio motu power of joinder, frequently available to national courts,
is a consequence of the consensual basis of jurisdiction before the
International Court.161 It is common for international judicial tribu-
nals to lack such procedures,162 but it can lead to problems for the
Court and for the parties, particularly in situations where there are

154
Rosenne argues that this type of consolidation should be distinguished from joinder
proper, which refers to those instances in which an initial multiplicity of proceedings
culminates in a single judgment; see Rosenne (2006), 3 Law and Practice, 1218 n. 27.
155
Fisheries Jurisdiction (UK v. Iceland), ICJ Rep. 1975 p. 3; Fisheries Jurisdiction (Federal Republic of
Germany v. Iceland), ICJ Rep. 1975 p. 175. See Rosenne (2006), 3 Law and Practice, 1211–12.
156
For a discussion of the case law see Rosenne, 3 (2006), 1209–19.
157
Statute of the International Court of Justice, 26 June 1945, 15 UNCIO 355, Art. 31(5)
provides: ‘Should there be several parties in the same interest, they shall, for the
purpose of the preceding provisions, be reckoned as one party only. Any doubt upon
this point shall be settled by the decision of the Court.’ See Kooijmans (2006), 501–3.
158
South West Africa, Order, 20 May 1961, ICJ Rep. 1961 p. 13.
159
Rosenne (2006), 3 Law and Practice, 1218.
160
See e.g. Libya/Malta, Application to Intervene by Italy, ICJ Rep. 1984 p. 3, 25; Nicaragua,
Jurisdiction and Admissibility, ICJ Rep. 1984 p. 392, 431; El Salvador/Honduras,
Application to Intervene by Nicaragua, ICJ Rep. 1990 p. 92, 134–5; Phosphate Lands in
Nauru, ICJ Rep. 1992 p. 240, 260. See further Chinkin (2006) 1331, 1337; Rosenne (2006),
2 Law and Practice, 551.
161
Phosphate Lands in Nauru, ICJ Rep. 1992 p. 240, 260.
162
One exception was the Central American Court of Justice in operation between 1907
and 1917, which had compulsory jurisdiction over all disputes submitted to it by
Guatemala, Honduras, Nicaragua, El Salvador or Costa Rica: Noyes and Smith (1988),
235–6.
 invocation in cases involving multiple parties 671

multiple responsible states, and not all of them are before the Court,163
or where the participation of an absent state would have assisted
the Court in ascertaining the facts.164 The Court has made reference
to its inability to join absent parties on numerous occasions; short
of a radical change to the fundamental requirement of consent
for jurisdiction, there is no chance that this lack of competence will
be remedied.

20.6.2 The composition of the bench

Cases involving multiple parties can pose difficulties when it comes to
the composition of the bench. Article 31 provides a procedure enabling
parties to ensure that there is a judge of their own nationality on the
bench, through the appointment of ad hoc judges.165 Under Article
31(5), however, where there are ‘several parties in the same interest’,
they are to be ‘reckoned as one party only’ for the purposes of choosing
an ad hoc judge.166 The statute provides no guidance as to how the
Court is to determine that the parties are ‘in the same interest’, and
the Court’s practice shows a mixed approach. On some occasions,
the decision has rested on the near identity of the submissions of the
parties in question and has been closely connected with a decision on
joinder,167 but on others the parties have been found not to be in the
same interest despite the similarity of their conclusions, and the deci-
sion seems instead to have been the result of a more procedural
consideration, in that the cases were commenced as separate cases in
the list.168
Where closely related cases are grouped and heard in common but
not joined, with the parties not held to be in the same interest, the
Court may end up sitting in a varying composition in a number of very
similar or even nearly identical cases. Such a situation arose in the

163
Aust (2011), 296–7.
164
For example Judge Fitzmaurice argued that the intervention of the Canadian
government under Art. 62 should have been sought ‘in order that its views might be
made known’ in Barcelona Traction, Light & Power Company, Limited, ICJ Rep. 1970 p. 3, 80
(Judge Fitzmaurice).
165
See generally Lauterpacht (1991), 77–82; Gill (1989), 9ff; Rosenne, ‘International Court
of Justice (ICJ)’, (2006) MPEPIL, §§35–40; Kooijmans (2006), 496; Rosenne (2006), 3 Law
and Practice, 1079–1109.
166
Ibid., 1093–6; Kooijmans (2006), 501–3.
167
E.g. South West Africa, Order, 20 May 1961, ICJ Rep. 1961 p. 13; North Sea Continental Shelf,
Order, 26 April 1968, ICJ Rep. 1968 p. 9.
168
Kooijmans (2006), 502–3.
672 the implementation of responsibility

Lockerbie cases, where an inequality against the applicant, Libya, was

introduced by the fact that a UK judge ad hoc was permitted to sit on
the case against the United Kingdom, but not on the very similar one
against the United States, while the regular American member of the
Court sat on both benches.169 The problem was even more pronounced
in the ten separate Legality of the Use of Force cases arising out of the
Kosovo crisis. The proceedings against the NATO respondents were
identical, and the conclusions of the respondents virtually identical,
but the Court upheld the appointment of different ad hoc judges by
four of the respondents at the provisional measures stage, with five
other respondents already having a judge of their nationality on the
bench. This led to the ‘curious spectacle of repeated adjournments of
the court’s public session to enable the court to reconvene in a differ-
ent composition, according to which respondent was pleading at any
given moment’.170 When it came to the next phase of proceedings, the
Court decided that ad hoc judges would not sit for the preliminary
objections phase, and it maintained the same composition throughout,
without prejudice to whether or not judges ad hoc might sit in subse-
quent phases.171 Reference was made to Article 31(5), although the
Court did not expressly hold the respondents to be parties in the
same interest, it had not joined the cases and the proceedings
remained separate.172
There is no provision in the Statute or the Rules for an intervening
third state to choose an ad hoc judge.173 Malta expressed an intention
to do so when it applied to intervene in the Continental Shelf (Tunisia/
Libya) case, but the Court found that Malta had to wait until its status
in respect of intervention was decided, and as that application was
unsuccessful, the question became moot.174 It is safe to speculate that
the Court would make a distinction between intervention as a party
and as a non-party when considering a request for the appointment of
an ad hoc judge by an intervening state, and that a non-party would
have no right to appoint a judge ad hoc, but as yet there are no
authorities on this point.

169 170
Ibid., 502. Rosenne (2006), ‘International Court of Justice’, §40.
171
See e.g. Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections,
ICJ Rep. 2004 p. 279, 287. As it happened, the respondents’ preliminary objections were
upheld and the cases were dismissed for lack of jurisdiction.
172
Kooijmans (2006), 503.
173
Ibid., 504–5; Chinkin (2006) 1390; Rosenne (2006), 3 Law and Practice, 1099–1106.
174
Tunisia/Libya, Application to Intervene by Malta, ICJ Rep. 1981, p. 3, 6–7.
 invocation in cases involving multiple parties 673

20.6.3 The rule against double recovery

It is well established that an injured party cannot recover more than
its assessed damage or injury through an award of compensatory dam-
ages.175 This logically corresponds to the point that the function of
compensation is to address the actual losses incurred as a result of the
internationally wrongful act.176 The risk of double recovery is increased
in cases involving multiple parties – whether because a claimant brings a
claim against multiple responsible states simultaneously, possibly in
different forums, or because multiple claimants bring claims against
one responsible state in connection with the same wrongful act. The
issue of establishing causation may also be difficult when it comes to
allocating a particular injury to a particular act, especially when there
are concurrent causes.177 Nonetheless, the same principle applies that an
injured party may collect from any one or more of the responsible states
‘only the full amount of his damage’.178
For most purposes the principle against double recovery is subsumed
in the general principle of full (equitable) reparation, which generally
implies that reparation should be no more than necessary to compensate
the injured state for the loss, and be not inequitable in the circum-
stances.179 The obligation of reparation only extends as far as the injury
caused by the wrongful act; it does not cover all the consequences
flowing from that act, and a respondent state should not be required to
provide reparation in excess of its responsibility.180 It is clear that the
principle against double recovery applies in a situation involving a plur-
ality of injured states: no single state could recover compensation for
more than its own injury just because that injury occurred in the context
of a greater harm. In a situation where the same claimant may be
entitled to reparation as against several responsible states, however,
the rule might need to be made explicit, and it may operate as a

175
This principle is enshrined in ARSIWA, Art. 47(2)(a). See further, e.g., Factory at Chorzów,
(1928) PCIJ Ser. A No. 17, 49, 59, Case concerning Gold Looted from the Netherlands, (1963) 44
ILR 448, 471–2; Crawford, Third Report, 67–8; ARSIWA Commentary, Art. 47, §9.
176
ARSIWA Commentary, Art. 36, §4.
177
See e.g. ARSIWA Commentary, Art. 31, §10; Aust (2011), 278–84.
178
To borrow a phrase from the US pleadings in Aerial Incident of 27 July 1955 (US v.
Bulgaria), Memorial of the United States, 2 December 1958, 229.
179
Crawford, Third Report, 68. The principle that the responsible state is under an
obligation to make full reparation for the injury caused by its internationally wrongful
act is one of the core legal consequences of such an act, expressed in ARSIWA, Art. 31;
see further ARSIWA Commentary, Art. 31; Barker (2010). See further Chapter 15.
180
See ARSIWA, Art. 31(2); ARSIWA Commentary, Art. 31, §9.
674 the implementation of responsibility

limitation on the invocation of responsibility.181 Claimant states might

refrain from invoking the responsibility of more than one responsible
state if they perceive that they will receive adequate reparation through
pursuit of a claim against one state only. This is without prejudice to any
question of contribution or division of reparation as between multiple
responsible states.182
It appears that claimant states themselves are generally conscious of
the importance of avoiding double recovery, and will take preventive
steps accordingly. For example, in the Case Concerning Gold Looted from the
Netherlands before the Italy–Netherlands Conciliation Commission, the
Netherlands sought restitution or full compensation from Italy for gold
that was wrongfully removed from the Netherlands by Germany during
the occupation and subsequently transferred to Italy. The Netherlands
acknowledged that it could not simultaneously press its claim to com-
pensation from Germany through its participation pro rata in the pool of
gold administered by the Tripartite Commission:
Indeed, such a double claim would involve an unjust enrichment prohibited by
the general principles of law recognised by civilised nations and forming an
integral part of international law . . . In these circumstances, the Netherlands
Government has declared itself ‘ready to withdraw its claim before the Tripartite
Commission to the extent that it will be compensated by the Italian
Government’ . . . The Netherlands Government thus gives preference to compen-
sation by the Italian Government.183

The rule against double recovery may be equally relevant in situations

involving multiple claimants and a single respondent. Thus in the claims
by the United Kingdom, the United States and Israel against Bulgaria
following the destruction of an Israeli aircraft, the separate claimants
took steps to co-operate so as to ensure that Bulgaria was not exposed to
excessive claims for reparation.184
On the whole, the principle preventing double recovery is firmly
entrenched in the fabric of international claims involving multiple
parties, and it regulates conduct on both sides.

181
See Crawford, Third Report, 67–8.
182
ARSIWA, Art. 47(2)(b). See further ARSIWA Commentary, Art. 47, §10; Orakhelashvili
(2010).
183
(1963) 44 ILR 448, 471–2.
184
See Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Memorial of Israel, 2 June 1958, 106;
ARSIWA Commentary, Art. 46, §3 n. 744.
21 Implementation of responsibility
by extrajudicial process

21.1 Overview
Besides implementing state responsibility through formal claims – or
through the processes of negotiation and settlement that may avoid the
need for such claims – states may also have recourse to certain extra-
judicial self-help measures under international law, whether to induce
compliance with an obligation or, sometimes, to express disapproval of
another state’s conduct. Such unilateral acts of self-help may be based on
the distinct concepts of retorsion, the exception of non-performance (the
exceptio inadempleti contractus) or countermeasures. The most controver-
sial of these is countermeasures, whether by an injured state acting
alone or by a group of states acting collectively.
There are important conceptual differences between the different cat-
egories of self-help measures. Retorsion is an ‘unfriendly’ but not unlawful
act – severing diplomatic relations, for example. Countermeasures, by
contrast, may be defined as an act of non-compliance by a state with an
international obligation owed towards another state in response to a prior
breach of international law by that other state.1 But it may be difficult to
draw a clear-cut distinction between these various self-help measures in
practice. In Application of the Interim Accord of 13 September 1995 (former
Yugoslav Republic of Macedonia v. Greece), for example, Greece (unsuccess-
fully) pleaded all three categories of the exceptio, suspension of benefits
and countermeasures as alternative defences to the claim that it had
breached its obligation to Macedonia under the Interim Accord of 1995.2

1
For more detailed analysis of the definition see Alland, in Crawford, Pellet and Olleson
(2010) 1127.
2
Application of the Interim Accord of 13 September 1995 (former Yugoslav Republic of Macedonia v.
Greece), Judgment, 5 December 2011.

675
676 the implementation of responsibility

The difficulty of characterizing countermeasures as such is compounded

by the fact that clear statements explaining which unilateral self-help
measure a state actually relies on in a particular instance are rarely
advanced at the time.
In particular, the distinction between acts of retorsion and counter-
measures, especially in the context of collective action, may sometimes
be difficult to draw in practice.3 Countermeasures do not include
policies of collective non-recognition, whether such non-recognition is
obligatory4 or optional, nor do they, for example, include unilateral
trade restrictions based on the national security exception under Article
XX of the GATT.5 Similarly, where a state responds to a material breach
of a treaty it will not always be immediately apparent whether it does
so as an essentially protective measure in order to restore a certain
contractual balance (by relying on the exceptio inadimpleti contractus or
the termination or suspension of treaty obligations under Article 60
VCLT or other treaty-law doctrines) or in order to enforce international
law by relying on the notion of countermeasures.6
While these practical difficulties should not be exaggerated, they
cannot be ignored.7 With that in mind, this chapter examines each of
the different categories in turn, before addressing the separate question
of disputes concerning responsibility before the Security Council and
other international forums (‘institutional measures’).

21.2 Unilateral self-help measures

21.2.1 Retorsion
The most common unilateral self-help measure in international practice
is retorsion, that is, retaliation against another state in a manner that
does not interfere with the target state’s rights under international law.8
The ILC categorizes retorsion as ‘“unfriendly” conduct which is not
inconsistent with any international obligation of the state engaging in
it even though it may be a response to an internationally wrongful act’.9

3
Crawford, Third Report, 102.
4
As e.g. in the situation considered by the International Court in Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), ICJ Rep. 1971 p. 16.
5
Marrakesh Agreement Establishing the World Trade Organization, Annex 1A: General
Agreement on Tariffs and Trade, 15 April 1994, 1867 UNTS 187.
6 7
Cf. Tams (2005), 19–22. For a detailed study see Dawidowicz, (2006) 77 BYIL 333.
8 9
See Giegerich, ‘Retorsion’ (2011) MPEPIL. ARSIWA Commentary, Pt III, Ch. II, §3.
 implementation by extrajudicial process 677

That said, there is no requirement that the target state should have
committed an internationally wrongful act first; it may itself have
simply acted in an unwelcome or unfriendly way.10 As the ILC explained,
acts of retorsion may include the prohibition of or limitations on normal
diplomatic relations or other contacts, embargoes of various kinds, with-
drawal of voluntary aid programmes and so on.11 Regardless of what the
motive behind acts of retorsion may be, if they do not actually breach the
international obligations of the state or states taking them vis-à-vis
the target state, they are intrinsically lawful and fall outside the scope
of the ARSIWA.12 They can be described as ‘socio-political acts with legal
relevance’.13
While there is no universal agreement, retorsion is widely regarded
as a freedom (as opposed to a right to which certain limitations may
apply14) and is accordingly largely unregulated by international law.15
The Permanent Court’s well-known dictum in the Lotus case – referring
to the freedom of action of states in the absence of any international
legal obligations to the contrary – is often said to support this pos-
ition.16 Measures of retorsion may sometimes have a punitive or
retributive element, whereas countermeasures must be directed at
inducing the target state to comply with its international obligations;
further, measures of retorsion are not required to be temporary or
reversible. In the usual case, however, this would be politically sens-
ible.17 In some cases a state will prefer to apply retorsionary measures
even if it has a right to take countermeasures, whether for political

10
Giegerich, ‘Retorsion’, (2011) MPEPIL, §1.
11
ARSIWA Commentary, Pt III, Ch. II, §3; for further examples see Giegerich (2011), §10.
12
ARSIWA Commentary, Pt III, Ch. II, §3. See further, e.g., Crawford, Third Report, 102;
ILC Ybk 1992/II(2), 23. The modern definition of retorsion coincides with its historical
counterpart, see e.g. Vattel, Le Droit des gens (1758), Bk II, Ch. XVIII, §341 (ed. Kapossy and
Whatmore 2008, 459–60); Rivier, 2 Principes du droit des gens (2nd edn, 1899), 189; IDI Res.
1934/III (Paris), Art. 2(1).
13
Giegerich (2011), §§12, 29, citing Noortmann, Enforcing International Law: From Self-Help to
Self-Contained Regimes (2005), 43.
14
For the view that acts of retorsion may be limited by the principle of proportionality and
the doctrine of abuse of rights, see e.g. Cassese (2005), 310.
15
The discretion to apply measures of retorsion is not absolute, however; it may be subject
to specific prohibitions or procedural and substantive limits. See discussion in Giegerich
(2011), §§14–27.
16
SS Lotus, (1927) PCIJ Ser. A No. 10, 18–19.
17
See UN Charter, Arts. 2(3), 33–8; Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States in accordance with the
Charter of the United Nations, GA Res. 2625(XXV), 24 October 1970, Principle 2. See
further Giegerich (2011), §§8, 22.
678 the implementation of responsibility

reasons or perhaps because countermeasures would be disproportionate

to the wrong committed by the target state.18

21.2.2 The exception of non-performance (exceptio

inadimpleti contractus)19
The doctrine commonly referred to as the exceptio inadimpleti contractus or
the exception of non-performance is based on the principle that perform-
ance of an obligation may be withheld if the other party has itself failed
to perform. It has often been conflated with the concept of countermeas-
ures,20 but unlike countermeasures, the exceptio is limited to the suspen-
sion of performance of the same or a closely related obligation;21 it flows
from the principle of reciprocity.22
The status of the exceptio has been and remains unclear. While it has
been recognized to some extent as an operative principle in international
jurisprudence,23 there is an argument that it has slipped through the gap
between the primary rules on the law of treaties, and the secondary rules
on state responsibility.24 Uncertainty has prevailed over whether the
exceptio is a general principle applicable to treaty and non-treaty
18
Ibid., §7. See also Alland (2010), 1131–2.
19
For a discussion of the principle with further references to the case law, see Crawford,
Second Report, 78–9; Crawford, Third Report, 95–6. See also Greig, (1994) 34 Va JIL 295;
Crawford and Olleson, (2001) 21 AYIL 55.
20
This view was evident in Special Rapporteur Riphagen’s Fifth Report, in which he
proposed to deal with the exceptio in a separate provision, dealing with so-called
‘reciprocal countermeasures’, and allowing for the suspension of performance of
‘obligations [which] correspond to, or are directly connected with, the obligation
breached’. The ILC decided not to consider reciprocal countermeasures as a distinct
category of countermeasures, on the basis that they ‘did not deserve special treatment’.
See Riphagen, Fourth Report, 18; Fifth Report, 3 (Draft Art. 8); Sixth Report, 10–11
(commentary to Draft Art. 8). For the ILC’s reasons for rejecting a special category of so-
called ‘reciprocal countermeasures’ see ILC Ybk 1992/II(2), 23; ARSIWA Commentary, Pt
III, Ch. II, §5. See also Crawford, Third Report, 87.
21
Crawford, Second Report, 87; ARSIWA Commentary, Pt III, Ch. II, §5.
22
Interim Accord, ICJ, 5 December 2011, Separate Opinion of Judge Simma, §10. Generally
see Simma, ‘Reciprocity’, (2008) MPEPIL.
23
E.g. Diversion of Water from the Meuse (Netherlands v. Belgium), (1937) PCIJ Ser. A/B No. 70, 4,
50 (Judge Anzilotti, diss.); 75–8 (Judge Hudson); Namibia, ICJ Rep. 1971 p. 16, 213–14
(Judge de Castro); Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), ICJ
Rep. 1972 p. 46, 129 (Judge de Castro); Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. US), ICJ Rep. 1986 p. 14, 380 (Judge Schwebel, diss.). In Interim
Accord, ICJ, 5 December 2011, the Court declined to consider whether or not the principle
forms part of current international law (§161); cf. the separate opinion of Judge Simma,
the declaration of Judge Bennouna and the dissenting opinion of Judge ad hoc
Roucounas for different views on the matter.
24
Crawford and Olleson (2001), 56.
 implementation by extrajudicial process 679

obligations alike, or whether it can only justify non-performance of

specific types of obligation.25 The Vienna Convention on the Law of
Treaties (VCLT) leaves most issues of performance to be dealt with under
the law of state responsibility (the exception is Article 26, pacta sunt
servanda).26 However, Article 60 covers permissible responses to material
breaches of treaty obligations; questions then arise over the extent to
which the exceptio may justify non-performance in response to non-
material breaches that fall outside the Article 60 framework.27
Riphagen, for example, argued that in such circumstances the exceptio
could apply if the responding state breached or suspended performance
of a reciprocal obligation,28 but this was not accepted by the ILC. In view
of its exclusion from both codification projects of the ILC on the law of
treaties and on the law of state responsibility, the status of the exceptio
must appear questionable.
In cases where the exceptio applies, the reason why state A is entitled
not to perform is simply that, in the absence of state B’s performance of
the related obligation, the time for state A’s performance has not yet
come. It is true that state A may withhold performance in order to
induce state B to perform. But that is not the point of the exceptio, as it
is of countermeasures. State A’s motive is irrelevant; it may simply have
no interest in performance in the absence of state B. Moreover, unlike
with countermeasures, there is no requirement of notice or of any
attempt to settle the dispute by diplomatic or other means as a condition
of continued application of the exceptio. The rationale of the principle is
simply that, following an agreement, for example, concerning the
exchange of prisoners of war or for the joint funding of some project,
state A is not obliged to release its prisoners of war or to make its
contribution unless state B is in turn ready to perform its part of
the bargain. Thus the exceptio is to be seen either as a circumstance
precluding wrongfulness in respect of a certain class of (synallagmatic)
obligations, or as the consequence of an implied term in certain
agreements.

25
For the view that it is a general principle, see Fitzmaurice, Fourth Report on the Law of
Treaties, ILC Ybk 1959/II, 43–7; Interim Accord, ICJ, 5 December 2011, Dissenting Opinion
of Judge Roucounas, §66. For the view that it has no independent existence outside
VCLT, Art. 60, see ibid., Separate Opinion of Judge Simma.
26
Crawford and Olleson (2001), 59.
27
On the relationship between Art. 60 and the exceptio see e.g. Simma and Tams, in Corten
and Klein (2011) 1351, 1353–7; Forlati, (2012) 25 LJIL 759.
28
See the discussion in Crawford and Olleson (2001), 60–1.
680 the implementation of responsibility

A lack of clarity over the precise formulation of the exceptio has

contributed to the confusion.29 As the ILC’s debate on second reading
made clear, at least two different forms of the exceptio may be discerned,
with different sources supporting one version or the other.30 The
narrower form of the exception is not based on synallagmatic obligations
but on the idea that state A may not complain of the non-performance of
an obligation owed to it by state B where such performance has been
prevented by the prior wrongful act of state A. This narrow version of the
exceptio seems to overlap with the excuse of force majeure or impossibility
or (in cases not involving actual impossibility of performance) with the
general principle that a state ought not to be able to benefit from its own
wrongful act. As explained by the Permanent Court in Chorzów Factory,
this principle only applies where one state has, by its own unlawful act,
actually prevented the other from complying with its side of the bargain;
that is, from complying with the same or a related obligation.31 In other
words, the link is a direct causal link, and certainly not a question of one
breach provoking another by way of reprisal or retaliation.32
The narrow version of the exceptio thus effectively operates as a distinct
circumstance precluding wrongfulness capable of generating conse-
quences in the field of state responsibility.33 While the ILC did not
consider it appropriate to deal explicitly with the narrow version of the
exceptio in the ARSIWA (for reasons valid enough in that context),34 the
legitimacy of the principle under general international law is neverthe-
less indirectly reaffirmed by ARSIWA Article 56.35 Under general inter-
national law it is clear that this narrow principle cannot be assimilated
with the more flexible notion of countermeasures.
The broader version of the exceptio – which also finds some support in
recent international jurisprudence36 – is concerned with synallagmatic
or interdependent obligations, with each seen as effectively the
29
Ibid., 62–6.
30
See Crawford, Second Report, 81–2; Crawford, Third Report, 95–6; ILC Report 1999, UN
Doc. A/54/10, 79–80 (for a summary of the debate).
31
(1927) PCIJ Ser. A No. 9, 31.
32
See Crawford, Second Report, 87; Crawford and Olleson (2001), 62.
33
Crawford, Second Report, 78; Crawford, Third Report, 95–6. See also ARSIWA
Commentary, Pt I, Ch. V, §9.
34
On the debate in the ILC on Draft Article 30bis, see ILC Report (1999), UN Doc. A/54/10,
79–80; and on government views see UN Doc. A/CN.4/504, 16. See also Crawford, Third
Report, 95–6 (dropping proposed draft Art. 30bis); Chapter 9.
35
See ARSIWA Commentary, Art. 56, §2.
36
See e.g. Interim Accord, ICJ, 5 December 2011, Declaration of Judge Bennouna; Dissenting
Opinion of Judge ad hoc Roucounas.
 implementation by extrajudicial process 681

counterpart of the other: continued compliance of the obligation by one

state is conditioned on similar compliance by the other state. In such a
case there is no direct causal link between non-performance by state
A and non-performance by state B. It remains possible for state B to
comply, but to require it to do so would contradict the expectations
underlying the agreement: examples include ceasefire agreements,
agreements for exchange of prisoners or mutual destruction of weapons.
There is little doubt that in its broader form the exceptio should be
regarded as based on treaty interpretation, performance of the same or
related obligations being treated as conditional.37 Indeed, this was the
approach ultimately adopted by the ILC: the Commission viewed the
broader version of the principle as an aspect of treaty interpretation
and as such distinct from the law of state responsibility.38
The role of the exceptio in the context of treaty relations was examined
in depth by Judge Simma in his separate opinion in Interim Accord.39
In connection with the arguments advanced by Greece in that case, the
majority simply concluded that Greece had failed to establish that ‘the
conditions which it has itself asserted would be necessary for the appli-
cation of the exceptio’ were satisfied. It declined to determine whether
the exceptio forms part of international law.40 Judge Simma was critical of
the Court’s failure to clarify the point. Emphasizing the rationale of
reciprocity underlying the exceptio,41 he found that
[t]he functional synallagma attached to treaties embodying reciprocal obligations
finds its . . . expression entirely in the primary rules of the law of treaties.42
That is, there is no room for recognition of the exceptio outside the
exhaustive provisions on the consequences of breach in VCLT Article
60; Judge Simma pronounced the pre-VCLT exceptio dead.43 By contrast,
Judge ad hoc Roucounas expressed the view that the exceptio
is the corollary of reciprocity and synallagmatic agreements. It follows that
Article 60 of the Vienna Convention on the Law of Treaties is not the sole form
of expression of the exceptio. As a defence to the non-performance of an obliga-
tion, it is a general principle of law, as enshrined in Article 38, paragraph 1 (c), of
the Statute of the Court. Yet, as the Court found in the case concerning Military
and Paramilitary Activities in and against Nicaragua, general international law and
treaty law constantly overlap. Article 60 does not deprive the injured party of the
right to invoke the exceptio. In particular, it does not make provision for every

37
See e.g. introductory commentary to Pt I, Ch. V, §9, in ILC Report 2001, UN Doc. A/56/10,
72; Crawford, Third Report, 95–6 (with further references).
38 39
See ARSIWA Commentary, Pt I, Ch. V, §9. Interim Accord, 5 December 2011, ICJ.
40 41 42 43
Ibid., §161. Ibid., Judge Simma sep. op., §10. Ibid., §20. Ibid., §26.
682 the implementation of responsibility

scenario in which the injured party reacts to the non-performance by the

other contracting party of its obligations.44
The status of the exceptio thus remains uncertain. It has not established
an independent place as a rule or principle of international law. Regardless
of its status outside the VCLT, it is clear that it cannot be used to justify the
violation of human rights or humanitarian obligations.45 For present
purposes it will suffice to emphasize that neither version of the exceptio
should be conflated with the distinct category of countermeasures.

