G. State Responsibility

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1 G. State Responsibility Nature - The law on SR is concerned with the incidence and consequences of unlawful acts by states. Shaw: it is concerned with second-order issues the procedural and other consequences flowing from a breach of a substantive primary rule of international law - Crawford and Olleson: the law of SR deals with 3 questions: 1 Breach: Has the State breached of an international obligation? 2 Consequence: What are the consequences of the breach in terms of cessation and reparation? 3 Reparations: Who may seek reparation or otherwise respond to the breach, and how? The ILC Articles - The law on SR has been largely articulated by the ILC in three texts (ARSIWA, ARIO and ADP), most importantly the ILC Articles on Responsibility of States for International Wrongful Acts (ARSIWA) They have not yet been reduced to treaty form, but are much cited as authority and as an expression of customary law on SR! Roberto Ago: the 3 ILC projects focused on secondary rules as distinct from the primary obligations whose disregard gives rise to responsibility: 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 consequences of the violation. Trapp: Ago therefore depoliticizes the discourse. Secondary rules are therefore to identify breaches the consequences of breaches, just like the law of treaties. Ago s primary vs secondary rule distinction carried through until GA Resolution 56/83 (2001) --- commends [the ILC Articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action Commentary: The ILC Articles were 45 years ( ) in the making and highly contentious. Note that 1) there is no general treaty on State responsibility 2) The ILC project was one of codification and progressive development: Not every article is necessarily CIL and the ICJ has yet to consider them! **Crawford & Olleson: At the 59th session of the General Assembly in 2004 the views expressed by delegations ranged across a broad spectrum but revealed essentially two opposing positions. Given the substantial number of States in favour of

2 further postponement of the question (whether for a limited period, or permanently), no immediate decision on the question of convening a diplomatic conference for the purposes of concluding a convention could be taken. i The Convention view (Russia; Cuba): that the only appropriate means by which to reflect the importance of the Articles was for them to be transformed into a convention. ii The 2001 commendation view (UK; USA; Finland; Australia; Canada; NZ): that the action of the General Assembly in 2001 in commending the Articles to the attention of governments was sufficient and that no further action was necessary or desirable. The UI emphasized the fragility of the compromises reached in the final text of the Articles, and warned against the reopening of old and fruitless debates which could lead to the unravelling of the text and a convention which would receive few ratifications. The USA strongly opposed any moves towards a diplomatic conference to adopt a convention, and emphasized the important influence that the Articles are already exerting in their present form as a guide for States and tribunals. Australia (on behalf also of Canada and New Zealand) which opposed the adoption of a convention on the basis that it would be too risky, but which proposed that an appropriate status could be given to the Articles if they were adopted as a resolution by the General Assembly. Italy felt that a convention would not be adequate to preserve the achievement of the ILC; international practice should be allowed to further contribute to the development of customary international law Switzerland thought it premature to move towards an international convention; more time should be allowed for the law to develop on the basis of the Articles In any event it is clear that litigants are increasingly relying on the Articles and commentaries, and that international courts and tribunals are treating them as a source on questions of State responsibility: Wall etc. Thus there is an ongoing process of consolidation of the international rules of State responsibility as reflected in the Articles. In many cases (eg attribution, continuing wrongful acts, the components of reparation) the Articles have been generally taken to reflect customary international law. But references, direct or indirect, have also been made to other more controversial provisions, including Articles 40, 46, and 51.