21.2.3 Suspension of obligations

Difficulty has sometimes arisen because of (perhaps understandable)
confusion between the taking of countermeasures otherwise in breach
of an international obligation, on the one hand, and the suspension of an
obligation, on the other. Commentators have stressed the significant
constraints on the suspension (and termination) of treaties under the
VCLT, and have asked how these can be seemingly evaded by reliance on
countermeasures. After analysing the relationship between Article 60
VCLT and the concept of countermeasures, and noting that international
practice clearly recognizes the parallel existence of both types of reac-
tion, Simma and Tams conclude:
Article 60 leaves the right of States to suspend treaty obligations by way of
countermeasures unaffected. While those reactions have to conform with
the conditions governing the law of countermeasures, they may also be taken
against immaterial breaches and need not follow the procedure set out in
Articles 65 to 68 – which of course allows parties to circumvent the Vienna
Convention regime.46
By implication, the taking of countermeasures involving non-
performance of treaty obligations is seen as equivalent to the suspension
of an obligation.47 The International Court seems to have given some
credence to this position in Gabčı́kovo-Nagymaros.48 But the use of the
44
Ibid., Dissenting Opinion of Judge Roucounas, §66.
45
See VCLT, Art. 60(5); this was reinforced by the ICTY trial chamber in Prosecutor v.
Kupreškic´, ICTY Case No. IT-95-16, 14 January 2000, §520.
46
Simma and Tams, in Corten and Klein (2011) 1351, 1376–7. See also ibid., 1354.
47
Crawford, Third Report, 86–7, 110–11. For an example of this apparent confusion see
Greig (1994) (VCLT, Art. 60 would be rendered a ‘dead letter’ if countermeasures were
permissible in response to non-material breaches). For useful discussion and further
references see Sicilianos, (1993) 4 EJIL 341.
48
Gabčı́kovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 p. 7, 39. The Court said that
‘[it] cannot accept Hungary’s argument to the effect that, in 1989, in suspending and
subsequently abandoning the works for which it was still responsible at Nagymaros and
 implementation by extrajudicial process 683

word ‘suspend’ in the passage cited above leads to confusion. There is an

important conceptual difference between the suspension of a treaty and
the refusal (whether or not justified) to comply with a treaty;49 in other
words, between the suspension of the obligation per se and the suspen-
sion for the time being of its performance.
In Gabčı́kovo-Nagymaros, the Court clearly proceeded on the basis that
non-performance of a treaty, adopted as a reaction to a prior breach of
that treaty, could be justified as a countermeasure, quite apart from
the conditions for suspension of a treaty under the VCLT.50 Further,
under ARSIWA, it is clear that the temporary non-performance of an
unconnected treaty obligation may be justified as a response to the
breach by a state of one of its obligations, subject to fulfilment of the
requirement of proportionality and the other conditions for counter-
measures there set out.
To look at it from the other angle, the suspension of a treaty (or of a
severable part of a treaty), if it is legally justified, places the treaty in
a sort of limbo; it ceases to constitute an applicable legal standard for the
parties while it is suspended and until action is taken to bring it back
into operation. By contrast, conduct inconsistent with the terms of a
treaty in force, if it is justified as a countermeasure, does not have the
effect of suspending or terminating the treaty; the treaty continues to
apply and the party taking countermeasures must continue to justify its
non-compliance by reference to the criteria for taking countermeasures
(necessity, proportionality, etc.) for as long as its non-compliance lasts.51
The Court in Gabčı́kovo-Nagymaros affirmed this point in relation to
necessity, but it is equally relevant to countermeasures as another cir-
cumstance precluding wrongfulness. The Court in that case stressed that
even if a state of necessity is found to exist, it is not a ground for the termination
of a treaty. Even if found justified, it does not terminate a Treaty; the Treaty may
be ineffective as long as the condition of necessity continues to exist; it may in
fact be dormant, but – unless the parties by mutual agreement terminate the

at Dunakiliti, it did not, for all that, suspend the application of the 1977 Treaty itself or
then reject that Treaty. The conduct of Hungary at that time can only be interpreted as
an expression of its unwillingness to comply with at least some of the provisions of the
Treaty and the Protocol of 6 February 1989, as specified in the Joint Contractual Plan.
The effect of Hungary’s conduct was to render impossible the accomplishment of the
system of works that the Treaty expressly described as “single and indivisible”.’
49
See e.g. ARSIWA Commentary, Pt III, Ch. II, §4. For a summary of the main differences
see ILC Ybk 2000/I, 268–9 (Crawford).
50
ICJ Rep. 1997 p. 7, 56.
51
See ARSIWA Commentary, Art. 22, §4. See also Crawford, Third Report, 86–7.
684 the implementation of responsibility

treaty – it continues to exist. As soon as the state of necessity ceases to exist, the
duty to comply with treaty obligations revives.52

The Court’s position is borne out by the commentary to what became

Article 60 VCLT, which emphasized that the right to terminate or sus-
pend a treaty under the law of treaties arises ‘independently of any right
of reprisal’.53 In any case, the termination of a treaty under VCLT Article
60 could never be justified as a countermeasure, because it does not meet
the requirement of reversibility.
The basic distinction between the law of treaties and the law of state
responsibility is explicitly safeguarded by Article 73 VCLT. The distinc-
tion is also apparent from a consideration of the different functions of
each response: suspension of an obligation is a protective response,
whereas a countermeasure involving non-performance of a treaty obli-
gation is directed at the enforcement of a right.54 International courts
and tribunals have had no difficulty applying both sets of rules to the
same factual situations depending on the context.55

21.2.4 Countermeasures by an injured state

The fourth category of unilateral self-help measure is countermeasures,
covered in ARSIWA Part III, Chapter II.56 The concept of countermeas-
ures is recognized both by governments and international courts and
tribunals as a legitimate form of peaceful self-help under general inter-
national law, a necessary feature of the framework of ‘private justice’ in
a decentralized system.57
But countermeasures – especially collective countermeasures – remain
deeply controversial, associated as they are with a history of power
politics and gunboat diplomacy in international relations.58 Indeed, the
52
ICJ Rep. 1997 p. 7, 63. The inconsistent capitalization is in the original.
53
ILC Ybk 1966/II, 255 (commentary to Draft Art. 57).
54
Zemanek, (1987) 47 ZaöRV 32, 35.
55
See US–France Air Services Agreement, (1978) 54 ILR 303; Rainbow Warrior (New Zealand v.
France), (1990) 82 ILR 499, 550–1; Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 38. See further
Alland (2010), 1132–4; Forlati (2012).
56
For the evolution of the chapter between first reading and final adoption, see Crawford,
Second Report, 64, 89–96; Crawford, Third Report, 77–97; Crawford, Fourth Report,
14–19. See further essays by Alland, Sicilianos, Iwasawa and Iwatsuki, O’Keefe, Kamto,
Borelli and Olleson, Leben and Boisson de Chazournes, in Crawford, Pellet and Olleson
(2010), 1127–214.
57
See Lesaffre (2010). For the view that the ARSIWA provisions on countermeasures
represent customary international law, see the decision of the NAFTA Chapter 11
tribunal in Corn Products International v. Mexico, (2008) 146 ILR 581, 624.
58
For an overview of practice on reprisals during the nineteenth and early twentieth
centuries see Colbert, Retaliation in International Law (1948), 60–103.
 implementation by extrajudicial process 685

term ‘reprisals’ was traditionally used to refer to otherwise unlawful

measures of self-help, including the use of force, taken in response to a
prior breach of international law.59 More recently, the use of the term
‘reprisals’ has been restricted to action taken by belligerents in the
context of international armed conflict – that is, belligerent reprisals.
In the modern era of the UN Charter, with its general prohibition of the
unilateral use of force, the term ‘countermeasures’ accordingly con-
tinues to deal with that part of the traditional category of reprisals which
is not linked to armed conflict. A countermeasure is thus a peaceful
unilateral self-help measure.
The ARSIWA do not contain a definition of countermeasures as such.60
Alland has defined them as
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.61

In other words, countermeasures involve non-compliance by one state

with an international obligation owed towards another state, adopted in
response to a prior breach of international law by that other state and
aimed at inducing it to comply with its obligations of cessation and
reparation.62 They operate as a circumstance precluding wrongfulness
in the law of state responsibility (ARSIWA Article 22).63 Unlike the
exceptio, which is limited to the suspension of performance of the same
or a closely related obligation, a state adopting countermeasures may in
principle choose which obligation to disregard, with no requirement of
reciprocity.64 It is a broad and flexible concept which affords states
considerable discretion in inducing compliance with international law.
59
See ARSIWA Commentary, Pt III, Ch. II, §3 (with further references).
60
But see Draft Art. 47(1) adopted on first reading: ‘For the purposes of the present articles,
the taking of countermeasures means that an injured State does not comply with one or
more of its obligations towards a State which has committed an internationally
wrongful act in order to induce it to comply with its obligations under articles 41 to 46,
as long as it has not complied with those obligations and as necessary in the light of its
response to the demands of the injured State that it do so.’ This formulation did not
survive the second reading; see Crawford, Third Report, 79–80, 86–8.
61
Alland (2010), 1135.
62
See e.g. ARSIWA, Arts. 22, 49. For support in international jurisprudence: Naulilaa
(Portugal v. Germany), (1928) 2 RIAA 1011, 1025–6; Cysne, (1930) 2 RIAA 1035, 1056;
US–France Air Services Agreement, (1978) 54 ILR 303, 337–41; Gabčı́kovo-Nagymaros, ICJ
Rep. 1997 p. 7, 55–7.
63
See ARSIWA Commentary, Art. 22; Lesaffre (2010); Chapter 9.
64
ARSIWA draws no distinction between so-called ‘reciprocal’ countermeasures and other
measures; see ARSIWA Commentary, Pt III, Ch. II, §5.
686 the implementation of responsibility

But, like other unilateral self-help measures, countermeasures are

liable to abuse. This potential for abuse is not only aggravated by the
flexible definition of countermeasures and the controversial history of
reprisals with which the modern concept of countermeasures is histor-
ically associated, but it is also exacerbated by the factual inequalities
between states. As a result, resort to countermeasures under inter-
national law is carefully limited by a number of substantive and proced-
ural safeguards, codified in ARSIWA Articles 49–53.65 Like the rest of the
ARSIWA, the provisions on countermeasures are residual in character
and remain subject to any special rules to the contrary.66

21.2.4.1 The scope and object of countermeasures

The object and limits of justified countermeasures are set out in ARSIWA
Article 49:
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 respon-
sible 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.

As already suggested, the existence of a prior breach of international

law – entitling a state to invoke the responsibility of the wrongdoing
state – is a ‘fundamental prerequisite’ of any lawful countermeasure.67
A state that resorts to countermeasures on the basis of a bona fide belief
that a breach has occurred does so at its own peril, and may incur
responsibility for its own wrongful act in the event that its assessment
is unfounded.68
65
For a brief overview see §6. The provisions as finally adopted were the outcome of a lively
debate on how best to strike the appropriate balance between recognizing the right to
take countermeasures while curbing their misuse; see e.g. ILC Report 1999, UN Doc.
A/54/10; Crawford, Third Report, 77–8; Crawford, Fourth Report, 14–15; ILC Report 2001,
UN Doc. A/56/10, 22–3.
66
See ARSIWA Commentary, Pt III, Ch. II, §9; Art. 55. The countermeasures regime under
WTO law provides one example of lex specialis: see Gomula (2010).
67
ARSIWA Commentary, Art. 49, §2; Draft Articles Commentary, Art. 47, §1.
68
See ARSIWA Commentary, Art. 49, §3.
 implementation by extrajudicial process 687

As the Court affirmed in Gabčı́kovo-Nagymaros, a second basic condition

of a lawful countermeasure is that it must be directed against the state
responsible for the wrongful act.69 It cannot be taken urbi et orbi. While
some incidental or collateral effects on third states may be unavoidable
in an interdependent world, a countermeasure cannot be specifically
aimed at violating the individual rights of third states. This principle,
initially affirmed by an arbitral tribunal in the Cysne case during the
inter-war period,70 is the equivalent in the law of countermeasures to the
pacta tertiis rule on the relative effect of treaties, and its equivalent also
for obligations under general international law. As the ILC has stressed,
the wrongfulness of a countermeasure is accordingly precluded exclu-
sively in relation to the wrongdoing state, a principle which continues to
be recognized by international tribunals.71 By extension, however, inci-
dental or collateral effects on third states that fall short of violating
obligations owed to those third states by the state taking countermeas-
ures will not take countermeasures outside the scope of the ARSIWA.72
A third primary condition for the lawfulness of a countermeasure was
noted by the International Court in Gabčı́kovo-Nagymaros, although the
Court was not required to make a decision on this particular point for
the resolution of that case. The Court observed that the purpose of a
countermeasure must be ‘to induce the responsible state to comply with
its international obligations, and that the measure must therefore be
reversible’.73 This raises two points. First, if the countermeasure is not
taken for the purpose of requiring the responsible state to meet its
obligations, it will not be lawful.74 Thus the Court found in Interim Accord
that the steps taken by Greece to object to Macedonia’s admission to
NATO could not be explained as an attempt to induce the latter to stop

69
ICJ Rep. 1997 p. 7, 55.
70
(1930) 2 RIAA 1035, 1056–7. The tribunal in that case was dealing with belligerent
reprisals, but the same principle applies to non-forcible countermeasures; see ARSIWA
Commentary, Art. 22, §5.
71
See ARSIWA Commentary, Art. 22, §§4–5; Art. 49, §4. See further e.g. Mexico – Tax
Measures on Soft Drinks and Other Beverages, WT/DS308/R, 7 October 2005, §4.335 n. 73; Corn
Products International v. Mexico, (2008) 146 ILR 581, 625.
72 73
ARSIWA Commentary, Art. 22, §4; Art. 49, §5. ICJ Rep. 1997 p. 7, 56–7.
74
The formulation of the legitimate objects and purposes of countermeasures evolved in
the course of the ILC’s work, as they were progressively divorced from measures that are
punitive rather than instrumental in character: see e.g. Ago, Eighth Report, ILC Ybk
1979/II(1), 39–47, discussing Draft Art. 30, which precluded the wrongfulness of
‘legitimate application of a sanction’, with the term ‘sanction’ understood as referring to
‘an action the object of which is to inflict punishment or to secure performance’;
Arangio-Ruiz, Third Report, 15–16; Crawford, Third Report, 78–9.
688 the implementation of responsibility

using a symbol prohibited by the Interim Accord, and it therefore

declined to consider any further arguments on the law of countermeas-
ures in that case.75 Second, the question of reversibility is intimately
linked to the instrumental function of countermeasures, to the extent
that it implies a reversion to legality on both sides after the objectives of
cessation and reparation have been met.76 The requirement of revers-
ibility, while not absolute,77 thus reinforces the notion that counter-
measures must have a temporary, essentially protective or remedial
character, not a punitive one.78 The essence of a countermeasure may
be described as a ‘shield rather than a sword’.79

21.2.4.2 Prohibited countermeasures

While the concept of countermeasures affords states flexibility in deter-
mining which obligations to disregard, it would be absurd if a state could
choose to suspend any obligation of international law. Considerations of
good order and humanity strongly suggest some limitation on the range
of obligations whose performance a state may legitimately suspend by
way of countermeasures. Already during the inter-war period, the arbi-
tral tribunal in Naulilaa stressed, rather obscurely, that the use of coun-
termeasures was ‘limited by the experiences of humanity and the rules of good
faith’.80 More recently, the ICTY trial chamber observed in the Kupreškic´
case that ‘barbarous means of seeking compliance with international
law’ are clearly unlawful.81 But pronouncements like these do not spell
out any clear basis for limitation of the obligations a state may legitim-
ately suspend by way of countermeasures.
One obvious basis is provided by ARSIWA Article 26, which provides
that nothing in Part I, Chapter V – which includes Article 22 on counter-
measures – precludes the wrongfulness of any act of a state which is not
in conformity with an obligation arising under a peremptory norm.82
So countermeasures may not derogate from peremptory norms. Clearly,

75 76
Interim Accord, ICJ, 5 December 2011, §164. See ILC Ybk 2000/I, 265 (Crawford).
77
As the commentary points out, it may not be possible in all cases to reverse all of the
effects of countermeasures; ARSIWA Commentary, Art. 49, §9.
78
For a similar conclusion see ibid., §§1, 7. On the time factor in the application of
countermeasures see Kamto, in Crawford, Pellet and Olleson (2010) 1169.
79
See ARSIWA Commentary, Pt I, Ch. V, §2.
80
(1928) 2 RIAA 1011, 1026: ‘limitée par les expériences de l’humanité et les règles de la bonne foi’
(emphasis in original).
81
ICTY Case No. IT-95-16-T, 14 January 2000, §528 (discussing reprisals against civilians).
82
See Crawford, Third Report, 83–5, 90–1; Leben, in Crawford, Pellet and Olleson (2010)
1197.
 implementation by extrajudicial process 689

‘a genocide cannot justify a counter-genocide’,83 whether by reference

to countermeasures or any other rule or doctrine of international law.
This exclusion of measures in breach of peremptory norms from the
remit of lawful countermeasures is a starting point for a list of pro-
hibited countermeasures, set out in ARSIWA Article 50. But ARSIWA
Article 50 also provides that countermeasures shall not affect certain
other obligations whose peremptory status is less evident. As a result,
the precise rationale for the exclusion of these obligations requires
clarification.
The critique that the ILC’s treatment of prohibited countermeasures
does not appear to be based on principle84 finds support in the rather
disparate list of excluded countermeasures. ARSIWA Article 50 provides
as follows:
Obligations not affected by countermeasures
1. Countermeasures shall not affect:
(a) the obligation to refrain from the threat or use of force as embodied in
the UN Charter;
(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.

In relation to ARSIWA Article 50(1), the ILC commentary provides that

‘by reason of their character . . . [these obligations] are sacrosanct’.85
Whether or not this sacrosanct character is expressed by their peremp-
tory status, the ILC deemed it essential to single out these inviolable
obligations for specific mention. By contrast, the exclusions in ARSIWA
Article 50(2) are said to be based ‘not so much [on] the substantive

83
See ARSIWA Commentary, Art. 26, §4; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter-claims,
Order, 17 December 1997, [1997] ICJ Rep. 243, 258.
84
ILC Ybk 2001/I, 6; Crawford, Fourth Report, 16. For similar criticism see also ILC Ybk
2001/I, 113 (Pellet).
85
See ARSIWA Commentary, Art. 50, §§1–2.
690 the implementation of responsibility

character of the obligation[s] but [their] function in relation to the

resolution of the dispute between the parties which has given rise to
the threat or use of countermeasures’.86
The apparent absence of any common rationale behind the list of
exclusions in ARSIWA Article 50 has a straightforward and pragmatic
explanation: beyond the principle of peremptory norms,87 it was not
possible in the ILC and among states to find agreement on a more
rigorous basis. As the Drafting Committee explained in 2001, the Article
was drafted with a view to state practice, and accordingly it contained
‘specific provisions, not general principles that could be subjected to
different interpretations . . .’.88 The list of specific exclusions was accord-
ingly adopted without prejudice to the peremptory status of each
individual obligation.89
The ILC still found it necessary to include a general catch-all category
covering peremptory norms in order to safeguard possible future devel-
opments and reinforce the basic notion – formally adopted in ARSIWA
Article 26 – that countermeasures derogating from such fundamental
obligations were, by definition, impermissible.90 Leaving this general
exclusion aside, the following subsections briefly assess each of the
specific exclusions in ARSIWA Article 50 in turn.
(i) The obligation to refrain from the threat or use of force. The
exclusion of forcible countermeasures in ARSIWA Article 50(1)(a) is
uncontroversial: the rules embodied in the UN Charter relating to
the use of force are widely regarded as peremptory norms.91 The Charter
era provides ample authority to support an exclusion of forcible

86
See ibid., §§11, 15.
87
It should be noted, however, that even the peremptory status of some of the proposed
exclusions in ARSIWA, Art. 50(1) was controversial. See e.g. UN Doc. A/CN.4/488, 133
(Ireland, United States and France); UN Doc. A/CN.4/515, 78 (United Kingdom), 79 (US).
88
ILC Ybk 2001/I, 117 (Tomka); cf. ILC Ybk 2000/I, 397 (Gaja).
89
ILC Ybk 2001/I, 117 (Tomka). For a similar approach on first reading see Draft Articles
Commentary, Art. 50, §1.
90
Crawford, Third Report, 90; ILC Ybk 2000/I, 397 (Gaja); ILC Ybk 2001/I, 111 (Tomka);
ARSIWA Commentary, Art. 50, §9; Art. 40, §§4–6. A similar position had been adopted on
first reading, see ILC Ybk 1993/I, 145 (Mikulka); Draft Articles Commentary, Art. 50, §§1, 26.
91
See e.g. §§1 and 3 of the commentary to what became VCLT, Art. 53, ILC Ybk 1966/II,
247–8; ARSIWA Commentary, Art. 40, §4 (with further references); ILC Ybk 1993/I, 145
(Mikulka); Draft Articles Commentary, Art. 50, §3. For judicial affirmation see Nicaragua,
ICJ Rep. 1986 p. 14, 100–1, 127; 153 (Judge Nagendra Singh); 199 (Judge Sette-Camara);
Oil Platforms (Iran v. US), ICJ Rep. 2003 p. 161, 327–8, 329–30 (Judge Simma), 291 (Judge
Elaraby, diss.), 269 (Judge Al-Khasawneh, diss.); Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, ICJ Rep. 2004 p. 136, 254 (Judge Elaraby);
 implementation by extrajudicial process 691

countermeasures. The International Court unequivocally affirmed this

prohibition in Corfu Channel in 1949.92 From the 1950s onwards, the
prohibition of forcible countermeasures has also been repeatedly recog-
nized by the UN Security Council,93 as well as in the ILC.94 In 1970, the
UN General Assembly adopted the Friendly Relations Declaration, which
affirmed that ‘States have a duty to refrain from acts of reprisal involv-
ing the use of force’.95 The customary law status of that resolution was
later recognized by the International Court in the Nicaragua case.96
In 1978, the arbitral tribunal in the Air Services case introduced the
modern concept of countermeasures and reaffirmed:
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 ‘countermeasures’.97
The Court observed in the Nicaragua case that ‘[w]hile an armed attack
would give rise to an entitlement of collective self-defence, a use of force
of a lesser degree cannot . . . produce any entitlement to take collective
counter-measures involving the use of force.’98 Similarly, in Nuclear
Weapons, the Court noted that ‘armed reprisals in time of peace . . .
are considered to be unlawful’.99 These antecedents form the basis of
the prohibition in ARSIWA Article 50(1)(a). This prohibition was
reaffirmed in the Guyana/Suriname arbitration with express reference to
Article 50(1)(a).100
(ii) Obligations under international human rights and humanitarian
law. The classical Naulilaa formula excluding those countermeasures

Armed Activities on the Territory of the Congo (DRC v. Uganda), ICJ Rep. 2005 p. 168, 223–7.
See further Leben (2010).
92
Corfu Channel (UK v. Albania), ICJ Rep. 1949 p. 4, 35.
93
See Draft Articles Commentary, Art. 50, §5 n. 758, which refers to the following
examples: SC Res. 111 (1956); SC Res. 171 (1962); SC Res. 188 (1964); SC Res. 316 (1972);
SC Res. 332 (1973); SC Res. 573 (1985); SC Res. 1322 (2000).
94
For an early affirmation see Fitzmaurice, Fourth Report on the Law of Treaties, ILC Ybk
1959/II, 67 (commenting on his Draft Art. 18 on reprisals).
95
See the Declaration on Principles of International Law concerning Friendly Relations
and Cooperation among States in accordance with the Charter of the United Nations,
Principle 1, §6.
96
ICJ Rep. 1986 p. 14, 101. See also ARSIWA Commentary, Art. 50, §5; UN Doc.
A/CN.4/488, 129 (Ireland).
97
US–France Air Services Agreement, (1978) 54 ILR 303, 337.
98
ICJ Rep. 1986 p. 14, 127. See also ARSIWA Commentary, Art. 50, §5 n. 757.
99
Legality of the Threat or Use of Nuclear Weapons, ICJ Rep. 1996 p. 226, 246.
100
Guyana/Suriname (2007) 139 ILR 566, 702.
692 the implementation of responsibility

which do not meet the requirements of humanity101 has become firmly

entrenched in international law.102 But some ambiguity remains over
precisely what this entails. Human rights obligations are not, in the first
instance at least, owed to particular states, and it is accordingly difficult
to see how a human rights obligation could itself be the subject of
legitimate countermeasures. In any event, as a minimum, it is clear from
ARSIWA Articles 22 and 50(1)(d) that a state cannot lawfully take coun-
termeasures that violate those human rights obligations that qualify as
peremptory norms. The question then becomes whether the entire body
of human rights law or only a small part of it has attained peremptory
status. Judge Tanaka represents the former view. In Second South West
Africa, he suggested:
If we can introduce in the international field a category of law, namely jus cogens,
recently examined by the International Law Commission, a kind of imperative
law which constitutes the contrast to jus dispositivum, capable of being changed by
way of agreement between States, surely the law of human rights may be
considered to belong to the jus cogens.103
But Judge Tanaka’s suggestion that peremptory norms cover the whole
body of human rights law remains a minority view.104
In truth, beyond a core of basic human rights, there is no agreement
about the peremptory status of individual human rights obligations.105
The ILC commentaries to ARSIWA Articles 26 and 40 adopt the same
approach and limit themselves to an illustration of obligations that
clearly have attained peremptory status: the prohibitions of aggression,
genocide, slavery, racial discrimination, crimes against humanity and
torture, and the obligation to respect the right to self-determination.106
The question facing the ILC was accordingly whether, beyond the narrow
list of established peremptory norms, other human rights obligations
should in principle also be excluded by way of countermeasures.
101
(1928) 2 RIAA 1011, 1026. See also IDI Res. 1934/III (Paris), Art. 6(4).
102
See Crawford, Third Report, 84–5, 90; ARSIWA Commentary, Art. 50, §§6–8; Borelli and
Olleson, in Crawford, Pellet and Olleson (2010) 1177.
103
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, ICJ Rep.
1966 p. 6, 298 (Judge Tanaka, diss.). For a similar (contemporaneous) position see also
Verdross, (1966) 60 AJIL 59.
104
For commentators indirectly supporting Judge Tanaka’s position see e.g. Riphagen,
Preliminary Report on State Responsibility, ILC Ybk 1980/II(1), 127; Zemanek (1987),
39–40 (referring to the totality of the Universal Declaration of Human Rights, GA Res.
217A(III), 10 December 1948, as part of ius cogens); Parker and Neylon, (1989) 12 Hastings
ICLR 411, 441–3.
105
For discussion see e.g. Orakhelashvili (2006), 53–60 (with many further references).
106
See ARSIWA Commentary, Art. 26, §5; Art. 40, §§4–5. The ILC adopted the same
approach in relation to erga omnes obligations: ibid., Art. 48, §9.
 implementation by extrajudicial process 693

The ILC answered this question in the negative. The Drafting Commit-
tee in 2000 explained that ‘given the wide meaning acquired by the
concept of human rights, resort to countermeasures would be severely
limited unless the reference to human rights was qualified’.107 It added
that ‘the important thing was that the effects of countermeasures should
essentially be limited to the injured State and the responsible State and
should have only minimal effects on individuals’.108 The Drafting Com-
mittee evidently referred to state practice which appeared to have
respected certain humanitarian limitations in cases where the use of
countermeasures might have had indirect consequences on the nationals
of the target state.109 In short, collective punishment of the population of
the target state should be avoided.110
The ILC ultimately adopted this approach. Further, to emphasize that
Article 50(1)(b) deals not only with direct violations of the state’s human
rights obligations but equally with indirect breaches, the provision pro-
vides that ‘countermeasures shall not affect obligations for the protection
of fundamental human rights’ (emphasis added).111 The commentary to
this provision explains that violations of non-derogable human rights
obligations under relevant human rights treaties as well as indirect
human rights violations causing ‘collateral infliction of suffering upon
the most vulnerable groups within the targeted country’ are excluded
from the group of permissible countermeasures.112 This clarification
was widely supported by states.113
Compared with the uncertainty that has surrounded the relationship
between countermeasures and human rights obligations, the position

107 108
ILC Ybk 2000/I, 397 (Gaja). Ibid.
109
It should be noted, however, that not all of these humanitarian exceptions necessarily
involved conduct by the acting state or states which was required of them under
international human rights law. See Crawford, Third Report, 84.
110
See Draft Articles Commentary, Art. 14, §§20–2; see also Crawford, Third Report, 84;
Riphagen, Preliminary Report on State Responsibility, ILC Ybk 1980/II(1), 127 (referring
to the humanitarian exception affirmed in the Namibia case).
111
The ‘fundamental human rights’ terminology is largely identical in meaning to the
notion of ‘basic human rights’ used by the International Court in Barcelona Traction,
Light & Power Company, Limited (Spain v. Belgium), Second Phase, ICJ Rep. 1970 p 3: see ILC
Ybk 2000/I, 397 (Gaja). See further Borelli and Olleson (2010), 1182–8.
112
See commentary to Art. 50 ARSIWA, §7, citing Committee on Economic, Social and
Cultural Rights, General Comment 8, 5 December 1997, UN Doc. E/C.12/1997/8, §1. It
may be noted that state practice does not suggest that the acting state or states (notably
through the imposition of comprehensive trade embargos) have indirectly breached
basic human rights obligations. In any case, serious problems of causality could arise
under such a scenario; accordingly, the necessary attribution of wrongful conduct to
the state or states taking (collective) countermeasures could be problematic.
113
UN Doc. A/CN.4/513, 28.
694 the implementation of responsibility

under humanitarian law seems clearer. In Nuclear Weapons, the Inter-

national Court affirmed that ‘a great many rules of humanitarian law
applicable in armed conflict . . . constitute intransgressible principles of
international customary law’.114 In the same case, President Bedjaoui
agreed with this finding and strongly suggested that the term ‘intrans-
gressible’ was shorthand for peremptory norms.115 In the Kupreškic´ case,
the ICTY trial chamber reiterated that ‘most norms of international
humanitarian law . . . are also peremptory norms of international
law’.116 As the ILC commentary to ARSIWA Article 40 suggests, it seems
generally accepted that the basic rules of international humanitarian law
are peremptory in character.117 On that basis, the suspension of most
norms of international humanitarian law by way of countermeasures
would be excluded under ARSIWA Article 26. Moreover, Article 50(1)(c)
excludes ‘obligations of a humanitarian character prohibiting reprisals’.
The prohibition of reprisals against civilians is well established118 and
the separate articulation of this principle within the context of Article 50
is consistent with the ILC’s desire to ensure that effects of countermeas-
ures on individuals should be kept to a minimum.
In Prisoners of War – Eritrea’s Claim 17, heard by the Eritrea–Ethiopia
Claims Commission in 2003, Eritrea relied on Article 50 to support its
arguments that Ethiopia had violated its international obligations by
failing to repatriate promptly some 1,300 prisoners of war:
Ethiopia’s suspension of prisoner of war exchanges cannot be justified as a non-
forcible counter-measure under the law of State responsibility because, as Article
50 [ARSIWA] emphasizes, such measures may not affect ‘obligations for the
protection of fundamental human rights’, or ‘obligations of a humanitarian
character prohibiting reprisals’.119

The Commission held that Eritrea’s arguments were well founded.120

(iii) The separability of dispute settlement provisions. Where binding
third-party dispute settlement procedures are available to states it
seems reasonable to assume that the role of countermeasures is dimin-
ished, if not entirely excluded. Evidently, dispute settlement provisions
114
Nuclear Weapons, ICJ Rep. 1996 p. 226, 257. See also Wall, ICJ Rep. 2004 p. 136, 199.
115
ICJ Rep. 1996 p. 226, 273. See also 496 (Judge Weeramantry, diss.); 574 (Judge Koroma,
diss.).
116
Kupreškic´, ICTY Case No. IT-95-16, 14 January 2000, §520.
117
See ARSIWA Commentary, Art. 40, §5.
118
See ibid., Art. 50, §8; for more detailed discussion of the conventional and customary
rules see Borelli and Olleson (2010), 1188–95.
119 120
Prisoners of War – Eritrea’s Claim 17, (2003) 135 ILR 199, 247. Ibid., 247.
 implementation by extrajudicial process 695

in treaties apply precisely in circumstances where a breach has occurred

or is asserted. A principle of separability therefore seems appropriate
also in the context of the law of countermeasures. It finds strong support
under general international law.
The non-reciprocal or autonomous character of dispute settlement
provisions is explicitly recognized in VCLT Article 60(4), which provides
that ‘the foregoing paragraphs are without prejudice to any provision in
the treaty applicable in the event of a breach’.121 In his capacity as
Special Rapporteur on the law of arbitral procedure, Scelle had pointed
out that it was well established that the ‘undertaking to arbitrate’ was
‘inviolable’ and therefore rightly constituted the ‘most vital principl[e] of
arbitration’.122
The ICJ has affirmed this principle on several occasions. In Appeal
Relating to the Jurisdiction of the ICAO Council, the Court emphasized that
a merely unilateral suspension [could not] per se render jurisdictional clauses
inoperative, since one of their purposes might be, precisely, to enable the validity
of the suspension to be tested.123

The Court continued:

The acceptance of such a proposition would be tantamount to opening the way
to a wholesale nullification of the practical value of jurisdictional clauses . . .
Such a result, destructive of the whole object of adjudicability, would be
unacceptable.124

In similar vein, the Court reaffirmed in Hostages:

In any event, any alleged violation of the Treaty [of Amity] by either party could
not have the effect of precluding that party from invoking the provisions of the
Treaty concerning the pacific settlement of disputes . . . It is precisely when
difficulties arise that the treaty assumes its greatest importance.125

121
The laconic reference in §10 of the commentary to what became VCLT, Art. 60 (Draft
Art. 57), underlines the uncontroversial character of this provision: see ILC Ybk 1966/II,
253, 255. See further Simma and Tams (2011), 1357.
122
Scelle, Fourth Report on the Law of Arbitral Procedure, ILC Ybk 1958/II, 3. See further
the preamble to the ILC’s Model Rules on Arbitral Procedure, ibid. at 83; and for the
approval of the draft rules see GA Res. 1262(XIII), 14 November 1958.
123
ICAO Council, ICJ Rep. 1972 p. 46, 53. See also Namibia, ICJ Rep. 1971 p. 16, 47 for an
affirmation of the customary law status of VLCT, Art. 60 as a whole.
124
ICAO Council, ICJ Rep. 1972 p. 46, 64. See also Schwebel, International Arbitration: Three
Salient Problems (1987), 13–59.
125
United States Diplomatic and Consular Staff in Tehran (US v. Iran), ICJ Rep. 1980 p. 3, 28
(§§53–4).
696 the implementation of responsibility

In short, there is ample support under general international law for

the separability or autonomy of dispute settlement provisions. Article
50(2)(a) ARSIWA largely reaffirms this position in providing that ‘[a] state
taking countermeasures is not relieved from fulfilling its obligations . . .
under any dispute settlement procedure applicable between it and the
responsible State.’
(iv) Obligations safeguarding diplomatic and consular inviolability.
The preamble to the Vienna Convention on Diplomatic Relations (VCDR)
explains that the granting of privileges and immunities to diplomatic
representatives is not so much intended to benefit individuals as ‘to
ensure the efficient performance of the functions of diplomatic missions
as representing States’.126 The effective and smooth operation of at least
a basic level of diplomatic channels of communication is integral to
peaceful coexistence among states – a fortiori in times of crisis, as evi-
denced by VCDR Article 45.127 As the Court was careful to stress in
Hostages, the institution of diplomacy is essential for effective inter-
national co-operation and for enabling states to achieve mutual under-
standing and resolve their differences by peaceful means.128 The raison
d’être of diplomatic law thus strongly suggests some limitation on the use
of countermeasures under this regime.
Much of the debate in the ILC (and elsewhere) on this issue has focused
on a somewhat unfortunate passage in the Court’s judgment in Hostages. In
that case, the Court was addressing the issue of whether Iran’s violations of
diplomatic law – that is, through its connivance in the hostage taking of US
diplomatic and consular officials in Tehran, Tabriz and Shiraz – could be
justified as a countermeasure in response to alleged US violations of diplo-
matic law towards the host state, Iran. The Court rejected the Iranian
contention that special circumstances justified its actions,129 holding that
‘diplomatic law itself provides the necessary means of defence against, and
sanction for, illicit activities by members of diplomatic or consular mis-
sions’.130 In a much criticized passage it continued:

126
18 April 1961, 500 UNTS 95, Preamble.
127
Cf. Draft Articles Commentary, Art. 50, §14; Crawford, Third Report, 89; Denza,
Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations (1998), 1.
VCDR, Art. 45 provides that a receiving state must respect and protect the premises of a
mission, together with its property and archives, ‘even in the case of armed conflict’.
128
United States Diplomatic and Consular Staff in Tehran (US v. Iran), Provisional Measures, 15
December 1979, ICJ Rep. 1979 p. 7, 19. To similar effect: Tehran Hostages, ICJ Rep. 1980
p. 3, 43.
129 130
See further ibid., 37. Ibid., 38.
 implementation by extrajudicial process 697

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 . . .131
A literal interpretation of this passage suggests that the Court
excluded a priori the use of countermeasures from the regime governing
diplomatic relations. But most commentators agree that this impression
is unfounded.132 The Court in Hostages was concerned to make a
narrower point: that is, that non-compliance with certain core obliga-
tions in the field of diplomatic law cannot be justified by reference to the
notion of countermeasures.
The ILC broadly supported this interpretation of the Hostages dictum,
excluding only inviolable or core obligations of diplomatic and consular
law from the remit of legitimate countermeasures. This was also in
response to observations by various members of the ILC that certain
countermeasures, such as breaking off diplomatic relations or restricting
the freedom of movement of diplomatic agents, were frequently used in
practice, and could be very effective; as such, recourse to countermeas-
ures in the area of diplomatic law should be limited but not wholly
prohibited.133 ARSIWA Article 50(2)(b) accordingly prohibits any coun-
termeasure which does not ‘respect the inviolability of diplomatic or
consular agents, premises, archives and documents’.134 Conversely, any
countermeasure that does not affect inviolable obligations under diplo-
matic and consular law remains legitimate.135

21.2.4.3 Proportionality
Even if it is established that a proposed countermeasure is not among the
categories of prohibited actions, the right to take countermeasures is not
unlimited. It has long been recognized that international law requires
131
Ibid., 40.
132
See e.g. ILC Ybk 1984/I, 304 (Sinclair); Zemanek (1987), 40; Sicilianos, Les réactions
décentralisées à l’illicite: des contre-mesures à la légitime défense (1990), 350–1; ILC Ybk 1992/I,
159 (Al-Khasawneh); Cannizzaro, (2001) 12 EJIL 889, 897–8; Simma and Pulkowski,
(2006) 17 EJIL 483, 514.
133
See ILC Ybk 1992/II(2), 34; ARSIWA Commentary, Art. 50, §14; Boisson de Chazournes,
in Crawford, Pellet and Olleson (2010) 1205, 1208.
134
That is, e.g., any countermeasure inconsistent with VCDR, Arts. 22, 24, 29, 44 and 45.
For a detailed analysis of these provisions see Denza (1998), 112–48, 157–64, 210–20,
389–91, 392–402 respectively.
135
See ARSIWA Commentary, Art. 50, §§14–15.
698 the implementation of responsibility

that countermeasures respect the important principle of proportional-

ity;136 that is, ‘the effects of a countermeasure must be commensurate
with the injury suffered, taking account of the rights in question’.137
This rule is reflected in ARSIWA Article 51, which requires in
addition that states take into account the gravity of the internationally
wrongful act.
The principle regulates both the types of countermeasure that may be
applied and their intensity. Franck describes it as a ‘brake on escalating
cycles of transactional violence’;138 such a brake is particularly import-
ant when the target state denies the unlawfulness of its own act that
purportedly triggered another state’s decision to take countermeasures
against it.139 It is clear that disproportionate countermeasures could
result in responsibility on the part of the state taking them.140 Indeed,
a state might sometimes choose to limit its response to retorsion, even
where it would be entitled to take countermeasures, on the basis that
countermeasures would be disproportionate to the injury suffered.141 As
the tribunal in the Air Services arbitration observed, judging proportion-
ality is not always easy, and it ‘can at best be accomplished by approxi-
mation’.142 Still, despite its indeterminacy, the operation of the principle
does have a practical influence on the conduct of interstate relations.143
Proportionality is crucial for ‘controlling the exercise of the decentral-
ised power conferred on states to react individually to internationally
wrongful acts’; it provides a functional connection between the aims and
the means of self-help measures.144 There is no requirement of reci-
procity for countermeasures to be deemed proportionate, but counter-
measures will be more likely to satisfy the proportionality test if they are
136
See e.g. Naulilaa, (1928) 2 RIAA 1011, 1026; US–France Air Services Agreement, (1978) 54 ILR
303, 338; Nicaragua, ICJ Rep. 1986 p. 14, 127. See also IDI Res. 1934/III (Paris), Art. 6(2):
‘Dans l’exercice des représailles, l’Etat doit se conformer aux règles suivantes: . . . (2)
Proportionner la contrainte employée à la gravité de l’acte dénoncé comme illicite et à
l’importance du dommage subi.’ Translation: ‘In the exercise of reprisals, the State
must comply with the following rules: . . . (2) The pressure employed must be
proportionate to the seriousness of the act denounced as illegal and the significance of
the damage suffered.’
137
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 56. On proportionality in the context of
countermeasures see generally Cannizzaro (2001); Franck, (2008) 102 AJIL 715; O’Keefe,
in Crawford, Pellet and Olleson (2010) 1157 (including further references at 1168).
138
Franck, (2008) 102 AJIL 715, 715.
139
O’Keefe, in Crawford, Pellet and Olleson (2010) 1157, 1160.
140 141
ARSIWA Commentary, Art. 51, §1. Giegerich (2011), §4.
142
US–France Air Services Agreement, (1978) 54 ILR 303, 338. See further Cannizzaro (2001);
O’Keefe (2010), 1165–6.
143 144
Franck (2008), 717–18. Cannizzaro (2001), 915.
 implementation by extrajudicial process 699

taken in relation to the same or a closely related obligation.145 It is also

clear that proportionality imposes a restriction on countermeasures
‘over and above that implied by their stated object’:146 that is, a claim
that an action was necessary to induce the responsible state to comply
with its obligations will not be enough to support the lawfulness of that
action if it was not also proportionate – but there is also the point that if
a measure is clearly disproportionate, it would be difficult to sustain an
argument that it was necessary.147
That the proportionality of countermeasures should be assessed not
purely on quantitative grounds but also on qualitative ones has been a
recurring theme.148 The countermeasures at issue in Air Services were not
exactly equivalent in effect to the original conduct, but the tribunal
approached the determination of proportionality as a matter of principle,
not simply a quantitative exercise.149 The same approach – combining a
quantitative assessment with a qualitative one – was adopted in Gabčı́kovo-
Nagymaros, where the Court concluded that the diversion of the Danube
carried out by Czechoslovakia was unlawful on grounds of disproportion-
ality.150 The step of taking into account the gravity of the internationally
wrongful act and the rights in question, as required by Article 51, is part of
ensuring that the measures adopted are compared against the proper
function of the action of self-redress; Cannizzaro describes this as the
essence of proportionality. Not only must the means chosen be appropri-
ate to the aim of the respondent state, that aim itself must also be
reasonable and appropriate, in the context of the structure of the breached
norm and of the legal consequences deriving from the breach.151
ARSIWA Article 51 has thus been recognized by international tribu-
nals as an authoritative statement of customary international law.152

145
See Crawford, Third Report, 87–8; ARSIWA Commentary, Art. 49, §6.
146
O’Keefe (2010), 1158.
147
See discussion in ibid., 1157–9; see further ARSIWA Commentary, Art. 51, §7.
148
See e.g. Arangio-Ruiz, Third Report, 21 n. 141; Arangio-Ruiz, Fourth Report, ILC Ybk 1992/
II(1), 23; ARSIWA Commentary, Art. 51, §§3–4, 6. See further O’Keefe (2010), 1160–5.
149
See ARSIWA Commentary, Art. 51, §3. The United States suspended Air France’s thrice-
weekly flights to Los Angeles in response to a mere prohibition of change of gauge on
the London–Paris sector, in commercial terms a much less onerous condition.
150
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 56.
151
Cannizzaro calls this ‘external proportionality’; by contrast, he argues that ‘internal
proportionality’ is a separate logical operation which requires an appraisal of the
appropriateness of the content of the measures adopted in relation to the result that
they seek to achieve (Cannizzaro (2001)).
152
E.g. the WTO Appellate Body in US – Definitive Safeguard Measures on Imports of
Circular Welded Carbon Quality Line Pipe from Korea, WT/DS202/AB/R, 15 February 2002,
700 the implementation of responsibility

21.2.4.4 Procedural incidents of countermeasures

The right to take countermeasures does not flow automatically from
another state’s wrongful act; certain steps must be taken first to
activate that right. The procedural conditions for countermeasures
are particularly important given that the wrongfulness of the act of
the target state that provoked them will not usually have been object-
ively determined at the time they are taken.153 With a view to estab-
lishing reasonable procedural conditions for resort to countermeasures
in a context where compulsory third-party dispute settlement may not
be available, but without interfering with such dispute settlement
mechanisms as are available,154 ARSIWA Article 52 builds on the
observations of the Air Services tribunal.155 Article 52(1) sets out two
basic requirements:
Conditions relating to resort to countermeasures
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.

It is evident from the chapeau of Article 52(1) that each of the condi-
tions must be satisfied prior to the commencement of countermeasures.
The conditions are cumulative.156 First of all, the injured state is
required to give the responsible state an opportunity to respond to the
allegation of wrongful conduct and to revert to a posture of legality. This
fundamental condition was emphasized by the International Court in
Gabčı́kovo-Nagymaros: ‘the injured State must have called upon the State
committing the wrongful act to discontinue its wrongful conduct or to
make reparation for it’.157
Second, a state intending to take countermeasures must notify the
target state and attempt to negotiate. Countermeasures could have ser-
ious consequences for the responsible state, and it may choose to

§259; a NAFTA Chapter 11 tribunal in ADM and Tate & Lyle v. Mexico, (2008)
146 ILR 439, 495–7.
153
Iwasawa and Iwatsuki, in Crawford, Pellet and Olleson (2010) 1149, 1149.
154
ARSIWA Commentary, Art. 52, §2.
155
US–France Air Services Agreement, (1978) 54 ILR 303, 339–41. See ARSIWA Commentary,
Art. 52, §§3–5.
156
Kamto (2010), 1170.
157
Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 56. This is referred to as ‘sommation’.
 implementation by extrajudicial process 701

reconsider its position; countermeasures should be ‘a wager on the

wisdom, not on the weakness of the other Party’.158 There is no strict
temporal relationship between the conditions in paragraphs (a) and (b),
and in practice it will frequently be the case that negotiations over a
dispute will have been ongoing for some time before an injured state
reaches a decision to take countermeasures.159 As Judge Bennouna
observed in Interim Accord, Greece did not comply with the procedural
conditions for implementing countermeasures in ARSIWA Article 52,
notably Article 52(1)(b), and was thus prevented from invoking the right
to take countermeasures on this ground also.160
Notwithstanding the requirements of notification and negotiation in
Article 52(1)(b), however, Article 52(2) recognizes that injured states may
take ‘such urgent countermeasures as are necessary’ to preserve their
rights.161 This corresponds to the notion of ‘interim countermeasures’
included in earlier drafts of what became Article 52(2).162 Such urgent
measures might include things like temporary suspension of licences or
stay orders, or freezing of assets; such actions are inherently reversible,
and moreover they may only be effective if taken promptly.163 The
provision for urgent countermeasures helps to ensure that injury to
states is not exacerbated by hampering their ability to respond in a
timely manner, including, for example, if that inability is caused by
delay or prevarication on the part of a responsible state. The purpose of
such measures must be the maintenance of the status quo.164 The spe-
cific reference in Article 52(2) to paragraph (b) of Article 52(1) makes it
clear that the right to take urgent countermeasures does not override the
primary obligation to call on the responsible state to rectify its wrongful
act in paragraph (a).
Article 52(3) provides for situations in which the wrongful act has
ceased and the dispute is pending before a competent court or tribunal
with authority to make a decision with binding effect for the parties. In
such a case ‘countermeasures may not be taken, and if already taken
must be suspended without undue delay’.165 The rationale is that once
the tribunal or court is properly constituted and in a position to deal

158
US–France Air Services Agreement, (1978) 54 ILR 303, 339–40.
159
ARSIWA Commentary, Art. 52, §§4–5.
160
Interim Accord, ICJ, 5 December 2011, Declaration of Judge Bennouna.
161
See ARSIWA Commentary, Art. 52, §6.
162 163
Crawford, Third Report, 80, 93–4 (on Draft Articles, Art. 48(1)). Ibid., 80.
164
See Iwasawa and Iwatsuki (2010), 1154.
165
See ARSIWA Commentary, Art. 52, §§7–8.
702 the implementation of responsibility

with the case, such that the dispute is ‘pending’ for the purposes of
Article 52(3)(b), the injured state could seek provisional measures for
its protection and countermeasures would no longer be necessary. It is
worth observing that any third-party dispute settlement procedure,
regardless of designation, is covered by the words ‘court or tribunal’,
but political organs or other bodies such as the UN Security Council are
excluded, as are tribunals with jurisdiction only between a private party
and the responsible state.166
Earlier incarnations of these provisions were highly controversial in
the ILC, with widespread disagreement over the extent to which compli-
ance with dispute settlement procedures should be a prerequisite for
initiating countermeasures.167 The final text emphasizes that counter-
measures are instrumental, not punitive, in character, and that unilat-
eral action cannot be justified once a dispute settlement process is under
way.168 The conditions in Article 52(3)(a) and (b) reinforce the temporary
character of countermeasures and that they are not intended to interfere
with machinery for the peaceful settlement of disputes. But under Art-
icle 52(4) the restrictions in paragraph 3 are inapplicable if the respon-
sible state fails to implement the dispute settlement procedures in good
faith.169 In general, the procedural conditions for countermeasures are
guided by the principles of necessity and non-aggravation of disputes.170