3 At present the Articles are performing a constructive role in articulating 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 s replicating the ILC s 40 years of work on the subject, perhaps to lesser effect, this seems to be the only way forward. In the meantime, it may be expected that the position of the Articles as part of the fabric of general international law will be further consolidated and refined through their application by international courts and tribunals. Allott: The long story of the work of the International Law Commission on the topic of state responsibility may be judged on two levels - the sociological and the analytical i ii Sociological level: Sociologically, it is an exceptionally vivid illustration of the bureaucratization of international society. Government officials, and the mentality of government officials, have gained control over the development of international law Analytical level: The aspect of the draft articles on state responsibility that demands our particular attention is their fundamental structural feature the postulation of a concept of "responsibility-arising-from-wrongfulness" distinct from the wrongful act and from the consequences of a wrongful act. **The dangerous fiction of SR: To determine the legal content of responsibility is to create a category between wrongdoing and liability for its consequences. This category is not only unnecessary but dangerous since it tends, like all concepts, to take on real existence. It tends itself to become a cause of new and specific real world effects. Thus the objection to the notion of responsibility is not an insignificant technical or analytical objection. It is an objection to a particular intellectual structure which has the most serious substantive consequences. Two especially vicious consequences result from using responsibility as a general and independent category in international law. i **The unmoral state: It consecrates the idea that wrongdoing is the behaviour of a general category known as "states" and is not the behaviour of morally responsible human beings.

4 The subjects of international law, in the sense of those for whose benefit the law assigns all rights and duties, are the peoples of the world. The wrongful act of a state is the wrongful act of one set of human beings in relation to another set of human beings!! Thus the effect of interposing responsibility between a wrongful act and liability for its consequences is more than conceptual or structural. Its substantive consequence is that those human beings who implement the law's rights and duties are able to perceive themselves, on the one hand, as entitled to implement the state's rights and duties and, on the other hand, as bringing about responsibility in the state if they implement them unlawfully. The moral effect of the law is vastly reduced if the human agents involved are able to separate themselves personally both from the duties the law imposes and from the responsibility which it entails!! Such an objection to the consecration of the new conceptual category called state responsibility may seem too theoretical or idealistic or both. It is not. Such a concept of responsibility enters the system at the critical point at which the effectiveness of a system of obligation is liable to be determined, namely the point at which the system responds to a breach of obligation. (The irony of international crimes) An ironic consequence of introducing a concept of international responsibility is that it necessitates the possibility of attaching liability in exceptional cases to individual human beings by the addition of another category, the socalled international crime. The irony of such a proposal lies in the fact that such criminal behaviour is precisely the behaviour for which collective, and not individual, liability is more appropriate. To attach liability to individual human beings in such cases is the mirror image of attaching ordinary liability to the notional state. Each leaves the moral force of the law in its weakest possible state. ii **The state beyond law: If responsibility exists as a legal category, it must be given legal substance. In particular, general conditions of responsibility have to be created which are then applicable to all rights and duties. The net result is that the deterrent effect of the imposition of responsibility is seriously compromised, not only by notionalizing it (the first vicious consequence) but also by

5 leaving room for argument in every conceivable case of potential responsibility (the second vicious consequence). a b c (Thought experiment) The title to chapter five (circumstances precluding wrongfulness) may be an example of a single phrase which could destroy the possibility of a true international society The net effect of chapter five is that any behaviour covered by the terms of the exceptions would be lawful. ** It is possible to apply a simple test to chapter five. Imagine that in a municipal law system the same exceptions were available to the government in its dealings with individual citizens, with no provision for the control of their exercise by regular courts of law or through democratic accountability. This thought experiment leads to a simple conclusion - that such provisions are the very negation of the rule of law. Indeed, they contradict the very idea of law in society Among the clearest lessons of our collective experience is that the concept of state necessity is the most persistent and formidable enemy of a truly human society!!!!! Three responses from the law: *Rule of Law: Internally, the state has specific legal powers, like any other subject of the law. It must prove its powers and is kept strictly within the limits of those powers. If it needs more powers, they must be conferred specifically by the regular legislative process. The admittedly exceptional requirements of the state are met by conferring exceptional powers and by modifying the legal obligations of the state on a case-by-case basis, not by placing the state in an exceptional position in its general relation to law or by making it "responsible" before the law in some unique sense!! The International Law Commission would now like to tell governments that states may, in appropriate circumstances, regard themselves as above the law Constitutionalism: The state obtains its powers from the constitution and nowhere else. There is no written international constitution there is little hope of the International Law Commission in its present form undertaking such a task in an appropriate spirit. No more effort would have been expected from the servants of a Tudor monarch in England or of a Bourbon monarch in France. Fundamental human rights: The ILC s definition of jus cogens prevents the peremptory norm from performing adequately the function of fundamental rights In the meantime, peremptory norms are an unconvincing limitation on the power of states to set aside the law in the