21.2.4.5 Termination of countermeasures

Countermeasures are permitted only for as long as the circumstances
justifying their use obtain – that is, while the injured state is seeking to
induce compliance with the responsible state’s obligations of cessation
and reparation. The temporary, provisional character of countermeas-
ures is central to the legal regime.171
ARSIWA Article 49(2) uses the words ‘for the time being’; it is evident
that the underlying obligations of the state taking countermeasures are
not themselves suspended or terminated, and the wrongfulness of its
conduct is only precluded provided that, and for so long as, the necessary
conditions for taking countermeasures are satisfied.172 As the commen-
tary to Article 49 suggests, where countermeasures have been effective
166
Ibid., §8.
167
See Crawford, Third Report, 80–2, 94 (on Draft Articles, Art. 48); Crawford, Fourth
Report, 16–17 (on Draft Articles, Art. 53).
168
See Crawford, Peel and Olleson, (2001) 12 EJIL 963, 982–4.
169 170
See ARSIWA Commentary, Art. 52, §9. Iwasawa and Iwatsuki (2010), 1152–5.
171 172
See Kamto (2010). ARSIWA Commentary, Art. 22, §4.
 implementation by extrajudicial process 703

in securing their instrumental function, they must be discontinued and

the performance of the obligation must be resumed.173 Article 53
ARSIWA makes this requirement clear by explicitly providing that a
countermeasure shall be terminated as soon as international legality
has been restored.174 No delay is tolerated; countermeasures must be
terminated ‘forthwith’ and a failure to do so has the potential to engage
the responsibility of the injured state.175

21.2.5 Collective countermeasures

If the question of unilateral countermeasures by an injured state has
been controversial, the notion of countermeasures by states that have
not themselves been directly injured by an internationally wrongful act
has been even more so. ‘Collective countermeasures’ is the term used to
describe not just countermeasures by a plurality of injured states or on
behalf of such injured states, but also countermeasures by third states
asserting a right to respond in the public interest to a breach of a
multilateral obligation to which they are privy.176 The legal position in
respect of both situations has been and remains uncertain; a review of
state practice on resort to collective countermeasures did not lead to
clear conclusions.177
On the first question – whether two or more states have the right to co-
operate to initiate countermeasures against a responsible state or states –
it seems that where there is a clearly identifiable injured state, other
states have sometimes participated in collective countermeasures at the
request and on behalf of that state, and the injured state’s own reaction
is treated as legally relevant by those other states.178 In Nicaragua, how-
ever, while acknowledging that an armed attack might give rise to a
right of collective self-defence at the request of the victim, the Court
denied that a use of force of a lesser degree of gravity could produce
any entitlement to take collective countermeasures involving the use

173
ARSIWA Commentary, Art. 49, §§7, 9.
174
For the drafting history of ARSIWA, Art. 53 see UN Doc. A/CN.4/488, 133 (the French
proposal); Crawford, Third Report, 94–6 (the proposed Draft Art. 50bis); ILC Ybk 2000/I,
400 (Gaja).
175
See Kamto (2010), 1176.
176
A/CN.4/507/Add.4, 101–2. Countermeasures by non-directly injured states may also be
described as ‘third-party countermeasures’: see Dawidowicz (2006), 333 (esp. n. 1).
177
See Crawford, Third Report, 102–4; ARSIWA Commentary, Art. 54, §§3–6; cf.
Dawidowicz (2006), 408–9; Sicilianos, in Crawford, Pellet and Olleson (2010) 1137,
1145–8.
178
Crawford, Third Report, 105; ARSIWA Commentary, Art. 54, §5.
704 the implementation of responsibility

of force. It was clear to the Court that the alleged intervention by

Nicaragua – if proven – could not have justified countermeasures taken
by a state other than the injured state, and in particular could not have
justified the use of force.179 The Court did not address what the position
would be if the victim had requested that other states assist it in taking
collective (non-forcible) countermeasures against Nicaragua; it seems
reasonable to conclude, by analogy with collective self-defence, that the
position would be different.180 There seems to be no reason in principle
why a state injured by a breach of a multilateral obligation should be left
alone to seek redress for the breach. Bilateral countermeasures strongly
favour states that are more powerful; if weaker states are forced to resort
to bilateral countermeasures without the support of interested third
states, serious breaches may go unremedied.181 Of course, any counter-
measures taken collectively must abide by the rules governing resort to
individual countermeasures; proportionality will be a key concern.182
With respect to the second form of collective countermeasures, the
most controversial issues arise in connection with serious breaches of
obligations owed to the international community as a whole.183 ARSIWA
Article 48 recognizes that states other than an injured state may have an
interest in compliance with particular obligations that ‘transcend the
sphere of bilateral relations of the States parties’.184 However, the extent
to which these states may legitimately assert a right to react against
unremedied breaches has been a thorny issue. The fear is that treating
large numbers of states or even all states as having the right to react to
such breaches by taking countermeasures against the responsible state
conflicts with traditional conceptions of the law of state responsibility,
largely founded on bilateral relations, and risks undermining the pri-
mary role of the UN Security Council for the maintenance of inter-
national peace and security.185 The position under Draft Articles 40
and 47 as adopted on first reading was unacceptably uncontrolled and
unco-ordinated, effectively giving the impression that individual coun-
termeasures are a corollary to all kinds of injury broadly defined.186
Thus in 2000 the ILC provisionally adopted on second reading an
article governing countermeasures by states other than the injured

179
Nicaragua, ICJ Rep. 1986 p. 14, 127.
180
See Gabčı́kovo-Nagymaros, ICJ Rep. 1997 p. 7, 55; Crawford, Third Report, 105.
181 182
Dawidowicz (2006), 337. Huesa Vinaixa (2010), 954.
183
See Dawidowicz (2006); Gaja (2010) 957, 962; Sicilianos (2010).
184 185
See ARSIWA Commentary, Art. 48, §7. Sicilianos (2010), 1137–42.
186
Crawford, Third Report, 102, 106.
 implementation by extrajudicial process 705

state.187 It was drafted in an attempt to limit rather than expand the

circumstances in which these might be taken.188 Draft Article 54 dealt
rather succinctly with two different situations. The first concerned
countermeasures taken by a state entitled to invoke responsibility
under what is now Article 48 ‘at the request and on behalf of any State
injured by the breach’ (paragraph 1). The second concerned counter-
measures taken in response to serious breaches covered by what is now
Article 40, in the interest of the beneficiaries of the obligation breached
(paragraph 2). Paragraph 3 dealt with the co-ordination of countermeas-
ures taken by more than one state. The effect was as follows: within the
general limits of Chapter II, an Article 48 state could take countermeas-
ures in support of an injured state, or independently in the case of a
serious breach. Otherwise such states would be limited to the invocation
of responsibility under Article 48(2). By contrast, under former Article
40, any state could have taken countermeasures in the case of an ‘inter-
national crime’, a breach of human rights or the breach of certain
collective obligations, irrespective of the position of any other state,
including the state directly injured by the breach.
Draft Article 54 provoked a strong reaction, many governments
claiming that the effect of such a provision would be destabilizing
and that it had no basis in international law.189 The ILC was conse-
quently caught between a rock and a hard place: on the one hand,
deleting the provision on collective countermeasures altogether would
leave the impression that countermeasures were restricted to unilat-
eral measures by injured states, narrowly defined, with no room for
the law in this area to evolve. This might give the appearance that
states had abdicated their right of individual action in respect of
obligations owed to the international community as a whole, with
the effect that such obligations, or others in the collective interest,
would be seen as somehow second class in relation to bilateral treaty
obligations.190 On the other hand, given that state practice supporting
the inclusion of the provision remained at an embryonic phase of
development, the draft provision was too controversial to survive.191
Ultimately, acknowledging that there is no clearly recognized entitle-
ment of states referred to in Article 48 to take countermeasures in the

187
For the text see Report of the Drafting Committee, UN Doc. A/CN.4/L.600, 15 (Draft Art.
54). See further Crawford, Third Report, 105–6; Sicilianos (2010), 1143–4.
188 189 190
Crawford, Fourth Report, 15. Ibid., 18. Ibid.
191
See ILC Ybk 2001/II(2), 23.
706 the implementation of responsibility

collective interest,192 the ILC replaced the draft provision with a

saving clause in the following terms:
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 meas-
ures 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.193

Thus the articles in their final form do not regulate countermeasures

by states other than an injured state. Article 54 has been described as
being ‘of an ambiguity worthy of the oracle at Delphi’ in that it leaves all
options open.194 It is a compromise intended to reserve the position and
leave the resolution of the matter to further developments in inter-
national law and practice.195
One of the general objections that led to the deletion of Draft Article 54
on collective countermeasures was that it did not sufficiently explain the
link between the actions covered by that provision and sanctions taken
under the UN Charter or regional arrangements.196 The question thus
becomes the role of these sanctions in the implementation of state
responsibility.

21.3 Issues of responsibility in the Security Council and other

international forums
All the categories of self-help measures discussed in this chapter share an
emphasis on unilateral action; that is, they are taken by states acting
alone (or alongside other like-minded states) to seek protection or per-
formance of international legal rights and obligations.197 The measures
are adopted as a consequence of the view of the reacting state that the
target state has committed an internationally wrongful act.198
But the most important means of dealing with major international
crises and disputes do not fall within the scope of the secondary rules on
192
ARSIWA Commentary, Art. 54, §6; see also Art. 22, §6; Pt III, Ch. II, §8.
193
Institutional reactions in the framework of international organizations are excluded
from the scope of this provision; see ARSIWA Commentary, Art. 54, §2.
194 195
Sicilianos (2010), 1144. Crawford, Peel and Olleson (2001), 980–2.
196
Crawford, Fourth Report, 18. See further Dawidowicz (2006); Sicilianos (2010), 1140–2;
Gowlland-Debbas (2010).
197
See Zemanek (1987); Alland (2010), 1129.
198
See US–France Air Services Agreement, (1978) 54 ILR 303, 337; Leben, (1982) 28 AFDI 9, 21–
4; Alland (2010), 1129.
 implementation by extrajudicial process 707

state responsibility. States have the option of placing their disputes in

the hands of certain international organizations, with a view to
obtaining authorization of institutional measures or sanctions against
the responsible state or states. The ILC chose to exclude such sanctions
from the scope of the ARSIWA,199 rejecting Special Rapporteur Ago’s
formulation ‘the legitimate application of a sanction’ in favour of reserv-
ing that term for decisions of international organizations, especially of
the UN.200 As Alland explains,
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 . . . [I]t is often the
case that measures decided by an international organization escape the subject-
ivity 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.201

In other words, institutional sanctions create ‘vertical’ relationships of

enforcement, whereas in the case of decentralized countermeasures
the relationships between the responsible and reacting states are
horizontal.202
The UN is the foremost example of an international organization with
authority to impose sanctions.203 In the context of the UN the notion of
sanctions has come to be synonymous with Charter mechanisms for
maintaining peace, rather than being limited to addressing non-
compliance with pre-existing obligations so as to restore legality.204
Under Article 24 of the UN Charter, the Security Council is entrusted
with primary responsibility for the maintenance of international peace
and security, and it has special powers to enable it to carry out that
function. In particular, Chapter VII provides that once the Council has
determined the existence of a threat to the peace, breach of the peace, or
act of aggression in terms of Article 39, it has the authority to impose
provisional measures (Article 40) or to take non-forcible (Article 41) or
199
See ARSIWA Commentary, Art. 54, §2. The Articles are without prejudice to any
question of the responsibility of international organizations and to the UN Charter
(ARSIWA, Arts. 57 and 59, respectively). Note, however, that action duly taken as
between the parties to regional arrangements would be covered by either Art. 20
(consent) or Art. 55 (lex specialis).
200
See Leben (1982), 17; Lesaffre (2010), 472; see further ICL Ybk 1979/I, 54–63.
201 202
Alland (2010), 1135. Sicilianos (2010), 1140.
203
On Security Council sanctions generally, see Gowlland-Debbas (2010); Pellet and Miron,
‘Sanctions’, (2011) MPEPIL.
204
Gowlland-Debbas (2010), 126–8.
708 the implementation of responsibility

forcible (Article 42) measures for the maintenance or restoration of

international peace and security. The decisions of the Security Council
have binding force on members of the UN by virtue of Article 25.
In the decades since 1945 the Security Council has used its powers to
impose provisional, peaceful and forcible measures on states in
response to a wide variety of wrongful acts.205 Early examples ranged
from authorizing the use of force to repel the armed attack on South
Korea by North Korea in 1950,206 to imposing trade embargoes against
Rhodesia (now Zimbabwe) after its unilateral declaration of independ-
ence from the UK in 1965 in order to establish white minority rule,207
to (belatedly) demanding a ceasefire in the 1980–8 conflict between
Iraq and Iran in express reliance on Article 40.208 It even used Chapter
VII as the source of authority for establishing the UN Compensation
Commission to compel Iraq to comply with its obligations of repar-
ation following the invasion of Kuwait in August 1990.209 Since the end
of the deadlock produced by the Cold War, Security Council action
under Chapter VII has increased,210 with examples including arms
embargoes in response to illegal seizures of power in Haiti211 and
Sierra Leone,212 sanctions aimed at preventing the proliferation of
nuclear weapons,213 and the authorization of the use of force for

205
It should be noted, however, that most measures taken by the Security Council under
Chapter VII are a response to an Art. 39 determination that there has been a threat to
the peace; this is an increasingly flexible and elastic notion. In some cases the Council’s
response to the threat will aim to prevent unlawful acts from occurring, rather than
trying to implement state responsibility and restore legality as is the object of individual
countermeasures. See Pellet and Miron (2011), §§21–5.
206
SC Res. 82 (1950), which was only made possible because the USSR, which would have
exercised its power of veto, was absent from the Security Council during voting (in
protest at the representation of China in the UN by the government of the Republic of
China (Taiwan)).
207
E.g. SC Res. 232 (1966); SC Res. 253 (1968); SC Res. 314 (1972); SC Res. 409 (1977).
208
SC Res. 598 (1987).
209
See Petrovic´, in Crawford, Pellet and Olleson (2010) 849. Other Chapter VII measures
taken by the Security Council against Iraq in response to the invasion included a
demand, in reliance on Art. 40, that Iraq withdraw (SC Res. 660 (1990)), the imposition
of economic sanctions (SC Res. 661 (1990)) and the authorization of force to uphold SC
Res. 660 (SC Res. 678 (1990)).
210
See Gray (2008), 264–72; Carisch and Rickard-Martin, ‘Global threats and the role of
United Nations sanctions’ (2011), available at library.fes.de/pdf-files/iez/08819.pdf, esp.
the table of UN Security Council sanctions from 1990–2011 at 10.
211
SC Res. 841 (1993); SC Res. 861 (1993); SC Res. 873 (1993); SC Res. 875 (1993); see also SC
Res. 944 (1994), which terminated the sanctions.
212
SC Res. 1132 (1997); SC Res. 1171 (1998).
213
Against North Korea: SC Res. 1718 (2006). Against Iran: SC Res. 1737 (2006).
 implementation by extrajudicial process 709

humanitarian purposes in the context of human rights violations

inflicted by Libya on its own nationals.214
The Charter does not refer to the principles that constrain resort to
unilateral self-help measures as a check on the Council’s collective secur-
ity activities.215 Nonetheless, it is accepted that the Council’s discretion
in imposing sanctions is not absolute; it will be limited by certain of the
same principles, for example the importance of avoiding collateral inflic-
tion of suffering on vulnerable groups within the targeted state.216
Efforts are being made to improve the sanctions system to address
concerns in this and other respects.217 Meanwhile, the relationship
between Security Council sanctions such as the examples above and
the right of states to take countermeasures, particularly collectively,
remains unclear. The jurisdiction ratione materiae of the Council is
limited, and its ability to respond to wrongful acts efficiently and effect-
ively is frequently hampered by political disagreement and by the threat
or use of the veto by one of the five permanent members. It is precisely in
situations when the Security Council fails to act or its actions are ineffect-
ive in enforcing serious illegalities, such as the large-scale human rights
violations in Rwanda, Sudan, Syria and so on, that the demand for a right
of collective action by states is strongest.218 It would seem that the
triggering of Chapter VII action must end any power of states not directly
injured to react as they choose at the individual level, but the commen-
tary to ARSIWA Article 59 (which provides that ARSIWA are without
prejudice to the UN Charter) is not explicit on the point, ‘allowing ambi-
guities between the institutional and the individual to linger’.219
While the Council’s responsibility for the maintenance of inter-
national peace and security is ‘primary’, it is not exclusive. The General
Assembly may also be required to take steps for the maintenance of
international peace and security, for example in situations where the
Security Council is prevented by the veto from acting, or has otherwise
been ineffective.220 In keeping with the established prohibition of

214 215
E.g. in Libya: SC Res. 1973 (2011), §4. See Gowlland-Debbas (2010), 134–7.
216
See Crawford, Third Report, 92, referring to Committee on Economic, Social and
Cultural Rights, General Comment No. 8, UN Doc. E/C.12/1997/8.
217
See Gray (2008), 270–2; Pellet and Miron (2011), §§26–54.
218
Dawidowicz (2006), 335.
219
Sicilianos (2010), 1142. On the safeguard clause in Art. 59 see further Gowlland-Debbas
(2010), 117–22.
220
See UN Charter, Art. 14; Uniting for Peace Resolution, GA Res. 377(V), 3 November 1950;
Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), ICJ Rep. 1962
p. 151, 162–5.
710 the implementation of responsibility

forcible countermeasures by individual states, however, sanctions

involving the use of force can only be adopted by the Security Council,
acting in pursuance of its Chapter VII powers.221
Under Article 52 of the Charter, the powers of the Security Council do
not preclude the existence of regional arrangements or agencies for
dealing with region-specific peace and security matters. Thus, for
example, the European Union and the African Union have their own
autonomous systems for imposing sanctions against wrongdoing
states.222 In addition, these and other regional and subregional economic
communities such as the Economic Community of West African States
(ECOWAS), the Organization of American States (OAS), the League of
Arab States and the Association of Southeast Asian Nations (ASEAN),
may co-operate with the UN in securing the effective implementation
of sanctions in their regions. The legitimacy and credibility of the action
in Libya, for example, was greatly boosted by the support of the Arab
League, and the role of the African Union’s High-Level Implementation
Panel was a significant factor in the adoption of SC Resolution 2046 (2012)
addressing the conflict between Sudan and South Sudan. However, the
willingness within some regions to co-operate with UN sanctions may be
dampened by the outdated imbalance of regional power that persists in
the structure of the Security Council, with its over-representation of
European and Western states compared with other regions.223
In a different category again, another major international forum for
disputes concerning state responsibility is the Dispute Settlement Body
of the WTO. The WTO dispute settlement system is widely perceived
as operating as a lex specialis outside the scope of the secondary rules
in the ARSIWA.224 This is not to say that the entire WTO system is a

221
See generally e.g. Sarooshi (1999); Gray (2008), 254–369; Orakhelashvili (2011).
222
For the European system see the Common Foreign and Security Policy (CFSP) set out in
the Treaty on European Union, 24 December 2002, [2002] OJ C325/5, Art. 11. The
African system is a pragmatic one largely focused on sanctions on ‘unconstitutional
changes of government’: see the Declaration on the Framework for an OAU Response to
Unconstitutional Changes of Government (Lomé Declaration), OAU Doc. AHG/Decl.5
(XXXVI) (2000); Constitutive Act of the African Union, 11 July 2000, 2158 UNTS 3, Arts.
4(p), 30; Protocol Relating to the Establishment of the Peace and Security Council of the
African Union, 9 July 2002, available at www.unhcr.org/refworld/docid/3f4b1d374.
html, Art. 7(1)(g); African Charter on Democracy, Elections and Governance, AU Doc.
Assembly/AU/Dec. 147 (VIII) (2007), Ch. 8.
223
See Carisch and Rickard-Martin (2011), 19–21.
224
ARSIWA Commentary, Art. 55, §3. See further Pauwelyn, Conflict of Norms in Public
International Law: How WTO Law Relates to Other Rules of International Law (2003),385–416;
Gomula (2010); Simma and Pulkowski (2010), 155–8.
 implementation by extrajudicial process 711

‘self-contained regime’; it is a part of public international law and thus

the ARSIWA have relevance for the resolution of issues of state responsi-
bility arising in the context of WTO disputes – subject to the specificities
of the WTO dispute settlement process.225 One of the cornerstones of
GATT and WTO dispute resolution is that recourse to individual counter-
measures alongside or instead of the WTO system in order to resolve
disputes in respect of WTO rights and obligations is not permitted.226
This obligation has been confirmed in a number of decisions of the
Dispute Settlement Body.227 Nonetheless, sanctions pursuant to Article
22 of the Dispute Settlement Understanding (also called retaliation or
suspension of concessions) function in a similar manner to countermeas-
ures,228 and the SCM Agreement specifically uses the term ‘countermeas-
ures’ in providing for member states to respond to prohibited or
actionable subsidies. Panels and the Appellate Body have been guided
and inspired by the rules governing countermeasures within the law on
state responsibility in their decisions.229

225
See Gomula (2010), 791–3.
226
See García-Rubio, On the Application of Customary Rules of State Responsibility by the WTO
Dispute Settlement Organs (2001), 54.
227
See the discussion by Gomula (2010), 799–801.
228
Although technically they are perhaps better construed as a variant of the exceptio non
adimpleti contractus; see Simma and Pulkowski (2010), 156.
229
See further Mavroidis, (2000) 11 EJIL 763; Pauwelyn, (2000) 94 AJIL 335; Charnovitz,
(2001) 95 AJIL 792; Desmedt, (2001) 4 JIEL 441.
Appendix 1 ILC Articles on the
Responsibility of States for
Internationally Wrongful
Acts (2001)

part one the internationally wrongful act of a state

chapter i general principles
Article 1 Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international responsi-
bility 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.

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 characteriza-
tion 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.

712
 arsiwa (2001) 713

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
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.

Article 7 Excess of authority or contravention of instructions

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.

Article 8 Conduct directed or controlled by a State

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.

Article 9 Conduct carried out in the absence or default of the official authorities
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 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 govern-
ment 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.
714 appendix 1

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
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, regard-
less of its origin or character.

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.

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 con-
tinues 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 omis-
sion 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.

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
A State which aids or assists another State in the commission of an internation-
ally wrongful act by the latter is internationally responsible for doing so if:
 arsiwa (2001) 715

(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 17 Direction and control exercised over the commission of

an internationally wrongful act
A State which directs and controls another State in the commission of an inter-
nationally 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.

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 self-defence 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.
716 appendix 1

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.

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.
2. Paragraph 1 does not apply if:

(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 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 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.
 arsiwa (2001) 717

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

chapter i general principles
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 conse-
quences 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.

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) To offer appropriate assurances and guarantees of non-repetition, if
circumstances so require.

Article 31 Reparation
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 inter-
nationally wrongful act of a State.

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,
718 appendix 1

depending in particular on the character and content of the international obliga-

tion 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 compensate for the damage caused thereby, insofar as such damage is not
made good by restitution.
2. The compensation shall cover any financially assessable damage including loss
of 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.
 arsiwa (2001) 719

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.

chapter iii serious breaches of obligations under peremptory

norms of general international law
Article 40 Application of this chapter
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.
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 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 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 the obligation:
(i) Specifically 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.
720 appendix 1

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

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.

Article 45 Loss of the right to invoke responsibility

The responsibility of a State may not be invoked if:

(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.

Article 46 Plurality of injured States

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 internationally wrongful act.

Article 47 Plurality of responsible States

1. Where several States are responsible for the same internationally wrongful act,
the responsibility of each State may be invoked in relation to that act.
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 respon-
sible 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 State in accordance with paragraph 2 if:
 arsiwa (2001) 721

(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.
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 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 respon-
sible 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

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) 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.
722 appendix 1

Article 51 Proportionality
Countermeasures must be commensurate with the injury suffered, taking into
account the gravity of the internationally wrongful act and the rights in
question.

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 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.

Article 53 Termination of countermeasures

Countermeasures shall be terminated as soon as the responsible State has com-
plied 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 meas-
ures 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.

part four general provisions

Article 55 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 inter-
national law.
 arsiwa (2001) 723

Article 56 Questions of State responsibility not regulated by these articles

The applicable rules of international law continue to govern questions concern-
ing 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 responsi-
bility 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 2 General Assembly resolutions
concerning the Articles on
State Responsibility for
Internationally Wrongful Acts

1. general assembly resolution 56/83, 12 december 2001

resolution adopted by the general assembly
[on the report of the Sixth Committee, UN Doc. A/56/589 & Corr.1]
56/83. responsibility of states for internationally wrongful acts

The General Assembly,

Having considered chapter IV of the report of the International Law Commission
on the work of its fifty-third session,1 which contains the draft articles on
responsibility of States for internationally wrongful acts,
Noting that the International Law Commission decided to recommend to the
General Assembly that it should take note of the draft articles on responsibility of
States for internationally wrongful acts in a resolution and annex the draft
articles to that resolution, and that it should consider at a later stage, 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,2
Emphasizing the continuing importance of the codification and progressive
development of international law, as referred to in Article 13, paragraph 1(a),
of the Charter of the United Nations,
Noting that the subject of responsibility of States for internationally wrongful
acts is of major importance in the relations of States,
1. Welcomes the conclusion of the work of the International Law Commission on
responsibility of States for internationally wrongful acts and its adoption of the
draft articles and a detailed commentary on the subject;

1
Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 and corrigendum
(A/56/10 and Corr.1).
2
Ibid., paras. 72 and 73.

724
 general assembly resolutions 725

2. Expresses its appreciation to the International Law Commission for its continuing
contribution to the codification and progressive development of international
law;
3. Takes note of the articles on responsibility of States for internationally wrongful
acts, presented by the International Law Commission, the text of which is
annexed to the present resolution, and commends them to the attention of
Governments without prejudice to the question of their future adoption or other
appropriate action;
4. Decides to include in the provisional agenda of its fifty-ninth session an item
entitled ‘Responsibility of States for internationally wrongful acts’.
85th plenary meeting
12 December 2001
Annex: Articles on the Responsibility of States for Internationally Wrongful
Acts

2. general assembly resolution 59/35, 2 december 2004

resolution adopted by the general assembly
[on the report of the Sixth Committee, UN Doc. A/59/505]
59/35. responsibility of states for internationally wrongful acts

The General Assembly,

Recalling its resolution 56/83 of 12 December 2001, the annex to which contains
the text of the articles on responsibility of States for internationally wrongful acts,
Emphasizing the continuing importance of the codification and progressive
development of international law, as referred to in Article 13, paragraph 1(a),
of the Charter of the United Nations,
Noting that the subject of responsibility of States for internationally wrongful
acts is of major importance in relations between States,
1. Commends once again the articles on responsibility of States for internationally
wrongful acts to the attention of Governments, without prejudice to the question
of their future adoption or other appropriate action;
2. Requests the Secretary-General to invite Governments to submit their written
comments on any future action regarding the articles;
3. Also requests the Secretary-General to prepare an initial compilation of decisions
of international courts, tribunals and other bodies referring to the articles and to
invite Governments to submit information on their practice in this regard, and
further requests the Secretary-General to submit this material well in advance of
its sixty-second session;
726 appendix 2

4. Decides to include in the provisional agenda of its sixty-second session the item
entitled ‘Responsibility of States for internationally wrongful acts’.
65th plenary meeting
2 December 2004

3. general assembly resolution 62/61, 6 december 2007

resolution adopted by the general assembly
[on the report of the Sixth Committee, UN Doc. A/62/446]
62/61. responsibility of states for internationally wrongful acts

The General Assembly,

Recalling its resolution 56/83 of 12 December 2001, the annex to which contains
the text of the articles on responsibility of States for internationally wrongful
acts, and further recalling its resolution 59/35 of 2 December 2004 commending
the articles to the attention of Governments,
Emphasizing the continuing importance of the codification and progressive
development of international law, as referred to in Article 13, paragraph 1(a),
of the Charter of the United Nations,
Noting that the subject of responsibility of States for internationally wrongful
acts is of major importance in relations between States,
Noting with appreciation the compilation of decisions of international courts, tribu-
nals and other bodies referring to the articles, prepared by the Secretary-General,3
1. Commends once again the articles on responsibility of States for internationally
wrongful acts, to the attention of Governments, without prejudice to the ques-
tion of their future adoption or other appropriate action;
2. Requests the Secretary-General to invite Governments to submit their written
comments on any future action regarding the articles;
3. Also requests the Secretary-General to update the compilation of decisions of
international courts, tribunals and other bodies referring to the articles and to
invite Governments to submit information on their practice in this regard, and
further requests the Secretary-General to submit this material well in advance of
its sixty-fifth session;
4. Decides to include in the provisional agenda of its sixty-fifth session the item
entitled ‘Responsibility of States for internationally wrongful acts’ and to further
examine, within the framework of a working group of the Sixth Committee, the
question of a convention on responsibility of States for internationally wrongful
acts or other appropriate action on the basis of the articles.
62nd plenary meeting
6 December 2007

3
UN Doc. A/62/62 and Corr.1 and Add.1.
 general assembly resolutions 727

4. general assembly resolution 65/19, 6 december 2010

resolution adopted by the general assembly
[on the report of the Sixth Committee, UN Doc. A/65/463]
65/19. responsibility of states for internationally wrongful acts

The General Assembly,

Recalling its resolution 56/83 of 12 December 2001, the annex to which contains
the text of the articles on responsibility of States for internationally wrongful
acts, and its resolutions 59/35 of 2 December 2004 and 62/61 of 6 December 2007
commending the articles to the attention of Governments,
Emphasizing the continuing importance of the codification and progressive
development of international law, as referred to in Article 13, paragraph 1 (a),
of the Charter of the United Nations,
Noting that the subject of responsibility of States for internationally wrongful
acts is of major importance in relations between States,
Taking into account the comments and observations of Governments4 and the
discussions held in the Sixth Committee, at the fifty-sixth, fifty-ninth, sixty-
second and sixty-fifth sessions of the General Assembly, on responsibility of
States for internationally wrongful acts,
Noting with appreciation the compilation of decisions of international courts, tribu-
nals and other bodies referring to the articles, prepared by the Secretary-General,5
1. Acknowledges the importance of the articles on responsibility of States for
internationally wrongful acts, and commends them once again to the attention
of Governments, without prejudice to the question of their future adoption or
other appropriate action;
2. Requests the Secretary-General to invite Governments to submit further written
comments on any future action regarding the articles;
3. Also requests the Secretary-General to update the compilation of decisions of
international courts, tribunals and other bodies referring to the articles and to
invite Governments to submit information on their practice in this regard, and
further requests the Secretary-General to submit this material well in advance of
its sixty-eighth session;
4. Decides to include in the provisional agenda of its sixty-eighth session the item
entitled ‘Responsibility of States for internationally wrongful acts’ and to further
examine, within the framework of a working group of the Sixth Committee and with
a view to taking a decision, the question of a convention on responsibility of States for
internationally wrongful acts or other appropriate action on the basis of the articles.
57th plenary meeting
6 December 2010

4
See UN Doc. A/62/63 and Add.1; UN Doc. A/65/96 and Add.1
5
See UN Doc. A/62/62 and Corr.1 and Add.1; UN Doc. A/65/76.
Appendix 3 ILC Draft 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

chapter i general principles
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 accord-
ance with the law of that State, by birth, descent, naturalization, succession of
States or in any other manner, not inconsistent with international law.

728
 draft articles on diplomatic protection (2006) 729

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.

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 national-
ity 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.
730 appendix 3

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 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.

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.
 draft articles on diplomatic protection (2006) 731

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 protec-
tion to secure redress for injury suffered as a result of an internationally wrong-
ful 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 protec-
tion 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
732 appendix 3

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:

(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 ILC Draft Articles on State
Responsibility (as proposed by
F. V. García-Amador, 1961)1

Revised draft on international responsibility of the State for injuries caused

in its territory to the person or property of aliens

title i general principles

chapter i rights of aliens and constituent elements of
responsibility
Article 1 Rights of aliens
1. For the purpose of the application of the provisions of this draft, aliens enjoy
the same rights and the same legal guarantees as nationals, but these rights and
guarantees shall in no case be less than the ‘human rights and fundamental
freedoms’ recognized and defined in contemporary international instruments.
2. The ‘human rights and fundamental freedoms’ referred to in the foregoing
paragraph are those enumerated below:

(a) The right to life, liberty and security of person;

(b) The right to own property;
(c) The right to apply to the courts of justice or to the competent organs
of the State, by means of remedies and proceedings which offer
adequate and effective redress for violations of the aforesaid rights and
freedoms;
(d) The right to a public hearing, with proper safeguards, by the competent
organs of the State, in the substantiation of any criminal charge or in
the determination of rights and obligations under civil law;
(e) In criminal matters, the right of the accused to be presumed innocent
until proved guilty; the right to be informed of the charge made against
him in a language which he understands; the right to present his
defence personally or to be defended by a counsel of his choice; the

1
ILC Ybk 1961/II, 46.

733
734 appendix 4

right not to be convicted of any punishable offence on account of any

act or omission which did not constitute an offence, under national or
international law, at the time when it was committed; the right to be
tried without delay or to be released.

3. The enjoyment and exercise of the rights and freedoms specified in paragraph
2 (a) and (b) are subject to such limitations or restrictions as the law expressly
prescribes for reasons of internal security, the economic well-being of the nation,
public order, health and morality, or to secure respect for the rights and free-
doms of others.

Article 2 Constituent elements of responsibility

1. For the purposes of this draft, the ‘international responsibility of the State for
injuries caused in its territory to the person or property of aliens’ involves the
duty to make reparation for such injuries, if these are the consequence of some
act or omission on the part of its organs or officials which contravenes the
international obligations of the State.
2. The expression ‘international obligations of the State’ shall be construed to
mean, as specified in the relevant provisions of this draft, the obligations
resulting from any of the sources of international law.
3. The expression ‘international obligations of the State’ also includes the prohib-
ition of the ‘abuse of rights’, which shall be construed to mean any action
contravening the rules of international law, whether conventional or general,
which govern the exercise of the rights and competence of the State.
The State may not plead any provisions of its municipal law for the purpose of
repudiating the responsibility which arises out of the breach or non-observance
of an international obligation.

title ii acts and omissions giving rise to responsibility

chapter ii denial of justice and other similar acts and omissions
Article 3 Acts and omissions involving denial of justice
1. The State is responsible for the injuries caused to an alien by acts or omissions
which involve a denial of justice.
2. For the purposes of the foregoing paragraph, a ‘denial of justice’ shall be
deemed to occur if the courts deprive the alien of any one of the rights or
safeguards specified in article 1, paragraph 2 (c), (d) and (e), of this draft.
3. For the same purposes, a ‘denial of justice’ shall also be deemed to occur if a
manifestly unjust decision is rendered with the evident intention of causing
injury to the alien. However, judicial error, whatever the result of the decision,
does not give rise to international responsibility on the part of the State.
 draft articles on state responsibility (1961) 735

4. Likewise, the alien shall be deemed to have suffered a denial of justice

if a decision by a municipal or international court in his favour is not
carried out, provided that the failure to carry out such decision is due to a
clear intention to cause him injury.

Article 4 Deprivation of liberty

1. The State is responsible for the injuries caused to an alien by reason of his
arrest, detention or imprisonment, if carried out on grounds not provided for in
the municipal law or in a manner manifestly incompatible with the procedure
established for the purpose by municipal law.
2. Notwithstanding the provisions of the foregoing paragraph, the international
responsibility of the State shall not be involved in cases where the detention
order was based on bonafide suspicion, if, when the error was noticed, the alien
was released.

Article 5 Expulsion and other forms of interference with freedom of movement

1. The State is responsible for the injuries caused to an alien who has been
expelled from the country, if the expulsion order was not based on grounds
specified in municipal law or if, in the execution of the order, serious irregular-
ities were committed in the procedure established by municipal law.
2. The State is also responsible for the injuries caused to an alien in cases where he
was prevented from leaving the country or from moving freely within the country,
if the act or omission of the authorities is manifestly arbitrary or unjustified.

Article 6 Maltreatment and other acts of injury to the person

Maltreatment and other acts of inhumanity committed by the authorities against
the person of an alien shall constitute an aggravating circumstance for the
purposes of an international claim under article 22, paragraph 2, of this draft.

chapter iii negligence and other acts and omissions in connexion

with the protection of aliens
Article 7 Negligence in the performance of the duty of protection
1. The State is responsible for the injuries caused to an alien by illegal acts of
individuals, whether isolated or committed in the course of internal disturbances
(riots, mob violence or civil war), if the authorities were manifestly negligent in
taking the measures which, in view of the circumstances, are normally taken to
prevent the commission of such acts.
2. The circumstances mentioned in the foregoing paragraph shall include, in
particular, the extent to which the injurious act could have been foreseen and the
physical possibility of preventing its commission with resources available to the
State.
736 appendix 4

3. The State is also responsible if the inexcusable negligence of the authorities in

apprehending the individuals who committed the injurious act deprives the alien
of the opportunity to bring a claim against the said individuals for compensation
for the loss or injury or if he is deprived of such opportunity by virtue of a general
or specific amnesty.

Article 8 Other acts and omissions in connexion with the obligation

to protect aliens
1. In the cases of responsibility referred to in the preceding article, the conniv-
ance, complicity or participation of the authorities in the injurious act of the
individual shall constitute an aggravating circumstance for the purposes of an
international claim under article 22, paragraph 2, of this draft.
2. Independently of the existence of any of the circumstances referred to in the
foregoing paragraph, the State is likewise responsible, for the purpose aforesaid,
if the authorities were manifestly and inexcusably negligent in the prosecution,
trial and punishment of the persons guilty of the injurious act.

chapter iv measures affecting acquired rights

Article 9 Measures of expropriation and nationalization
1. The State is responsible if it expropriates property of an alien and the expropri-
ation is not in conformity with the provisions of the municipal law in force at the
time when the property in question was acquired by the owner concerned.
2. In the case of nationalization or expropriation measures which are of a general
nature and which are not directed against a particular person or against particu-
lar persons, the State is responsible if the measures are not taken on grounds of
public interest, if they involve discrimination between nationals and aliens to the
detriment of the latter in the matter of compensation for the property in ques-
tion, or if unjustified irregularities which are prejudicial to aliens are committed
in the interpretation or application of the said measures.

Article 10 Non-performance of contractual obligations in general

1. The State is responsible for the non-performance of obligations stipulated in a
contract entered into with an alien or in a concession granted to him, if the non-
performance is not justified on grounds of public interest or of the economic
necessity of the State, or if there is imputable to the State a ‘denial of justice’
within the meaning of article 3 of this draft.
2. The foregoing provision shall not apply if the contract or concession contains a
clause of the nature described in article 19, paragraph 2.
3. If the contract or concession is governed by international law, or by legal
principles of an international character, the State is responsible by reason of the
 draft articles on state responsibility (1961) 737

mere fact of the non-performance of the obligations stipulated in the said

contract or concession.

Article 11 Public debts

The State is responsible if it repudiates or cancels its public debts, if the measure
is not justified on grounds of public interest or if it discriminates between
nationals and aliens to the detriment of the latter.

chapter v imputability of acts or omissions

Article 12 Acts and omissions of organs and officials in general
1. An act or omission which contravenes international law is imputable to the
State if the organs or officials concerned acted within the limits of their
competence.
2. An act or omission shall likewise be imputable to the State if the organs or
officials concerned exceeded their competence but purported to be acting in their
official capacity.
3. Notwithstanding the provisions of the foregoing paragraph, the act or omis-
sion shall not be imputable to the State if the act exceeding the competence of
the officials or organs concerned was by its nature totally outside the scope
of their functions and powers, even though they may to some extent have
relied on their official position or used the means at their disposal by reason of
that position.
4. Similarly, the act or omission shall not be imputable to the State if it was so
manifestly outside the competence of the organ or official concerned that the
alien should have been aware of the fact and could, in consequence, have avoided
the injury.
5. For the purposes of the provisions of this article, the act or omission shall
be proved in conformity with the municipal law of the State to which it is
imputed.

Article 13 Acts and omissions of the legislature

1. The provisions of the preceding article shall apply, mutatis mutandis, to the
imputability of any legislative (or, as the case may be, constitutional) measures
which are incompatible with international law and to the failure to adopt the
measures which are necessary for the performance of the international obliga-
tions of the State.
2. Notwithstanding the provisions of the foregoing paragraph, the act or omis-
sion shall not be imputable to the State if, without amending its legislation (or its
constitution), the State can avoid the injury or make reparation therefor and if it
does so in due time.
738 appendix 4

Article 14 Acts and omissions of political subdivisions

1. The acts and omissions of political subdivisions, whatever their internal
organization may be and whatever degree of legislative, judicial or administra-
tive autonomy they enjoy, shall be imputable to the State.
2. The imputability of acts or omissions of political subdivisions shall be deter-
mined in conformity with the provisions of the two preceding articles.

Article 15 Acts and omissions of a third State or of an international

organization
Acts and omissions of a third State or of an international organization shall be
imputable to the State in whose territory they were committed only if the latter
could have avoided the injurious act and did not exercise such diligence as was
possible in the circumstances.

Article 16 Acts and omissions of successful insurgents

The imputability of acts and omissions committed by insurgents during the
conflict shall, if the insurrection is successful and a new government is installed,
be determined in conformity with the provisions of articles 7 and 8 of this draft.

Article 17 Exonerating and extenuating circumstances

1. An act or omission shall not be imputable to the State if it is the consequence of
force majeure which makes it impossible for the State to perform the international
obligation in question and which was not the consequence of an act or omission
of its own organs or officials.
2. Likewise, an act shall not be imputable to the State if it is the consequence of a
state of necessity involving a grave and imminent peril threatening some vital
interest of the State, provided that the State did not provoke that peril and was
unable to counteract it by other means and so to prevent the injury.
3. Similarly, the act or omission shall not be imputable to the State if it was
provoked by some fault on the part of the injured alien himself.
4. Force majeure, state of necessity and the fault imputable to the alien, if not admis-
sible as grounds for exoneration from responsibility, shall operate as extenuating
circumstances for the purposes mentioned in article 26, paragraph 4, of this draft.

title iii the international claim and the reparation of the injury
chapter vi admissibility of claims
Article 18 Exhaustion of local remedies
1. An international claim brought for the purpose of obtaining reparation for
injuries sustained by an alien, or for the purposes mentioned in article 27 of this
draft, shall not be admissible until, in respect of each one of the grounds of the
 draft articles on state responsibility (1961) 739

said claim, all the remedies and proceedings established by municipal law have
been exhausted.
2. For the purposes of the provisions of the foregoing paragraph, local remedies
shall be deemed to have been ‘exhausted’ when the decision of the competent
body or official that rendered it is final and without appeal.
3. Consequently, except in the cases of ‘denial of justice’ referred to in article 3 of
this draft, it shall not be admissible to plead, as an excuse for the failure to resort
to all or any of the remedies under municipal law, that the organ or official
concerned is not competent to deal with the case and to adjudicate the same or
that it is useless to apply to the municipal courts on the alleged grounds that for
technical or other reasons such remedies are ineffective.
4. The foregoing provisions shall not apply if the respondent State has expressly
agreed with the State of nationality of the injured alien that recourse to any one
or to all of the local remedies shall not be necessary.
5. If the respondent State and the alien have entered into an agreement of the
nature of those mentioned in article 21 of this draft, the rule concerning the
exhaustion of local remedies shall likewise not be applicable, unless the said
agreement expressly lays down the observance of the said rule as a condition to
be fulfilled before an international claim can be brought.

Article 19 Waiver of diplomatic protection

1. Notwithstanding the provisions of the preceding article, if the States con-
cerned have agreed to restrict the exercise of diplomatic protection for their
respective nationals, an international claim shall not be admissible except in the
cases and circumstances specified in the said agreement.
2. Similarly, in the case of the non-performance of obligations stipulated in a
contract or concession, the international claim shall not be admissible if the alien
concerned has waived the diplomatic protection of the State of his nationality
and the circumstances are in conformity with the terms of the waiver.
3. An international claim shall likewise not be admissible if the alien concerned
has spontaneously reached a settlement or arrangement with the local author-
ities concerning the reparation of the injury sustained by him.
4. The waiver of diplomatic protection and the settlements or arrangements
reached by the alien with the local authorities shall not deprive the State of
nationality of the right to bring an international claim in the circumstances and
for the purposes described in article 22, paragraph 2, and article 27 of this draft.

Article 20 Settlement of questions relating to the admissibility of claims

Disputes between the respondent State and the alien, or, as the case may be,
between that State and the State of nationality, regarding any of the aspects
relating to the admissibility of the international claim shall be submitted to the
740 appendix 4

methods of settlement provided for in articles 21 and 22 in the form of a

preliminary question and settled by means of a summary procedure.

chapter vii submission of the international claim

Article 21 Right of the injured alien to bring a claim
1. The alien may submit an international claim to obtain reparation for
the injury sustained by him to the body in which competence for this
purpose has been vested by an agreement between the respondent State
and the State of nationality or between the respondent State and the alien
himself.
2. If the body mentioned in the foregoing paragraph was established by an
agreement between the respondent State and the alien, the consent of the State
of nationality shall not be necessary for the purpose of the submission of the
international claim.
3. In the event of the death of the alien, the right to bring a claim may be
exercised by his heirs or successors in title, unless they possessed or have
acquired the nationality of the respondent State.
4. The right to bring claims to which this article refers shall not be exercisable by
foreign juristic persons in which nationals of the respondent State hold the
controlling interest.

Article 22 Right of the State of nationality to bring a claim

1. The State of nationality may bring the international claim to obtain reparation
for the injury sustained by the alien:

(a) If there does not exist an agreement of the type referred to in article 21,
paragraph 1; or
(b) If the respondent State has expressly agreed that the State of
nationality should substitute itself for the alien in his place and title
for the purposes of the claim.

2. The State of nationality may, in addition, bring an international claim in the

case and for the purposes mentioned in article 27 of this draft, irrespective of any
agreement entered into by the injured alien with the respondent State.

Article 23 Nationality of the claim

1. A State may exercise the right to bring a claim referred to in article 22 on
condition that the alien possessed its nationality at the time of sustaining the
injury and conserves that nationality until the claim is adjudicated.
2. In the event of the death of the alien, the exercise of the right of the State to
bring a claim shall be subject to the same conditions.
 draft articles on state responsibility (1961) 741

3. A State may not bring a claim on behalf of an individual if the legal bond of
nationality is not based on a genuine connexion between the two.
4. A State may likewise not bring a claim on behalf of foreign juristic persons in
which nationals of the respondent State hold the controlling interest.
5. 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 and other links.

Article 24 Inadmissible restrictions of the right to claim

1. The right of the State of nationality to bring a claim shall not be affected by an
agreement between the respondent State and the alien if the latter’s consent is
vitiated by duress or any other form of coercion exerted upon him by the
authorities of the respondent State.
2. The right to bring a claim shall likewise not be affected if the respondent State,
subsequently to the act or omission imputed to it, imposed upon the alien its own
nationality with the object of resisting the international claim.

Article 25 Limitation of time affecting the right to bring a claim

1. Except where the parties concerned have agreed upon a different time limit,
the right to bring an international claim shall lapse after the expiry of two years
from the date when local remedies were exhausted.
2. Notwithstanding the provisions of the preceding paragraph, the international
claim shall be admissible if it is proved that the delay in its submission is due to
reasons not connected with the will of the claimant.

chapter viii nature and measure of the reparation

Article 26 Restitution and pecuniary damages
1. The reparation of the injury caused to an alien may take the form of restitution
in kind (restitutio in integrum) or of pecuniary damages, whichever may best serve
to wipe out the consequences of the act or omission imputable to the respondent
State.
2. Notwithstanding the provisions of the foregoing paragraph, the reparation
shall not take the form of restitution if restitution would involve the repeal
of a law, the annulment of a judicial decision or the non-application of an
executive or administrative measure and it would be incompatible with or cause
difficulties under the municipal law of the respondent State.
3. The amount of the pecuniary damages shall be determined in accordance with
the nature of the injury caused to the person or property of the alien or, in the
event of his death, of his heirs or successors in title. Consequently, irrespective of
742 appendix 4

the nature of the reparation or of the purpose for which it is made, the pecuniary
damages shall not result in the undue enrichment of the injured alien.
4. In the determination of the nature and measure of the reparation, the fault
imputable to the injured alien and any of the other circumstances described as
extenuating circumstances in article 17, paragraph 4, of this draft shall be taken
into account.

Article 27 Measures to prevent the repetition of the injurious act

1. Even in the case of an act or omission the consequences of which extend
beyond the injury caused to the alien, a fact constituting an aggravating circum-
stance, the reparation shall not take a form of ‘satisfaction’ to the State of
nationality, which would be offensive to the honour and dignity of the respond-
ent state.
2. Notwithstanding the provisions of the foregoing paragraph, in any such case as
aforesaid the State of nationality shall have the right, without prejudice to the
reparation due in respect of the injury sustained by the alien, to demand that the
respondent State take the necessary steps to prevent the repetition of events of
the nature of those imputed to that State.
Appendix 5 ILC Draft Articles on State
Responsibility (as adopted
on first reading, 1996)

part one origin of international responsibility

chapter i general principles
Article 1 Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international responsi-
bility of that State.

Article 2 Possibility that every State may be held to have committed an

internationally wrongful act
Every State is subject to the possibility of being held to have committed an
internationally wrongful act entailing its international responsibility.

Article 3 Elements of an internationally wrongful act of a State

There is an internationally wrongful act of a State when:

(a) conduct consisting of an action or omission is attributable to the State

under international law; and
(b) that conduct constitutes a breach of an international obligation of the
State.

Article 4 Characterization of an act of a State as internationally wrongful

An act of a State may only be characterized as internationally wrongful by
international law. Such characterization cannot be affected by the characteriza-
tion of the same act as lawful by internal law.

chapter ii the ‘act of the state’ under international law

Article 5 Attribution to the State of the conduct of its organs
For the purposes of the present articles, conduct of any State organ having that
status under the internal law of that State shall be considered as an act of the

743
744 appendix 5

State concerned under international law, provided that organ was acting in that
capacity in the case in question.

Article 6 Irrelevance of the position of the organ in the organization

of the State
The conduct of an organ of the State shall be considered as an act of that State
under international law, whether that organ belongs to the constituent, legisla-
tive, executive, judicial or other power, whether its functions are of an inter-
national or an internal character, and whether it holds a superior or a
subordinate position in the organization of the State.

Article 7 Attribution to the State of the conduct of other entities empowered

to exercise elements of the government authority
1. The conduct of an organ of a territorial governmental entity within a State
shall also be considered as an act of that State under international law, provided
that organ was acting in that capacity in the case in question.
2. The conduct of an organ of an entity which is not part of the formal structure
of the State or of a territorial governmental entity, but which is empowered by
the internal law of that State to exercise elements of the governmental authority,
shall also be considered as an act of the State under international law, provided
that organ was acting in that capacity in the case in question.

Article 8 Attribution to the State of the conduct of persons acting in fact

on behalf of the State
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; or
(b) such person or group of persons was in fact exercising elements of
the governmental authority in the absence of the official authorities
and in circumstances which justified the exercise of those elements
of authority.

Article 9 Attribution to the State of the conduct of organs placed at its

disposal by another State or by an international organization
The conduct of an organ which has been placed at the disposal of a State by
another State or by an international organization shall be considered as an act of
the former State under international law, if that organ was acting in the exercise
of elements of the governmental authority of the State at whose disposal it has
been placed.
 draft articles on state responsibility (1996) 745

Article 10 Attribution to the State of conduct of organs acting outside their

competence or contrary to instructions concerning their activity
The conduct of an organ of a State, of a territorial governmental entity or of an
entity empowered to exercise elements of the governmental authority, such
organ having acted in that capacity, shall be considered as an act of the State
under international law even if, in the particular case, the organ exceeded its
competence according to internal law or contravened instructions concerning its
activity.

Article 11 Conduct of persons not acting on behalf of the State

1. The 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.
2. Paragraph 1 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.