6 name of exceptional circumstances. The peoples of the world are likely to gain very little reassurance from the concept of peremptory norms as a defence against the abuses of power by governments acting in the name of states in the current state of international law. As if the defence of state necessity were not enough to destroy any possibility of an international rule of law, chapter five of part one of the draft articles would create two more universal exceptions to state responsibility called "selfdefence" and "countermeasures in respect of an internationally wrongful act. These two exceptions amount to something akin to self-help. Self-help means that the subjects of law take the enforcement of the law into their own hands. It is distinguishable in principle from anarchy only in that those taking such action may claim that they are acting to assert a legal right. Self-help is indistinguishable from anarchy in practice if it is regarded by the subjects of the law as the normal sanction of the law. Law obliges or it is not law. If the subjects of the law are able to regard the interpretation and application of the law as a matter for their judgment, then law is not an objective limitation on their behaviour. The growth of the concept of countermeasures in international law has been a troubling development. The practice of retaliation is as old as relations between states. Like presocietal or nonsocietal or immature human beings, states have always been inclined to see will and force as the natural poles of their struggle to survive. Countermeasures are the continuation of force by other means. Countermeasures are the first step of the calculating human being beyond the world ruled by instinct. Countermeasures have the pattern of physical force without some of its perils. To place the concept of countermeasures at the very heart of legal responsibility, at the very heart of the character of a legal system, is thus to elevate to a position of high dignity one of society's least dignified and least sociable aspects. To do so in international law is to condemn international society to be what it is. All government is a conspiracy. Good government is a conspiracy in favour of the people. Bad government is a conspiracy against the people. The international law of the old regime is preventing the emergence of the new international society.

7 - ZCT: Allott s arguments are a load of rubbish! **Stephens (dual responsibility): However, those same principles stress that the individual who commits the wrongful act is responsible as well. The rules of state responsibility "are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State." The ILC Commentary explains that recognizing the legal responsibility of the state "is not to deny the elementary fact that the State cannot act of itself." As a result, "[a]n 'act of the State' must involve some action or omission by a human being or group: 'States can act only by and through their agents and representatives. The Commentary makes the principle of dual responsibility crystal clear, emphasizing that individual responsibility has been the rule since the Nuremberg Tribunals, and concluding that state officials may not "hide behind the state in respect of their own responsibility for conduct of theirs which is contrary to rules of international law which are applicable to them." Individuals may be held accountable through criminal prosecution and perhaps through civil proceedings as well. - Trapp: In this proposal was born the distinction between the primary rules of international law [consisting of the substantive international obligations of States under customary and treaty law, i.e. prohibition on the use of force, diplomatic immunity, human rights), and the secondary rules of State responsibility [rules of general application, bearing on the identification of a breach of the primary rules and the consequences of any such breach] These articles seek to formulate, by way of codification and progressive development, the basic rules of international law concerning the responsibility of States for their internationally wrongful acts. The emphasis is on the secondary rules of State responsibility: that is to say, the general conditions under international law for the State to be considered responsible for wrongful actions or omissions, and the legal consequences which flow therefrom. The artcles do not attempt to define the content of the international obligations, the breach of which gives rise to responsibility. This is the function of the primary rules, whose codification would involve restating most of substantive customary and conventional international law. 1 Elements of State Responsibility - Every breach of international obligations by a state entails its state responsibility Art 1 ARSIWA Responsibility of a State for its internationally wrongful acts