Article 12 Conduct of organs of another State

1. The conduct of an organ of a State acting in that capacity which takes place in
the territory of another State or in any other territory under its jurisdiction shall
not be considered as an act of the latter State under international law.
2. Paragraph 1 is without prejudice to the attribution to a State of any other
conduct which is related to that referred to in that paragraph and which is to be
considered as an act of that State by virtue of articles 5 to 10.

Article 13 Conduct of organs of an international organization

The conduct of an organ of an international organization acting in that capacity
shall not be considered as an act of a State under international law by reason only
of the fact that such conduct has taken place in the territory of that State or in
any other territory under its jurisdiction.

Article 14 Conduct of organs of an insurrectional movement

1. The conduct of an organ of an insurrectional movement which is established in
the territory of a State or in any other territory under its administration shall not
be considered as an act of that State under international law.
2. Paragraph 1 is without prejudice to the attribution to a State of any
other conduct which is related to that of the organ of the insurrectional
movement and which is to be considered as an act of that State by virtue of
articles 5 to 10.
746 appendix 5

3. Similarly, paragraph 1 is without prejudice to the attribution of the conduct

of the organ of the insurrectional movement to that movement in any case in
which such attribution may be made under international law.

Article 15 Attribution to the State of the act of an insurrectional movement

which becomes the new government of a State or which results in the formation
of a new State
1. The act of an insurrectional movement which becomes the new government of
a State shall be considered as an act of that State. However, such attribution shall
be without prejudice to the attribution to that State of conduct which would have
been previously considered as an act of the State by virtue of articles 5 to 10.
2. The act of an insurrectional movement whose action results in the formation
of a new State in part of the territory of a pre existing State or in a territory under
its administration shall be considered as an act of the new State.

chapter iii breach of an international obligation

Article 16 Existence of a breach of an international obligation
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.

Article 17 Irrelevance of the origin of the international obligation breached

1. An act of a State which constitutes a breach of an international obligation is an
internationally wrongful act regardless of the origin, whether customary, con-
ventional or other, of that obligation.
2. The origin of the international obligation breached by a State does not affect
the international responsibility arising from the internationally wrongful act of
that State.

Article 18 Requirement that the international obligation be in force for the State
1. An act of the State which is not in conformity with what is required of it by an
international obligation constitutes a breach of that obligation only if the act was
performed at the time when the obligation was in force for that State.
2. 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 an internationally wrongful act if,
subsequently, such an act has become compulsory by virtue of a peremptory
norm of general international law.
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
 draft articles on state responsibility (1996) 747

obligation only in respect of the period during which the act continues while the
obligation is in force for that State.
4. 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.
5. If an act of the State which is not in conformity with what is required of it
by an international obligation is a complex act constituted by actions or
omissions by the same or different organs of the State in respect of the same
case, there is a breach of that obligation if the complex act not in conformity
with it begins with an action or omission occurring within the period during
which the obligation is in force for that State, even if that act is completed
after that period.

Article 19 International crimes and international delicts

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 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.

4. Any internationally wrongful act which is not an international crime in

accordance with paragraph 2 constitutes an international delict.
748 appendix 5

Article 20 Breach of an international obligation requiring the adoption

of a particular course of conduct
There is a breach by a State of an international obligation requiring it to adopt a
particular course of conduct when the conduct of that State is not in conformity
with that required of it by that obligation.

Article 21 Breach of an international obligation requiring the

achievement of a specified result
1. There is a breach by a State of an international obligation requiring it to
achieve, by means of its own choice, a specified result if, by the conduct adopted,
the State does not achieve the result required of it by that obligation.
2. 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 subse-
quent 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.

Article 22 Exhaustion of local remedies

When the conduct of a State has created a situation not in conformity with the
result required of it by an international obligation concerning the treatment to
be accorded to aliens, whether natural or juridical persons, but the obligation
allows that this or an equivalent result may nevertheless be achieved by subse-
quent conduct of the State, there is a breach of the obligation only if the aliens
concerned have exhausted the effective local remedies available to them without
obtaining the treatment called for by the obligation or, where that is not possible,
an equivalent treatment.

Article 23 Breach of an international obligation to prevent a given event

When the result required of a State by an international obligation is the preven-
tion, by means of its own choice, of the occurrence of a given event, there is a
breach of that obligation only if, by the conduct adopted, the State does not
achieve that result.

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.
 draft articles on state responsibility (1996) 749

Article 25 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.
2. 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 obliga-
tion and so long as such actions or omissions are repeated.
3. 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.

Article 26 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.

chapter iv implication of a state in the internationally

wrongful act of another state
Article 27 Aid or assistance by a State to another State for the commission
of an internationally wrongful act
Aid or assistance by a State to another State, if it is established that it is rendered
for the commission of an internationally wrongful act carried out by the latter,
itself constitutes an internationally wrongful act, even if, taken alone, such aid or
assistance would not constitute the breach of an international obligation.

Article 28 Responsibility of a State for an internationally wrongful act of

another State
1. An internationally wrongful act committed by a State in a field of activity in
which that State is subject to the power of direction or control of another State
entails the international responsibility of that other State.
750 appendix 5

2. An internationally wrongful act committed by a State as the result of coercion

exerted by another State to secure the commission of that act entails the inter-
national responsibility of that other State.
3. Paragraphs 1 and 2 are without prejudice to the international responsibility,
under the other provisions of the present articles, of the State which has com-
mitted the internationally wrongful act.

chapter v circumstances precluding wrongfulness

Article 29 Consent
1. The consent validly given by a State to the commission by another State of a
specified act not in conformity with an obligation of the latter State towards the
former State precludes the wrongfulness of the act in relation to that State to the
extent that the act remains within the limits of that consent.
2. Paragraph 1 does not apply if the obligation arises out of a peremptory norm of
general international law. For the purposes of the present articles, a peremptory
norm of general international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which no deroga-
tion is permitted and which can be modified only by a subsequent norm of
general international law having the same character.

Article 30 Countermeasures in respect of an internationally wrongful act

The wrongfulness of an act of a State not in conformity with an obligation of that
State towards another State is precluded if the act constitutes a measure legitim-
ate under international law against that other State, in consequence of an
internationally wrongful act of that other State.

Article 31 Force majeure and fortuitous event

1. The wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the act was due to an irresistible force or to
an unforeseen external event beyond its control which made it materially impos-
sible for the State to act in conformity with that obligation or to know that its
conduct was not in conformity with that obligation.
2. Paragraph 1 shall not apply if the State in question has contributed to the
occurrence of the situation of material impossibility.

Article 32 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 conduct which consti-
tutes the act of that State had no other means, in a situation of extreme distress,
of saving his life or that of persons entrusted to his care.
 draft articles on state responsibility (1996) 751

2. Paragraph 1 shall not apply if the State in question has contributed to the
occurrence of the situation of extreme distress or if the conduct in question was
likely to create a comparable or greater peril.

Article 33 State of necessity

1. A state of necessity may not be invoked by a State as a ground for precluding
the wrongfulness of an act of that State not in conformity with an international
obligation of the State unless:

(a) the act was the only means of safeguarding an essential interest of the
State against a grave and imminent peril; and
(b) the act did not seriously impair an essential interest of the State
towards which the obligation existed.

2. In any case, a state of necessity may not be invoked by a State as a ground for
precluding wrongfulness:

(a) if the international obligation with which the act of the State is not in
conformity arises out of a peremptory norm of general international
law; or
(b) if the international obligation with which the act of the State is not in
conformity is laid down by a treaty which, explicitly or implicitly,
excludes the possibility of invoking the state of necessity with respect
to that obligation; or
(c) if the State in question has contributed to the occurrence of the state of
necessity.

Article 34 Self-defence
The wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the act constitutes a lawful measure of self-
defence taken in conformity with the Charter of the United Nations.

Article 35 Reservation as to compensation for damage

Preclusion of the wrongfulness of an act of a State by virtue of the provisions of
articles 29, 31, 32 or 33 does not prejudge any question that may arise in regard
to compensation for damage caused by that act.

part two content, forms and degrees of international

responsibility
chapter i general principles
Article 36 Consequences of an internationally wrongful act
1. The international responsibility of a State which, in accordance with the
provisions of Part One, arises from an internationally wrongful act committed
by that State, entails legal consequences as set out in this Part.
752 appendix 5

2. The legal consequences referred to in paragraph 1 are without prejudice to the

continued duty of the State which has committed the internationally wrongful
act to perform the obligation it has breached.

Article 37 Lex specialis

The provisions of this Part do not apply where and to the extent that the legal
consequences of an internationally wrongful act of a State have been determined
by other rules of international law relating specifically to that act.

Article 38 Customary international law

The rules of customary international law shall continue to govern the legal
consequences of an internationally wrongful act of a State not set out in the
provisions of this Part.

Article 39 Relationship to the Charter of the United Nations

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 proced-
ure of the Charter of the United Nations relating to the maintenance of inter-
national peace and security.

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 instru-
ment 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
 draft articles on state responsibility (1996) 753

party to the multilateral treaty or bound by the relevant rule of cus-

tomary 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 consti-

tutes an international crime, all other States.

chapter ii rights of the injured state and obligations of the

state which has committed an internationally wrongful act
Article 41 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.

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:

(a) the injured State; or

(b) a national of that State on whose behalf the claim is brought; which
contributed to the damage.

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
full reparation.
754 appendix 5

Article 43 Restitution in kind

The injured State is entitled to obtain from the State which has committed an
internationally wrongful act restitution in kind, that is, the re-establishment of
the situation which existed before the wrongful act was committed, provided and
to the extent that restitution in kind:

(a) is not materially impossible;

(b) would not involve a breach of an obligation arising from a peremptory
norm of general international law;
(c) would not involve a burden out of all proportion to the benefit which
the injured State would gain from obtaining restitution in kind instead
of compensation; or
(d) would not seriously jeopardize the political independence or economic
stability of the State which has committed the internationally wrongful
act, whereas the injured State would not be similarly affected if it did
not obtain restitution in kind.

Article 44 Compensation
1. The injured State is entitled to obtain from the State which has committed an
internationally wrongful act compensation for the damage caused by that act, if
and to the extent that the damage is not made good by restitution in kind.
2. For the purposes of the present article, compensation covers any economically
assessable damage sustained by the injured State, and may include interest and,
where appropriate, loss of profits.

Article 45 Satisfaction
1. The injured State is entitled to obtain from the State which has committed an
internationally wrongful act satisfaction for the damage, in particular moral
damage, caused by that act, if and to the extent necessary to provide full reparation.
2. Satisfaction may take the form of one or more of the following:

(a) an apology;
(b) nominal damages;
(c) in cases of gross infringement of the rights of the injured State,
damages reflecting the gravity of the infringement;
(d) in cases where the internationally wrongful act arose from the serious
misconduct of officials or from criminal conduct of officials or private
parties, disciplinary action against, or punishment of, those
responsible.

3. The right of the injured State to obtain satisfaction does not justify demands
which would impair the dignity of the State which has committed the inter-
nationally wrongful act.
 draft articles on state responsibility (1996) 755

Article 46 Assurances and guarantees of non-repetition

The injured State is entitled, where appropriate, to obtain from the State which
has committed an internationally wrongful act assurances or guarantees of non-
repetition of the wrongful act.

chapter iii countermeasures

Article 47 Countermeasures by an injured State
1. For the purposes of the present articles, the taking of countermeasures means
that an injured State does not comply with one or more of its obligations towards
a State which has committed an internationally wrongful act in order to induce it
to comply with its obligations under articles 41 to 46, as long as it has not
complied with those obligations and as necessary in the light of its response to
the demands of the injured State that it do so.
2. The taking of countermeasures is subject to the conditions and restrictions set
out in articles 48 to 50.
3. Where a countermeasure against a State which has committed an inter-
nationally wrongful act involves a breach of an obligation towards a third
State, such a breach cannot be justified under this chapter as against the
third State.

Article 48 Conditions relating to resort to countermeasures

1. Prior to taking countermeasures, an injured State shall fulfil its obligation to
negotiate provided for in article 54. This obligation is without prejudice to the
taking by that State of interim measures of protection which are necessary to
preserve its rights and which otherwise comply with the requirements of this
Chapter.
2. An injured State taking countermeasures shall fulfil the obligations in relation
to dispute settlement arising under Part Three or any other binding dispute
settlement procedure in force between the injured State and the State which
has committed the internationally wrongful act.
3. Provided that the internationally wrongful act has ceased, the injured State
shall suspend countermeasures when and to the extent that the dispute settle-
ment procedure referred to in paragraph 2 is being implemented in good faith by
the State which has committed the internationally wrongful act and the dispute
is submitted to a tribunal which has the authority to issue orders binding on the
parties.
4. The obligation to suspend countermeasures ends in case of failure by the State
which has committed the internationally wrongful act to honour a request or
order emanating from the dispute settlement procedure.
756 appendix 5

Article 49 Proportionality
Countermeasures taken by an injured State shall not be out of proportion to the
degree of gravity of the internationally wrongful act and the effects thereof on
the injured State.

Article 50 Prohibited countermeasures

An injured State shall not resort by way of countermeasures to:

(a) the threat or use of force as prohibited by the Charter of the United
Nations;
(b) extreme economic or political coercion designed to endanger the
territorial integrity or political independence of the State which has
committed the internationally wrongful act;
(c) any conduct which infringes the inviolability of diplomatic or consular
agents, premises, archives and documents;
(d) any conduct which derogates from basic human rights; or
(e) any other conduct in contravention of a peremptory norm of general
international law.

chapter iv international crimes

Article 51 Consequences of an international crime
An international crime entails all the legal consequences of any other inter-
nationally wrongful act and, in addition, such further consequences as are set
out in articles 52 and 53.

Article 52 Specific consequences

Where an internationally wrongful act of a State is an international crime:

(a) an injured State’s entitlement to obtain restitution in kind is not

subject to the limitations set out in subparagraphs (c) and (d) of
article 43;
(b) an injured State’s entitlement to obtain satisfaction is not subject to the
restriction in paragraph 3 of article 45.

Article 53 Obligations for all States

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;
 draft articles on state responsibility (1996) 757

(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.

part three settlement of disputes

Article 54 Negotiation
If a dispute regarding the interpretation or application of the present articles
arises between two or more States Parties to the present articles, they shall, upon
the request of any of them, seek to settle it amicably by negotiation.

Article 55 Good offices and mediation

Any State Party to the present articles, not being a party to the dispute may, at
the request of any party to the dispute or upon its own initiative, tender its good
offices or offer to mediate with a view to facilitating an amicable settlement of
the dispute.

Article 56 Conciliation
If, three months after the first request for negotiations, the dispute has not been
settled by agreement and no mode of binding third party settlement has been
instituted, any party to the dispute may submit it to conciliation in conformity
with the procedure set out in annex I to the present articles.

Article 57 Task of the Conciliation Commission

1. The task of the Conciliation Commission shall be to elucidate the questions in
dispute, to collect with that object all necessary information by means of inquiry
or otherwise and to endeavour to bring the parties to the dispute to a settlement.
2. To that end, the parties shall provide the Commission with a statement of their
position regarding the dispute and of the facts upon which that position is based.
In addition, they shall provide the Commission with any further information or
evidence as the Commission may request and shall assist the Commission in any
independent fact-finding it may wish to undertake, including fact-finding within
the territory of any party to the dispute, except where exceptional reasons make
this impractical. In that event, that party shall give the Commission an explan-
ation of those exceptional reasons.
3. The Commission may, at its discretion, make preliminary proposals to any or
all of the parties, without prejudice to its later recommendations.
4. The recommendations to the parties shall be embodied in a report to be
presented not later than three months from the formal constitution of the
758 appendix 5

Commission, and the Commission may specify the period within which the
parties are to respond to those recommendations.
5. If the response by the parties to the Commission’s recommendations does not
lead to the settlement of the dispute, the Commission may submit to them a final
report containing its own evaluation of the dispute and its recommendations for
settlement.

Article 58 Arbitration
1. Failing a reference of the dispute to the Conciliation Commission provided for
in article 56 or failing an agreed settlement within six months following the
report of the Commission, the parties to the dispute may, by agreement, submit
the dispute to an arbitral tribunal to be constituted in conformity with annex II
to the present articles.
2. In cases, however, where the dispute arises between States Parties to the
present articles, one of which has taken countermeasures against the other,
the State against which they are taken is entitled at any time unilaterally to
submit the dispute to an arbitral tribunal to be constituted in conformity with
annex II to the present articles.

Article 59 Terms of reference of the Arbitral Tribunal

1. The Arbitral Tribunal, which shall decide with binding effect any issues of fact
or law which may be in dispute between the parties and are relevant under any of
the provisions of the present articles, shall operate under the rules laid down or
referred to in annex II to the present articles and shall submit its decision to the
parties within six months from the date of completion of the parties’ written and
oral pleadings and submissions.
2. The Tribunal shall be entitled to resort to any fact finding it deems necessary
for the determination of the facts of the case.

Article 60 Validity of an arbitral award

1. If the validity of an arbitral award is challenged by either party to the dispute,
and if within three months of the date of the challenge the parties have not
agreed on another tribunal, the International Court of Justice shall be competent,
upon the timely request of any party, to confirm the validity of the award or
declare its total or partial nullity.
2. Any issue in dispute left unresolved by the nullification of the award may, at
the request of any party, be submitted to a new arbitration before an arbitral
tribunal to be constituted in conformity with annex II to the present articles.
 draft articles on state responsibility (1996) 759

annex i the conciliation commission

1. A list of conciliators consisting of qualified jurists shall be drawn up and
maintained by the Secretary-General of the United Nations. To this end, every
State which is a Member of the United Nations or a Party to the present articles
shall be invited to nominate two conciliators, and the names of the persons so
nominated shall constitute the list. The term of a conciliator, including that of
any conciliator nominated to fill a casual vacancy, shall be five years and may be
renewed. A conciliator whose term expires shall continue to fulfil any function
for which he shall have been chosen under paragraph 2.
2. A party may submit a dispute to conciliation under article 56 by a request to
the Secretary-General who shall establish a Conciliation Commission to be con-
stituted as follows:
(a) The State or States constituting one of the parties to the dispute shall
appoint:
(i) one conciliator of the nationality of that State or of one of those
States, who may or may not be chosen from the list referred to in
paragraph 1; and
(ii) one conciliator not of the nationality of that State or of any of
those States, who shall be chosen from the list.
(b) The State or States constituting the other party to the dispute shall
appoint two conciliators in the same way.
(c) The four conciliators appointed by the parties shall be appointed within
60 days following the date on which the Secretary-General receives the
request.
(d) The four conciliators shall, within 60 days following the date of the last
of their own appointments, appoint a fifth conciliator chosen from the
list, who shall be chairman.
(e) If the appointment of the chairman or of any of the other conciliators
has not been made within the period prescribed above for such
appointment, it shall be made from the list by the Secretary-General
within 60 days following the expiry of that period. Any of the periods
within which appointments must be made may be extended by agree-
ment between the parties.
(f) Any vacancy shall be filled in the manner prescribed for the initial
appointment.
3. The failure of a party or parties to participate in the conciliation procedure
shall not constitute a bar to the proceedings.
4. A disagreement as to whether a Commission acting under this Annex has
competence shall be decided by the Commission.
5. The Commission shall determine its own procedure. Decisions of the Commis-
sion shall be made by a majority vote of the five members.
760 appendix 5

6. In disputes involving more than two parties having separate interests, or

where there is disagreement as to whether they are of the same interest, the
parties shall apply paragraph 2 in so far as possible.

annex ii the arbitral tribunal

1. The Arbitral Tribunal referred to in articles 58 and 60, paragraph 2 shall
consist of five members. The parties to the dispute shall each appoint one
member, who may be chosen from among their respective nationals. The three
other arbitrators including the Chairman shall be chosen by common agreement
from among the nationals of third States.
2. If the appointment of the members of the Tribunal is not made within a period
of three months from the date on which one of the parties requested the other
party to constitute an arbitral tribunal, the necessary appointments shall be
made by the President of the International Court of Justice. If the President is
prevented from acting or is a national of one of the parties, the appointments
shall be made by the Vice-President. If the Vice-President is prevented from
acting or is a national of one of the parties, the appointments shall be made by
the most senior member of the Court who is not a national of either party. The
members so appointed shall be of different nationalities and, except in the case of
appointments made because of failure by either party to appoint a member, may
not be nationals of, in the service of or ordinarily resident in the territory of a
party.
3. Any vacancy which may occur as a result of death, resignation or any other
cause shall be filled within the shortest possible time in the manner prescribed
for the initial appointment.
4. Following the establishment of the Tribunal, the parties shall draw up an
agreement specifying the subject-matter of the dispute, unless they have done so
before.
5. Failing the conclusion of an agreement within a period of three months from
the date on which the Tribunal was constituted, the subject-matter of the dispute
shall be determined by the Tribunal on the basis of the application submitted
to it.
6. The failure of a party or parties to participate in the arbitration procedure shall
not constitute a bar to the proceedings.
7. Unless the parties otherwise agree, the Tribunal shall determine its own
procedure. Decisions of the Tribunal shall be made by a majority vote of the
five members.
Appendix 6 ILC Draft Articles on the
Responsibility of International
Organizations (2011)

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 internationally wrongful act.
2. The present draft articles also apply to the international responsibility of a
State for an internationally wrongful act in connection with the conduct 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 international
organization adopted in accordance with those instruments, and
established practice of the organization;
(c) ‘organ of an international organization’ means any person or
entity which has that status in accordance with the rules of the
organization;
(d) ‘agent of an international organization’ means an official or other
person or entity, other than an organ, who is charged by the
organization with carrying out, or helping to carry out, one of its
functions, and thus through whom the organization acts.

761
762 appendix 6

part two the internationally wrongful act of an international

organization
chapter i general principles
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 that 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 that organization under international law; and

(b) constitutes a breach of an international obligation of that
organization.

Article 5 Characterization of an act of an international organization as

internationally wrongful
The characterization of an act of an international organization as internationally
wrongful is governed by international law.

chapter ii attribution of conduct to an international

organization
Article 6 Conduct of organs or agents of 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 an act of
that organization under international law, whatever position the organ or agent
holds in respect of the organization.
2. The rules of the organization apply in the determination of the functions of its
organs and agents.

Article 7 Conduct of organs of a State or organs or agents of an international

organization placed at the disposal of 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 international law an act of the latter organization if the
organization exercises effective control over that conduct.
 dario (2011) 763

Article 8 Excess of authority or contravention of instructions

The conduct of an organ or agent of an international organization shall be considered
an act of that organization under international law if the organ or agent acts in an
official capacity and within the overall functions of that organization, even if the
conduct exceeds the authority of that organ or agent or contravenes instructions.

Article 9 Conduct acknowledged and adopted by an international

organization as its own
Conduct which is not attributable to an international organization under articles
6 to 8 shall nevertheless be considered an act of that organization under inter-
national 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 10 Existence of a breach of an international obligation
1. There is a breach of an international obligation by an international organiza-
tion when an act of that international organization is not in conformity with
what is required of it by that obligation, regardless of the origin or character of
the obligation concerned.
2. Paragraph 1 includes the breach of any international obligation that may arise
for an international organization towards its members under the rules of the
organization.

Article 11 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 organization is bound by the obligation in
question at the time the act occurs.

Article 12 Extension in time of the breach of an international obligation

1. The breach of an international obligation by an act of an international organ-
ization 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 organ-
ization having a continuing character extends over the entire period during
which the act continues and remains not in conformity with that obligation.
3. The breach of an international obligation requiring an international organiza-
tion 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.
764 appendix 6

Article 13 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.
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.

chapter iv responsibility of an international organization in

connection with the act of a state or another international
organization
Article 14 Aid or assistance in the commission of an internationally
wrongful act
An international organization which aids or assists a State or another inter-
national organization in the commission of an internationally wrongful act by
the State or the latter organization is internationally responsible for doing so if:

(a) the former 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 Direction and control exercised over the commission of an

internationally wrongful act
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) the former 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 16 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.
 dario (2011) 765

Article 17 Circumvention of international obligations through decisions and

authorizations addressed to members
1. An international organization incurs international responsibility if it circum-
vents one of its international obligations by adopting a decision binding member
States or international organizations to commit an act that would be internation-
ally wrongful if committed by the former organization.
2. An international organization incurs international responsibility if it circum-
vents one of its international obligations by authorizing member States or inter-
national organizations to commit an act that would be internationally wrongful
if committed by the former organization and the act in question is committed
because of that authorization.
3. Paragraphs 1 and 2 apply whether or not the act in question is internationally
wrongful for the member States or international organizations to which the
decision or authorization is addressed.

Article 18 Responsibility of an international organization member of another

international organization
Without prejudice to draft articles 14 to 17, the international responsibility of an
international organization that is a member of another international organiza-
tion also arises in relation to an act of the latter under the conditions set out
in draft articles 61 and 62 for States that are members of an international
organization.

Article 19 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 international organization.

chapter v circumstances precluding wrongfulness

Article 20 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 21 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 inter-
national law.
766 appendix 6

Article 22 Countermeasures
1. Subject to paragraphs 2 and 3, 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 Four for countermeasures taken against another international
organization.
2. Subject to paragraph 3, an international organization may not take countermeas-
ures against a responsible member State or international organization unless:

(a) the conditions referred to in paragraph 1 are met;

(b) the countermeasures are not inconsistent with the rules of the
organization; and
(c) 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.

3. Countermeasures may not be taken by an international organization against a

member State or international organization in response to a breach of an inter-
national obligation under the rules of the organization unless such countermeas-
ures are provided for by those rules.

Article 23 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.
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 organization invoking it; or
(b) the organization has assumed the risk of that situation occurring.

Article 24 Distress
1. The wrongfulness of an act of an international organization not in con-
formity 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.
 dario (2011) 767

2. Paragraph 1 does not apply if:

(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 25 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 its member States or of the
international community as a whole, when the organization has, in
accordance with international law, the function to protect the interest
in question; and
(b) does not seriously impair an essential interest of the State or States
towards which the international obligation exists, or of the
international community as a whole.

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 26 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.

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.
768 appendix 6

part three content of the international responsibility of an

international organization
chapter i general principles
Article 28 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 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 international organization to per-
form the obligation breached.

Article 30 Cessation and non-repetition

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.

Article 31 Reparation
1. The responsible international organization 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 inter-
nationally wrongful act of an international organization.

Article 32 Relevance of the rules of the organization

1. The responsible international organization may not rely on its rules as justifi-
cation for failure to comply with its obligations under this Part.
2. Paragraph 1 is without prejudice to the applicability of the rules of an inter-
national organization to the relations between the organization and its member
States and organizations.

Article 33 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 States, to one or more other organizations,
or to the international community as a whole, depending in particular on
 dario (2011) 769

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 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
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 36 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.
2. The compensation shall cover any financially assessable damage including loss
of profits insofar as it is established.

Article 37 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.
770 appendix 6

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
international organization or of any person or entity in relation to whom repar-
ation is sought.

Article 40 Ensuring the fulfilment of the obligation to make reparation

1. The responsible international organization shall take all appropriate measures
in accordance with its rules to ensure that its members provide it with the means
for effectively fulfilling its obligations under this Chapter.
2. The members of a responsible international organization shall take all the
appropriate measures that may be required by the rules of the organization in
order to enable the organization to fulfil its obligations under this Chapter.

chapter iii serious breaches of obligations under peremptory

norms of general international law
Article 41 Application of this Chapter
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.
2. A breach of such an obligation is serious if it involves a gross or systematic
failure by the responsible international organization to fulfil the obligation.

Article 42 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 41.
2. No State or international organization 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.
 dario (2011) 771

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 43 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 inter-
national 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 obliga-
tion is owed with respect to the further performance of the
obligation.

Article 44 Notice of claim by an injured State or international organization

1. An injured State or international organization which invokes the responsi-
bility 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 45 Admissibility of claims

1. An injured State may not invoke the responsibility of an international organ-
ization if the claim is not brought in accordance with any applicable rule relating
to the nationality of claims.
2. When the rule of exhaustion of local remedies applies to a claim,
an injured State or international organization may not invoke the
772 appendix 6

responsibility of another international organization if any available and

effective remedy has not been exhausted.

Article 46 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 47 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 48 Responsibility of an international organization and one or more

States or international organizations
1. Where an international organization and one or more States or other inter-
national organizations are responsible for the same internationally wrongful
act, the responsibility of each State or organization may be invoked in relation
to that act.
2. Subsidiary responsibility may be invoked insofar as the invocation of the
primary responsibility has not led to reparation.
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 49 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 inter-
national organization is entitled to invoke the responsibility of another inter-
national organization in accordance with paragraph 4 if the obligation breached
is owed to a group of States or international organizations, including the State or
 dario (2011) 773

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 organiza-
tion is entitled to invoke the responsibility of another international organization
in accordance with paragraph 4 if the obligation breached is owed to the inter-
national community as a whole and safeguarding the interest of the inter-
national community as a whole underlying the obligation breached is within
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-repetition in accordance with draft article 30; and
(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 draft articles 44, 45, paragraph 2, and 46 apply
to an invocation of responsibility by a State or international organization entitled
to do so under paragraphs 1 to 4.

Article 50 Scope of this Chapter

This Chapter is without prejudice to the entitlement that a person or entity other
than a State or an international organization may have to invoke the inter-
national responsibility of an international organization.

chapter ii countermeasures
Article 51 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.
774 appendix 6

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.

Article 52 Conditions for taking countermeasures by members of an

international organization
1. Subject to paragraph 2, an injured State or international organization which is
a member of a responsible international organization may not take countermeas-
ures against that organization unless:

(a) the conditions referred to in article 51 are met;

(b) the countermeasures are not inconsistent with the rules of the
organization; and
(c) no appropriate means are available for otherwise inducing compliance
with the obligations of the responsible international organization
concerning cessation of the breach and reparation.

2. Countermeasures may not be taken by an injured State or international

organization which is a member of a responsible international organization
against that organization in response to a breach of an international obligation
under the rules of the organization unless such countermeasures are provided
for by those rules.

Article 53 Obligations not affected by countermeasures

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) obligations for the protection of 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 it and the
responsible international organization;
(b) to respect any inviolability of organs or agents of the responsible
international organization and of the premises, archives and docu-
ments of that organization.

Article 54 Proportionality of countermeasures

Countermeasures must be commensurate with the injury suffered, taking into
account the gravity of the internationally wrongful act and the rights in question.
 dario (2011) 775

Article 55 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 draft article 44, 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 organiza-

tion 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 decisions binding on the parties.

4. Paragraph 3 does not apply if the responsible international organization fails

to implement the dispute settlement procedures in good faith.

Article 56 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 57 Measures taken by States or international organizations other than

an injured State or organization
This Chapter does not prejudice the right of any State or international organiza-
tion, entitled under article 49, paragraphs 1 to 3, to invoke the responsibility of
another international organization, to take lawful measures against that organ-
ization to ensure cessation of the breach and reparation in the interest of the
injured State or organization or of the beneficiaries of the obligation breached.

part five responsibility of a state in connection with the conduct

of an international organization
Article 58 Aid or assistance by a State in the commission of an internationally
wrongful act by an international organization
1. 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:
776 appendix 6

(a) the 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.

2. An act by a State member of an international organization done in accordance

with the rules of the organization does not as such engage the international
responsibility of that State under the terms of this article.

Article 59 Direction and control exercised by a State over the commission of an

internationally wrongful act by an international organization
1. A State which directs and controls an international organization in the com-
mission of an internationally wrongful act by the latter is internationally respon-
sible for that act if:

(a) the 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.

2. An act by a State member of an international organization done in accordance

with the rules of the organization does not as such engage the international
responsibility of that State under the terms of this draft article.

Article 60 Coercion of an international organization by a State

A State which coerces an international organization to commit an act is inter-
nationally responsible for that act if:

(a) the act would, but for the coercion, be an internationally wrongful
act of the coerced international organization; and
(b) the coercing State does so with knowledge of the circumstances of
the act.

Article 61 Circumvention of international obligations of a State member of an

international organization
1. A State member of an international organization incurs international respon-
sibility if, by taking advantage of the fact that the organization has competence
in relation to the subject-matter of one of the State’s international obligations,
it circumvents that obligation by causing 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.
 dario (2011) 777

Article 62 Responsibility of a State member of an international organization for

an internationally wrongful act of that organization
1. A State member of an international organization is responsible for an inter-
nationally wrongful act of that organization if:

(a) it has accepted responsibility for that act towards the injured party; or
(b) it has led the injured party to rely on its responsibility.

2. Any international responsibility of a State under paragraph 1 is presumed to be

subsidiary.

Article 63 Effect of this Part

This Part is without prejudice to the international responsibility of the inter-
national organization which commits the act in question, or of any State or other
international organization.

part six general provisions

Article 64 Lex specialis
These draft articles do not apply where and to the extent that the conditions for
the existence of an internationally wrongful act or the content or implementa-
tion of the international responsibility of an international organization, or of a
State in connection with the conduct of an international organization, are
governed by special rules of international law. Such special rules of international
law may be contained in the rules of the organization applicable to the relations
between an international organization and its members.

Article 65 Questions of international responsibility not regulated by

these draft articles
The applicable rules of international law continue to govern questions concern-
ing the responsibility of an international organization or a State for an inter-
nationally wrongful act to the extent that they are not regulated by these draft
articles.

Article 66 Individual responsibility

These draft 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 67 Charter of the United Nations

These draft articles are without prejudice to the Charter of the United Nations.
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 Index

absence of state authority see authority customary international law, 400–1

‘abuse of rights’ definition, 401–5
meaning, 734 development of ARSIWA Article 16,
accountability 400–1, 775–6
levels of, 84 general principles, 405
and responsibility, 83–5 from international organization, 764
acquiescence see claims omissions as, 403–5
acts or omissions from other state
affecting aliens’ rights see aliens, injury to ARSIWA, 714
as aid or assistance, 403–5 Draft Articles 1996, 749
breach of obligations, 217–19 secondary responsibility, 399
exonerating and extenuating Al-Jedda case
circumstances, 738 contributing state responsibility,
giving rise to responsibility, 734–8 200–3
imputability, 737–8 aliens, injury to
instantaneous and continuing acts claims
distinguished, 262–4 admissibility, 738–40
ad hoc judges alien torts, 81–3
appointment, 671–2 dispute settlement as to admissibility,
admissibility of claims see invocation of 739–40
responsibility exhaustion of local remedies,
‘agent of an international organization’ 738–9
meaning, 761 inadmissible restrictions on right to
Ago, Roberto claim, 741
committee chairman, 36 nationality of, 740–1
counsel, 269–70 right to bring, 740
Hague Lectures 1939, 26 by state of nationality, 740–1
judgments, 149 submission, 740–1
Special Rapporteur, 35–6, 54–5, 126, 143, time limits, 741
266, 270, 327, 490, 706–7 waiver of diplomatic protection, 739
see also Table of reports of Special damages, 741–2
Rapporteurs denial of justice, 734–5
theory of responsibility, 64, 270–1, deprivation of liberty, 735
398–9, 405–6, 417 expropriation measures, 736
aid or assistance for wrongful act expulsion, 735
ARSIWA Article 16, 401–3 interference with freedom of movement,
complicity 735
and international organizations, 410–12 maltreatment, 735
pacta tertiis rule, 409–10 nationalization measures, 736
‘subjective’ element, 405–8 negligence in protection, 735–6

808
 index 809

non-performance of contractual optional, 98

obligations, 736–7 referral to, 601
non-repetition measures, 742 settlement by, 75, 95
pecuniary damages, 741–2 treaty provision, 549, 601, 603, 624–5,
public debts, repudiation/cancellation, 602–3
737 types of, 589–90
reparation, 741–2 undertaking to arbitrate, 695
restitution, 741–2 unilateral, 97–8
rights of aliens, 733 validity of award, 758
state responsibility voluntary, 95, 553–4
acts or omissions giving rise to, 734–8 see also dispute settlement
see also acts or omissions ARSIWA see ILC Articles on the
Draft Articles 1961, 733 Responsibility of States for
elements of responsibility, 734 Internationally Wrongful Acts
Alland, Denis 2001 (ARSIWA)
on sanctions, 706–7 assurance of non-repetition see repetition of
ancillary responsibility see secondary breach
responsibility attribution
Anzilotti, Dionisio bases in ARSIWA, 115
representation theory of indirect cases of, 166
responsibility, 397 corporations see corporations
writings on responsibility, 23–4, 490 direction and control see direction and
applicable law control over wrongful act
‘approximate application’ principle, 109 entities exercising governmental
cause of action distinguished, 603–8 authority see entities exercising
humanitarian law as, 152–3 governmental authority
international law, 100–3 ex post facto see conduct
lex specialis, 103–5 excess of authority see excess of authority
other legal consequences, 108–10 general principles, 113
overview, 99–100 insurrectional movements
peremptory norms, 106–8 see insurrectional movements
‘self-contained regimes’, 103–5 international organizations
UN Charter, 106–8 see international organizations
Arangio-Ruiz, Gaetano process, 113–15
Special Rapporteur, 37–8, 475, 495, secondary responsibility distinguished, 211
501–2, 509, 531–2 state organs see entries at organs
see also Table of reports of Special states see entries at state
Rapporteurs terrorism see terrorism
Arbitral Tribunal ultra vires see excess of authority
Draft Articles 1996, 760 Austin, J. L. (John Langshaw)
terms of reference, 758 philosophy of excuses, 274, 278–9
arbitration authority
ad hoc, 591 definition of ‘governmental authority’,
choice of, 589, 624–5 129–32
class actions, 637–40 exercise in absence of state
compulsory, 97 ARSIWA, 713
consent to, 589, 613–14, 637–9 development of ARSIWA Article 9,
Draft Articles 1996, 758 166–8
force majeure, 295–6 operation of provision, 168–70
imperative, 106–7
investment protection see investment Behrami and Saramati cases
protection contributing state responsibility,
inviolability of undertaking, 695 197–200
limit on recourse to, 602–3 Belli of Alba, Pierino
loss of access to international arbitration, writings on responsibility, 3–6
624–5 Bodin, Jean
multiparty, 637–40 writings on responsibility, 3–4
810 index

Borchard, Edwin M. obligation requiring particular conduct,

Harvard Draft Research, 32 748
writings on responsibility, 24 obligation requiring specified result, 748
Bosnian Genocide case to prevent given event, 748–9
direction and control, 154–6 reparation for see reparation
breach of obligations requirement that obligation be in force,
anticipatory breach, 233–5 746–7
cessation see cessation responsibility see responsibility; state
circumstances precluding wrongfulness responsibility
see justification time
claims see claims ARSIWA, 714
complex breach, 269–73 DARIO 2011, 763
components of, 94 of occurrence, 748–9
composite breach temporal element generally, 240–1
ARSIWA, 714 see also intertemporal law above
character of, 265–8 Broniowski case
determining scope of, 268–9 judicial implementation of responsibility,
DARIO 2011, 764 630–7
continuing breach burden of proof
completion, 264–5 justification and, 320–1
concept, 258–62 Bynkershoek, Cornelius van
instantaneous breach distinguished, writings on responsibility, 11, 15–17
262–4
countermeasures see countermeasures causation see injury
Draft Articles 1996, 746 cause of action
duration, 253–4, 748–9 applicable law distinguished, 603–8
excuses see justification cessation
exhaustion of local remedies, 748 continued duty of performance
existence, 746 distinguished, 464–5
ARSIWA, 714 ‘continuing’ wrongful acts, 462–4
DARIO 2011, 763 obligation of
extending in time, 749 ARSIWA, 717
generally, 93–4 DARIO 2011, 768
instantaneous breach restitution distinguished, 469
concept, 254–8 restoration of legal relations
continuing breach distinguished, 262–4 see restoration of relations
international crimes and delicts, 747 Chorzów principle
international organizations jurisdiction, 599–603
see international organizations Christakis, Théodore
intertemporal law on circumstances precluding
application of, 241–5 wrongfulness, 279–80
and codification of responsibility, circumvention of international obligations
244–5 DARIO 2011, 765, 776
evolutive interpretation of treaties, claims
246–50 aliens see aliens, injury to
Island of Palmas case, 241–2 applicable law see applicable law
and law of treaties, 242–4 on behalf of others
new peremptory norms, 250–1 diplomatic protection see diplomatic
retrospective acceptance of protection
responsibility, 245–6 generally, 566–7
irrelevance of origin of obligation, 746 by international organizations,
justification see justification 593
material element generally, 215–16 by third states, 593
‘non-violation complaints’, 238–9 counterclaims, jurisdiction, 609–14
not extending in time, 748 dispute settlement, 95–9
obligation in force entitlement to claim
ARSIWA, 714, 763 ARSIWA, 719–20
 index 811

concerned states or other entities, development of ARSIWA Article 48,

549–53 365–70
DARIO 2011, 771–2 future development of law of, 389–90
generally, 541–2 invocation of, 370–6
injured state, 542–8 relation to other norms, 376–8
other injured parties, 549 see also peremptory norms
generally, 95 companies see commercial and contract law;
joinder, 669–71 corporations
lapse of, 72–4, 560–3 compensation
loss of right basic principle, 516–17
acquiescence, 558–60 criminal proceedings, 641–3
adjudication of claim, 557–65 double recovery rule, 673–4
ARSIWA, 720 entitlement, 754
DARIO 2011, 772 international courts’ practice, 518–19
effects on related or derivative claims, justification and, 318–20
563–5 loss of profits, 522–3
generally, 557–8 meaning, 754
lapse of claim, 72–4, 560–3 obligation
lapse of time, 560–3 ARSIWA, 718
settlement of claim, 557–65 DARIO 2011, 769
waiver, 558–60 proportionality, 482–4
multiple parties see multiple parties punitive damages, 523–6
nationality of quantification of damage, 519–22
diplomatic protection, 573–80 reservation as to, 751
Draft Articles 1961, 740–1 complex breach see breach of obligations
inadmissibility of claims, 69 compliance with peremptory norms
process, 549–53 as justification
waiver ARSIWA, 716
and acquiescence, 558–60 DARIO 2011, 767
inadmissibility of claim, 70–2 complicity see aid or assistance for wrongful
Monetary Gold principle, 668–9 act
see also arbitration; dispute settlement; composite breach see breach of obligations
remedies conciliation
class actions Draft Articles 1996, 757
investment arbitration, 637–40 Conciliation Commission
coercion Draft Articles 1996, 759–60
considerations as to, 421 task of, 757–8
definition, 419–21 conduct
DARIO 2011, 764, 776 acknowledged and adopted by
generally, 419 international organization
of international organization, 422 DARIO 2011, 714
collective countermeasures acknowledged and adopted by state
use of, 703–6 ARSIWA, 714
collective responsibility see joint or carried out in absence or default of
collective responsibility official authorities see authority
commercial and contract law collective conduct see joint or collective
applicable law, 99–100 responsibility
arbitration, 295–6 directed or controlled by state
concerted conduct, 334–5 see direction and control over
diplomatic protection, 75 wrongful act
exhaustion of local remedies, 70 ex post facto adoption
interest see interest case law, 182
non-performance as to aliens, 736–7 development of ARSIWA Article 11,
see also corporations, investment 181–2
protection Eichmann case, 183
communitarian norms Gab^cı́kovo-Nagymaros case, 186–7
breaches of, 365 Lighthouses Arbitration, 182–3
812 index

conduct (cont.) human rights/humanitarian obligations,

operation of provision, 187–8 691–4
Teheran Hostages case, 183–6 international oversight, 706–11
joint conduct see joint or collective as justification
responsibility ARSIWA, 715
obligations of conduct and result, 220–6 DARIO 2011, 766
consent Draft Articles 1996, 750
as justification generally, 292–5
ARSIWA, 715 limits
DARIO 2011, 765 ARSIWA, 721
Draft Articles 1996, 750 DARIO 2011, 773–4
generally, 283–9 object and scope, 686–8
consular inviolability object of
obligations as to, 696–7 ARSIWA, 721
consular notification and access DARIO 2011, 773–4
as human rights, 592 obligation to refrain from threat or use of
contemporaneity force, 690–1
principle of, 242–3 obligations not affected
continued duty of performance ARSIWA, 721
see obligations DARIO 2011, 774
continuing breach see breach of obligations prohibited countermeasures, 688–90,
continuous nationality 756
corporation, 730 proportionality, 697–9
natural person, 729 ARSIWA, 722
contract see commercial and contract law DARIO 2011, 774
contravention of instructions see excess of Draft Articles 1996, 756
authority separability of dispute settlement
contribution to injury see injury provisions, 694–6
control over wrongful act see direction and by state or international organization
control over wrongful act other than injured state or
co-operation organization
obligation of, 386–9 ARSIWA, 722
corporate criminal responsibility DARIO 2011, 775
non-state actors, 80–1 taking of, meaning, 755
corporations termination
attribution and state-owned corporations, ARSIWA, 722
161–5 DARIO 2011, 775
continuous nationality, 730 generally, 702–3
diplomatic protection, 730 UN Security Council oversight, 706–11
direction and control, 161–5 Crawford, James
state of nationality, 730 Special Rapporteur, 39–40
see also state-owned corporations see also Table of reports of Special
counterclaims Rapporteurs
jurisdiction, 609–14 crimes against humanity
countermeasures charges, 149–50
collective countermeasures, 703–6 claims, 82
conditions communitarian norms, 369
ARSIWA, 722 continuing breach of provisions, 260
DARIO 2011, 774–5 individual responsibility, 79–80
Draft Articles 1996, 755 insurrectional movements, 180–1
generally, 700–2 peremptory norms, 316–17, 380
consular and diplomatic inviolability, see also war crimes
obligations as to, 696–7 criminal responsibility
DARIO 2011, 773–5 compensation, 641–3
dispute settlement provisions, corporate, 80–1
separability of, 694–6 as to human rights see human rights and
generally, 95, 684–6 fundamental freedoms
 index 813

as to humanitarian law see humanitarian refugees, 729

law right to exercise, 728
individual, 79–80 rights in international law, 74–5
international crimes of state, 390 role of, 568–73
Monetary Gold principle, 667–8 scope, 728
shareholders, 730
damage ships’ crews, 731
level for invocation of responsibility, and special rules of international law, 731
54–60 by state of nationality, 728
quantification of, 519–22 stateless persons, 729
damages by third states, 78–9
double recovery rule, 673–4 waiver as to aliens, 739
injury to aliens, 741–2 see also entries at consular; investment
mitigation of, 494–5 protection
punitive, 523–6 direction and control over wrongful act
reservation as to, 751 additional requirements for liability,
de facto organs 416–17
attribution, 124–6 ARSIWA Article 17, 412–14
defunct states Bosnian Genocide case, 154–6
Monetary Gold principle, 666–7 codification, 143–4
‘delegated’ powers question definition, 414–16
human rights and fundamental development of law, 141
freedoms, 134 DARIO 2011, 776
‘delictual capacity’, 62 early cases, 141–3
denial of justice ‘effective control’ and ‘overall control’
aliens, 734–5 distinguished, 146–7
investment protection, 270–1 of international organization, 417–18
deprivation of liberty international organizations, 764
aliens, 735 knowledge of obligation, 416
diplomatic inviolability Nicaragua case, 147–9
obligations as to, 696–7 opposability of obligation, 416
diplomatic protection persons acting on state instruction,
alternatives to, 569, 584–5, 731 144–6
character of, 568–73 standards as to secondary responsibility,
corporations, 730 397–9
countermeasures, 696–7 by state, 144–6, 715
definition, 728 state-owned corporations, 161–5
Draft Articles 2006 see ILC Draft Articles Tadic´ case, 149–54
on Diplomatic Protection terrorism see terrorism
dual nationality, 729 see also coercion by state or other
generally, 567–8 international organization
institution of, 75–7 ‘disposal’
interaction with international law rules, definition, 133–5
731 dispute settlement
in international law, 74–5 as to admissibility of claims, 739–40
by international organizations, 77–8 Draft Articles 1996, 757–8
invocation generally, 95–9
generally, 584–5 separability of provisions, 694–6
human rights, 585–7 see also arbitration
investment protection, 587–92 distress
other routes, 592–3 as justification
legal persons, 730 ARSIWA, 716
local remedies, 580–4, 731 DARIO 2011, 766–7
multiple nationality, 729 Draft Articles 1996, 750–1
nationality of claims, 573–80 generally, 301–5
natural persons, 729 domestic law see internal law
recommended practice, 732 Draft Articles see entries at ILC Draft Articles
814 index

dual nationality executive

diplomatic protection definition, 119–20
claim against state of nationality, 729 expropriation measures
claim against third state, 729 affecting aliens, 736
due diligence expulsion
obligation, 226–32 aliens, 735
Dugard, John extra-judicial implementation of
on diplomatic protection, 75–7, 569–73, responsibility
586 generally, 675–6
on insurrectional movements, 173 self-help measures see self-help measures
on Monetary Gold principle, 663
Dumberry, Patrick federal subdivisions see political
on insurrectional movements and subdivisions
attribution, 178–9 Fitzmaurice, Malgosia
on succession to responsibility, 435–7, on circumstances precluding
440 wrongfulness, 275–6
duty of protection contemporaneity principle, 242–3
negligence as to aliens, 735–6 on law of treaties, 367
force
Eagleton, Clyde obligation to refrain from, 690–1
writings on responsibility, 24–6, 398 force majeure
effective control as justification
definition, 203–5 ARSIWA, 716
Dutchbat case, 205–10 DARIO 2011, 766
‘overall control’ distinguished, 146–7 Draft Articles 1996, 750
test, 156–7 generally, 295–301
Eichmann case fork-in-the-road clauses
ex post facto adoption of conduct, 183 election of remedies, 624–6
‘empowered by the law’ of the state fortuitous event
definition, 132 as justification, 750
entities exercising governmental authority freedom of movement
attribution interference with aliens’, 735
ARSIWA, 713 fundamental freedoms see human rights
Draft Articles 1996, 744 and fundamental freedoms
generally, 126–9
definition of ‘governmental authority’, Gab^cı́kovo-Nagymaros case
129–32 ex post facto adoption of conduct,
‘empowered by the law’ of the state, 186–7
definition of, 132 negative succession rule, 446
erga omnes obligations Gaja, Giorgio
concept, 66–7 on aid or assistance, 405
related concepts, 66–7 on assurances and guarantees, 471–2
European Court of Human Rights on diplomatic protection by third-state
see human rights and fundamental nationals, 78–9
freedoms García-Amador, F. V.
ex post facto adoption of conduct Special Rapporteur, 34–6, 567
see conduct see also Table of reports of Special
exception of non-performance (exceptio Rapporteurs
inadimpleti contractus) theory of responsibility, 275–6
ILC Draft Articles 1961, 678–82 general international law see international
self-help measures, 678–82 law
excess of authority Gentili, Alberico
attribution writings on responsibility, 3–4, 6–8
ARSIWA, 713 Germany
generally, 136–40 reunification and negative succession
excuses for breaches of obligations rule, 449–51
see justification Versailles Treaty and responsibility, 27–8
 index 815

good offices consular notification and access as, 592

Draft Articles 1996, 757 continuing breach, 261–2, 463
governing law see applicable law contributing state responsibility,
governmental authority see authority 197–203
Grotius, Hugo countermeasures, 689, 691–4, 704–5
writings on responsibility, 3–4, 8–11, crimes against humanity see crimes
378–9 against humanity
guarantee of non-repetition see repetition of criminal responsibility, 79
breach damage quantification, 519–22
guarantees damage requirement, 55, 57
joint or collective responsibility, damages, punitive, 526
354–5 definition, 733
‘delegated’ powers question, 134
Hague Codification Conference 1930 denial, 53–4
development of law of responsibility, derogation, 291
28–32 diplomatic protection, 585–7
and Harvard Draft Research, 32 dispute settlement, 98
harm ‘equivalent’ protection by international
level for invocation of responsibility, organizations, 430–3
54–60 erga omnes obligations, 67
Hart, H. L. A. (Herbert Lionel Adolphus) evolutive interpretation, 248–50
distinction between primary and independent responsibility, 335–6
secondary rules, 64 ‘injured state’, meaning of, 535–6
Harvard Draft Research instantaneous breach, 258
1929 Draft, 32–3, 123–4, 397–8 insurrectional movements, 173–4, 180
1961 Draft, 34–5 ‘integral obligations’, 547
and Hague Codification Conference interest
1930, 32 post-judgment, 535–6
Heffter, August Wilhelm judicial implementation of responsibility,
writings on responsibility, 21–2 630–7
Higgins, Rosalyn level of responsibility, 84
on assurances and guarantees, 477, 479 lex specialis, 104–5
on non ultra petita rule, 628–9 ‘material damage’, 55
on state responsibility, 328 ‘military necessity’, 315
human rights and fundamental freedoms ‘moral damage’, 55, 58
‘abuse of rights’, meaning, 734 non-state party responsibility, 549
aid or assistance, 410 peremptory norms, 384, 387, 390
alien torts, 81–3 primary and secondary obligations
of aliens, 733 distinguished, 216, 221
as alternative to diplomatic protection, state contribution to international
569, 584–5 organizations, 346–54
applicable law, 100–1 state responsibility for acts of
applicable obligations, 460–1 subdivisions, 124
assurances and guarantees, 474 systematic remedies, 630–7
attribution time of start of state liability, 433–4
dual, 204 treaty mechanisms, 596
joint, 196–7 use of force as to violations, 704–5
Broniowski case, 630–7 violation, 618–19, 682, 709
claims, 100 waiver, 287
communitarian norms, 364, 366–8, humanitarian intervention
370–6 aid or assistance, 401
compensation consent, 284
obligation to make reparation, 481 distress, 302–3, 305
proportionality, 482–4 force majeure, 297–8
quantification of damage, 519–22 peacekeeping by international
right of election, 508 organizations, 193–7
consent to waiver, 287 recourse to use of force, 277–8
816 index

humanitarian law implementation of responsibility see claims;

alignment with state responsibility, 155 diplomatic protection; extra-
applicable law, 152–3 judicial implementation of
conduct of private persons, 360–1 responsibility; invocation of
countermeasures, 688–9, 691–4 responsibility; judicial
intransgressible rules of, 291–2 implementation of responsibility
jurisdictional immunity of state, 467–8 inadmissibility of claims see invocation of
lawfulness of forcible, 315 responsibility
level of responsibility, 84 indemnities
lex specialis, 291–2 joint or collective responsibility, 354–5
‘military necessity’, 315 independent responsibility
necessity, 306–7 exceptions, 336–9
peremptory norms, 382–3 principle, 333–6
use of force, 708–9 indirect responsibility
violation, 147–9, 618–19, 641, 682 Anzilotti’s representation theory of,
see also crimes against humanity 397
individual criminal responsibility
ILC non-state actors, 79–80
development of law of responsibility, individuals
35–44 responsibility of
first reading, 1949–1996, 35–9 ARSIWA, 723
responses to ARSIWA, 42–4 injury, 682–4
second reading, 1998–2001, 39–42 to aliens see aliens, injury to
ILC Articles on the Responsibility of States causation
for Internationally Wrongful Acts concurrent causes, 495–500
2001 (ARSIWA) contribution to injury, 500–3
bases for attribution, 115–16 expanded scope of, 492–4
concept of state responsibility, 49–51 mitigation of damage and reparation,
content, 45–9 494–5
development during second reading claims see claims
1998–2001, 39–42 countermeasures see countermeasures
General Assembly resolutions as to, definition, 485–6
724–7 ‘injured state’
interaction with UN Charter, 723 meaning, 752–3
responses to, 42–4 plurality, 503–5
text, 712–23 invocation of responsibility see invocation
typology of state responsibility, 51–4 of responsibility
ILC Draft Articles on Diplomatic Protection joint or collective contribution, 355–8
2006 ‘legal injury’, 487
specific provisions see diplomatic material and moral injury, 486–7
protection non-repetition measures, 742
text, 728–32 plurality of injured states
ILC Draft Articles on State Responsibility ARSIWA, 720
1996 reparation see reparation
development during first reading secondary responsibility, 429–30
1949–1996, 35–9 to shareholders, 730
text, 743–60 instantaneous breach see breach of
ILC Draft Articles on the Responsibility of obligations
International Organizations 2010, Institut de Droit International
777 work on state responsibility, 32, 328
lex specialis, 777 insurrectional movements
scope of articles, 761 attribution
specific provisions see international ARSIWA, 713
organizations creation of new government, 174–6
terminology, 761 creation of new state, 176–9
text, 761–77 development of ARSIWA Article 10,
and United Nations Charter, 777 170–4
 index 817

Draft Articles 1996, 745–6 existence, 763

failed insurgency, 179–81 requirement that obligation be in
imputability of acts or omissions, 738 force, 763
‘integral obligations’ serious breach, 770–1
human rights and fundamental time, 763
freedoms, 547 coercion of, 422
interest complicity, 410–12
basic principle, 531–3 conduct
calculation, 536–8 acknowledged and adopted, 763
period in which payable, 534–6 joint or collective, 343–54
pre-judgment and post-judgment interest contributing state responsibility
distinguished, 533–4 Al-Jedda case, 200–3
rate, 536–8 Behrami and Saramati cases, 197–200
reparation case law, 197
ARSIWA, 718 countermeasures against
DARIO 2011, 770 conditions, 774–5
internal law DARIO 2011, 773–5
irrelevance as justification limits, 773–4
ARSIWA, 717 object of, 773–4
internal subdivisions see political obligations not affected, 774
subdivisions proportionality, 774
international crimes by states or international organizations
consequences, 756 other than injured state or
development of Draft Article 19, organization, 775
390 termination, 775
Draft Articles 1996, 756–7 diplomatic protection by, 77–8
obligations for all states, 756–7 direction and control of, 417–18
specific consequences, 756 Draft Articles see ILC Draft Articles on the
international forums Responsibility of International
oversight of countermeasure, 706–11 Organizations 2010
international law early theory and practice, 190–3
as applicable law ‘effective control’
ARSIWA, 723 definition, 203–5
DARIO 2011, 777 Dutchbat case, 205–10
generally, 100–3 ‘equivalent’ human rights protection by,
diplomatic protection see diplomatic 430–3
protection functional protection by, 593
peremptory norms see peremptory norms imputability of acts or omissions, 738
International Law Commission see ILC internationally wrongful acts
‘international obligations of the state’ aid or assistance for, 764, 775–6
meaning, 734 cessation, 768
international organizations characterization, 762
accountability, 84 circumvention of international
agents obligations, 765, 776
conduct, 762–3 coercion by state or other international
contravention of instructions, 763 organization, 764, 776
excess of authority, 763 compensation, 769
meaning, 761 continued duty of performance of
attribution obligation, 768
ARSIWA, 744 contribution to injury, 770
to contributing states, 197–203 countermeasures see countermeasures
DARIO 2011, 745, 762–3 against above
secondary responsibility distinguished, direction and control over, 764, 776
211 DARIO 2011, 764–5
breach of international obligation elements, 762
composite act, 764 fulfilment of reparation obligation, 770
DARIO 2011, 763–4 interest, 770
818 index

international organizations (cont.) international responsibility

international organization member of as state responsibility, 3
other international organization, internationally wrongful acts
765 aid or assistance for see aid or assistance
justification, 765–7 for wrongful act
legal consequences, 768 of another state
non-repetition, 768 responsibility, 749–50
relevance of rules of organization, 768 attribution see attribution
reparation, 768–70 cessation
responsibility, 723, 762 ARSIWA, 717
restitution, 769 Draft Articles 1996, 753
satisfaction, 769 characterization
scope of obligations, 768 ARSIWA, 712
state connection with, 775–7 Draft Articles 1996, 743
state member of organization, 777 circumstances precluding wrongfulness
joint or collective responsibility, see justification
343–54 coercion by other state
meaning, 761 ARSIWA, 715
organs continued duty of performance
conduct, 745, 762–3 see obligations
contravention of instructions, 763 countermeasures see countermeasures
excess of authority, 763 customary international law, 752
meaning, 761 direction and control over see direction
placed at disposal of other and control over wrongful act
organization, 762 elements
placed at disposal of state, 744 ARSIWA, 712
peacekeeping, 193–7 Draft Articles 1996, 743
reparation by ILC Articles see ILC Articles on the
DARIO 2011, 768–70 Responsibility of States for
forms of, 769 Internationally Wrongful Acts
fulfilment of obligation, 770 2001 (ARSIWA)
obligation, 768 international organizations see ILC Draft
responsibility Articles on the Responsibility of
of individuals, 777 International Organizations 2010;
responsibility of international organizations
applicability of international law rules, justification see justification
777 legal consequences
ARSIWA, 723 ARSIWA, 717
connection with act of state or other Draft Articles 1996, 751–3
international organization, 764–5 lex specialis see lex specialis
DARIO 2011, 761–77 non-repetition
implementation, 771–5 ARSIWA, 717
invocation, 771–3 reparation
rules ARSIWA, 717
meaning, 761 responsibility
relevance, 768 of any state, 743
secondary responsibility applicability of international law rules,
acceptance, 428–9 723, 777
attribution distinguished, 211 ARSIWA, 712
basic rule, 423–4 Draft Articles 1996, 743
exceptions, 428–30 of individuals, 723
injured party reliance, 429–30 of international organizations, 723
judicial confirmation of basic rule, obligations arising from see
424–7 obligations
member state responsibility, 422–3 plurality of responsible states, 720
separate personality, abuse of, 430–4 see also breach of obligations,
states, attribution to, 188–90 international crimes
 index 819

interpretation of treaties ARSIWA, 720

intertemporal law and, 246–50 DARIO 2011, 772
intertemporal law see breach of obligations prerequisites for, 54–62
interventions see humanitarian primary and secondary rules
intervention distinguished, 64–6
investment protection responsibility, concept of, 62–3
as alternative to diplomatic protection, by state other than injured state or
569 international organization
applicable law, 100–2 ARSIWA, 720–1
attribution, 164 DARIO 2011, 772–3
as basis for law of state responsibility, 24,
34–5 Jagota, S. P.
Chorzów principle, 600–3 on necessity, 306–7
claims, 100 joint or collective responsibility
class actions, 630, 637–40 attribution to multiple states, 333–6
compensation, 519, 620–1 breach of communitarian norms
consent, 287 see communitarian norms
counterclaims, 611–14 claims, 358–61
denial of justice, 270–1 contribution between persons collectively
diplomatic protection and, 569, 587–92 responsible, 355–8
exhaustion of local remedies, 581–2 generally, 325
fork-in-the-road clauses, 624–6 guarantees and indemnities, 354–5
‘hybrid’ character, 102 historical development, 326–8
interest, 535–8 implication in act of another state, 336–9
investor-state arbitration, 74–5, 128–9 independent responsibility
nationality of claims, 577–80 exceptions, 336–9
obligation to make reparation, 481 principle, 333–6
primary rules, 33 international organizations, 343–54
recourse to, 549 joint organs, 339–41
secondary obligations applicable, 460–1 other bases for solidary responsibility,
see also arbitration 341–3
invocation of responsibility private law analogies, 328–32
admissibility of claims see claims by states, 333
‘delictual capacity’ principle, 62 see also secondary responsibility;
erga omnes obligations see erga omnes succession to responsibility
obligations judges
formal requirements, 67–8 ad hoc appointment, 671–2
inadmissibility of claims see claims judicial implementation of responsibility
international organizations, 771–3 class actions in investment arbitration,
level of harm, damage or injury required, 637–40
54–60 criminal compensation, 641–3
liability, concept of, 62–3 election of remedies
multiple parties see multiple parties claimant’s right to elect, 621–4
notice of claim election during proceedings, 621–4
ARSIWA, 720 fork-in-the-road clauses, 624–6
DARIO 2011, 771 non ultra petita rule, 626–9
‘objective responsibility’ principle, 60–2 generally, 598
obligations human rights see human rights and
erga omnes see erga omnes obligations fundamental freedoms
primary and secondary distinguished, jurisdiction
64–6 Chorzów principle, 599–603
plurality of injured states or international counterclaims, 609–14
organizations distinction between cause of action and
ARSIWA, 720 applicable law, 603–8
DARIO 2011, 772 remedial discretion, 615–21
plurality of responsible states or judiciary
international organizations definition, 121–3
820 index

jurisdictional immunity of state Lighthouses Arbitration

humanitarian law, 467–8 ex post facto adoption of conduct,
justice 182–3
denial see denial of justice negative succession rule, 443–5
justification local remedies
ARSIWA, 715–17 diplomatic protection, 731
Austin’s philosophy of excuses, 274, exceptions to local remedies rule, 731
278–9 exhaustion of
burden of proof, 320–1 diplomatic protection, 580–4, 731
category of ‘circumstances precluding Draft Articles 1961, 738–9, 748
wrongfulness’, 274–80 inadmissibility of claims, 69–70
compensation and, 318–20 loss of profits
consequences of invoking compensation, 522–3
ARSIWA, 717 Lowe, Vaughan
DARIO 2011, 767 on circumstances precluding
Draft Articles 1996, 750–1 wrongfulness, 280
DARIO 2011, 765–7
generally, 274 maltreatment
irrelevance of internal law aliens, 735
ARSIWA, 717 mediation
obligations arising from peremptory Draft Articles 1996, 757
norms, 315–18 ‘military necessity’
reservation as to compensation for treaty provision, 315
damage, 751 Monetary Gold principle
termination or suspension of obligations, application, 660–6
281–3 criminal prosecution, 667–8
types of, 283–315 defunct states, 666–7
exceptions, 666
Lauterpacht, Hersch generally, 655–7
‘approximate application’ principle, 109 jurisprudence, 659–60
on interest, 536 scope, 657, 664–5
on reparation, 537–8 waiver of claim, 668–9
work on state responsibility, 34 multiple nationality
law of treaties diplomatic protection
as applicable law, 281 claim against state of nationality, 729
exception of non-performance, 678–9, 681 claim against third state, 729
intertemporal law and, 242–4 multiple parties
law of state responsibility distinguished, ad hoc judges, 671–2
684 claimants, 645–8
obligations under, 216–17 double recovery rule, 673–4
reports on, 367 generally, 644–5
suspension or termination of treaty, 684 intervention by third states, 650–5
Vienna Convention see Table of treaties see also Monetary Gold principle
legal persons joinder of claims, 669–71
diplomatic protection, 730 respondents, 648–50
legislature
definition, 120–1 Namibian independence
imputability of acts or omissions, 737 negative succession rule, 453–5
lex specialis national law see internal law
applicable law, 103–5 nationality of claims see claims
ARSIWA, 722 nationalization measures
Draft Articles 1996, 752 affecting aliens, 736
liability, concept natural persons
of invocation of responsibility, 62–3 continuous nationality, 729
liberty diplomatic protection, 729
deprivation of aliens’, 735 state of nationality of, 728
 index 821

necessity ‘objective responsibility’ principle, 60–2

as justification obligations
ARSIWA, 716 acts or omissions see acts or omissions
DARIO 2011, 767 arising from peremptory norms, 315–18
Draft Articles 1996, 751 breach see breach of obligations
generally, 305–15 of cessation and non-repetition
negative succession rule ARSIWA, 717
case law, 442–3 classification of, 219–20
critiques of, 438–42 of conduct and result, 220–6
early theory and practice, 437–8 continued duty of performance
Gab^cı́kovo-Nagymaros case, 446 ARSIWA, 717
generally, 435–7 cessation distinguished, 464–5
Lighthouses Arbitration, 443–5 DARIO 2011, 768
state practice of co-operation, 386–9
dissolution of Yugoslavia, 451–2 due diligence, 226–32
German reunification, 449–51 illusory, 235–8
Namibian independence, 453–5 ‘integral obligations’, 547
role of, 447–8 knowledge of, 416
separation from USSR, 452–3 of non-assistance, 385–6
succession where predecessor ceases to of non-recognition, 381–5
exist, 448–9 opposability of, 416
succession where predecessor of prevention, 226–32
continues to exist, 452 primary
summary of issues, 455 autonomy of, 216–17
negotiation secondary obligations distinguished,
Draft Articles 1996, 757 64–6
new government termination of, 251–3
creation of, 174–6 procedural, 232
new state reparation see reparation
creation of, 176–9 scope of
Nicaragua case ARSIWA, 717
direction and control, 147–9 secondary
non-assistance primary obligations distinguished, 64–6
obligation of, 385–6 serious breach see peremptory norms
non-performance exception substantive, 232
(exceptio inadimpleti contractus) suspension as self-help measure, 682–4
ILC Draft Articles 1961, 736–7 termination or suspension
self-help measures, 678–82 as justification, 281–3
non-recognition of primary obligation, 281–3
obligation of, 381–5 O’Connell, Daniel P.
non-repetition on succession to responsibility, 435–6, 442
assurances and guarantees, 755 officials
injury to aliens, 742 imputability of acts or omissions, 737
obligation of organs acting outside competence or
ARSIWA, 717 instructions
DARIO 2011, 768 attribution, 745
non-state actors organs of another state
claims against, 81–3 attribution, 745
corporate criminal responsibility, organs of insurrectional movement
80–1 attribution, 745–6
individual criminal responsibility, organs of international organization
79–80 see international organizations
non ultra petita rule organs of the state
election of remedies, 626–9 attribution
norms see communitarian norms; ARSIWA, 712
peremptory norms Draft Articles 1996, 743
822 index

organs of the state (cont.) persons exercising governmental authority

irrelevance of position in state locator 744
organization, 744 persons not acting on behalf of state
other empowered entities or persons attribution, 745
see entities exercising political subdivisions
governmental authority definition, 123–4
responsibility generally, 116–18 imputability of acts or omissions,
de facto, 124–6 738
definition, 118 prevention of event
‘delegated’ powers question, 134 breach of obligation of, 226–32, 749
imputability of acts or omissions, 737 primary obligation
and international organizations continuation after restoration of
see international organizations relations, 461
joint or collective responsibility, 339–41 primary rules
see also entities exercising governmental autonomy of, 216–17
authority secondary rules distinguished, 64–6
organs placed at disposal of another state profits, loss of
attribution compensation for, 522–3
additional requirements, 135–6 proof see burden of proof
ARSIWA, 713 proportionality
Draft Articles 1996, 744 compensation, 482–4
generally, 132–3 of countermeasures see
definition of ‘disposal’, 133–5 countermeasures
organs placed at disposal of international protection, duty of see duty of protection
organization public debts
attribution repudiation/cancellation measures
DARIO 2011, 762 affecting aliens, 737
‘overall control’ Pufendorf, Samuel von
‘effective control’ distinguished, writings on responsibility, 3–4, 11–15
146–7 punitive damages
as compensation, 523–6
pacta tertiis rule
complicity and, 409–10 Rachel, Samuel
Pauwelyn, Joost writings on responsibility, 11
instantaneous and continuing acts refugees
distinguished, 262–4 diplomatic protection, 729
peacekeeping see humanitarian relief operations see humanitarian
intervention intervention
pecuniary damages remedies
injury to aliens, 741–2 election of see judicial implementation of
peremptory norms responsibility
applicable law, 106 judicial discretion as to, 615–21
compliance as justification reparation and, 506–10
ARSIWA, 716 see also compensation; interest;
DARIO 2011, 767 restitution; satisfaction
consequences of serious breach reparation
generally, 380–1 assurances and guarantees against
obligation of co-operation, 386–9 repetition of breach distinguished,
obligation of non-assistance, 385–6 475–6
obligation of non-recognition, available forms of, 506–8
381–5 basic principle, 480–1
definition of, 378–80 claims see claims
serious breach contribution to injury
ARSIWA, 719 ARSIWA, 719
DARIO 2011, 770–1 DARIO 2011, 770
particular consequences, 719, 770–1 election, right of, 508–9
see also communitarian norms entitlement, 753
 index 823

forms of succession to see negative succession

ARSIWA, 718 rule
DARIO 2011, 769 wrongful acts see internationally
see also compensation; restitution; wrongful acts
satisfaction see also state responsibility
‘full’ reparation restitution
ARSIWA, 481–3 basic principle, 510–11
case law, 483–5 cessation distinguished, 469
generally, 94 disproportionate burden of, 514–15
hierarchy of, 509–10 flexible approach to, 515–16
interest see interest forms of, 511–12
by international organization impossibility of, 512–13
see international organizations injury to aliens, 741–2
mitigation of, 494–5 in kind, 754
obligation limitations, 512–15
ARSIWA, 717 obligation
DARIO 2011, 768 ARSIWA, 718
fulfilment, 770 restoration of relations
remedies and, 506–10 assurances and guarantees against
right of election, 508–9 repetition see repetition of breach
see also injury; remedies cessation of breach see cessation
repetition of breach continuation of primary obligation,
assurances and guarantees against 461
appropriateness of, 476–9 generally, 459–60
generally, 469 legal effects of breach, 460–1
obligation to offer, 469 secondary obligations applicable,
reparation distinguished, 475–6 460–1
rescue operations see humanitarian retorsion
intervention use of, 676–8
responsibility rights
and accountability, 83–5 aliens see aliens, injury to
concept of, 62–3 human rights see human rights and
criminal responsibility see criminal fundamental freedoms
responsibility injury to see injury
in early international law writings, 4–20 Riphagen, William
Hague Codification Conference 1930 Special Rapporteur, 36–7, 464, 475
see Hague Codification Conference see also Table of reports of Special
1930 Rapporteurs
Harvard Draft Research see Harvard Draft rules
Research primary and secondary rules
historical development, 3–44 distinguished, 64–6
ILC’s work on see ILC Articles on ‘rules of the organization’
Diplomatic Protection 2006; ILC meaning, 761
Draft Articles on State
Responsibility 1996 satisfaction
implementation see claims, diplomatic basic principle, 527
protection, invocation of case law, 529–30
responsibility entitlement, 754
independent responsibility forms of, 527–9, 754
see independent responsibility limitations, 530–1
indirect responsibility see indirect obligation
responsibility ARSIWA, 718
nineteenth- and early twentieth-century DARIO 2011, 769
developments, 20–35 secondary responsibility
retrospective acceptance, 245–6 aid or assistance for breach see aid or
secondary responsibility and attribution assistance for wrongful act
distinguished, 211 attribution distinguished, 211
824 index

secondary responsibility (cont.) state direction and control see direction and
direction and control see direction and control over wrongful act
control over wrongful act state of nationality
of international organizations claims on behalf of aliens, 740–1
see international organizations of corporation, 730
restoration of relations, 460–1 definition, 728
scope of, 395–6 diplomatic protection by, 728
scope of state responsibility, 395–9 of natural person, 728
secondary rules state of necessity see necessity
primary rules distinguished, 64–6 state officials see officials
‘self-contained regimes’ state organs see entries at organs
lex specialis and, 103–5 state-owned corporations
self-defence direction and control, 161–5
as justification state responsibility
ARSIWA, 715 acts or omissions giving rise to see acts or
DARIO 2011, 765 omissions
Draft Articles 1996, 751 concept, 49–51
generally, 289–92 as to conduct of international
self-help measures organization, 775–7
countermeasures by injured state convention, 90–2
see countermeasures critiques of
exception of non-performance (exceptio governmental, 85–7
inadimpleti contractus), 678–82 scholarly, 87–90
retorsion, 676–8 direction and control see direction and
suspension of obligations, 682–4 control over wrongful act
serious breach of obligations under Draft Articles 1961 see ILC Draft
peremptory norms see peremptory Articles on State Responsibility
norms 1961
shareholders Draft Articles 1996 see ILC Draft Articles
diplomatic protection, 730 on State Responsibility 1996
direct injury to, 730 ILC Articles 2001 see ILC Articles on the
Shelton, Dinah Responsibility of States for
on punitive damages, 526 Internationally Wrongful Acts
ships’ crews 2001 (ARSIWA)
diplomatic protection, 731 international responsibility seen as, 3
Simma, Bruno investment protection as basis for law of,
on assurances and guarantees, 469–70 24, 34–5
on communitarian norms, 372–4 invocation see invocation of responsibility
on erga omnes obligations, 389 law of treaties distinguished, 684
on exception of non-performance, 681 terminology, 51–62
on insurrectional movements, 173 typology, 51–4
on joint-and-several liability doctrine, 331 and UN Charter see United Nations
on ‘legal injury’, 487 Charter
on multiple responsibility, 328–9 stateless persons
on obligations arising from peremptory diplomatic protection, 729
norms, 317 Suárez, Francisco
on right to take countermeasures, 105 writings on responsibility, 3–4
on suspension of obligations, 682 successor states see negative succession rule
Soviet Union, separation from
negative succession rule, 452–3 Tadic´ case
state direction and control, 149–54
absence of see authority Tams, Christian J.
creation of new, 176–9 on right of claim, 564–5
see also negative succession rule on suspension of obligations, 682
injured see injury Teheran Hostages case
jurisdictional immunity, 467–8 ex post facto adoption of conduct,
see also third state 183–6
 index 825

terrorism and ARSIWA, 723

direction and control and DARIO 2011, 777
bases of responsibility, 157–61 and Draft Articles 1996, 723
effective control test, 156–7 United Nations General Assembly
Textor, Johann Wolfgang resolutions as to ARSIWA, 724–7
writings on responsibility, 11 United Nations Security Council
third state oversight of countermeasure, 706–11
diplomatic protection by, 78–9 use or threat of force
diplomatic protection claims against, 729 obligation to refrain from, 690–1
functional protection by, 593 USSR, separation from
imputability of acts or omissions, 738 negative succession rule, 452–3
intervention in multi-party claims, 650–5
see also Monetary Gold principle Vattel, Emerich de
threat or use of force writings on responsibility, 18–20, 76, 170,
obligation to refrain from, 690–1 181, 569–70
time Vitoria, Francisco de
breach of obligation see breach of writings on responsibility, 3–4
obligations
contemporaneity principle, 242–3 waiver of claim see claims
intertemporal law see breach of war crimes
obligations charges, 149–50
start of state liability, 433–4 Wheaton, Henry
submission of claims, 741 writings on responsibility, 20–1
tort Whiteman, Marjorie M.
alien torts, 81–3 on interest, 537
treaty interpretation Wolff, Christian
intertemporal law and, 246–50 writings on responsibility, 11, 17–19
Treaty of Versailles 1919 wrongfulness
German responsibility, 27–8 circumstances precluding see justification
Triepel, Heinrich internationally wrongful acts
writings on responsibility, 22–3 see internationally wrongful acts

ultra vires see excess of authority Yugoslavia, dissolution of

unilateral self-help measures see self-help negative succession rule, 451–2
measures
United Nations Charter Zouche, Richard
applicable law, 106 writings on responsibility, 3–4, 11, 11–12