Resp of States Inter,/nationally Wrong Acts

5/28/2018 Resp of States Inter,/nationally Wrong Acts

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S/LEG/SER.B/25

United Nations Legislative Series

MAERIALS ON HERESPONSIBILIY OF SAES FOR

INERNAIONALLY WRONGFUL ACS

UNIED NAIONS NEW YORK, 2012


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ABLE OF CONENS

F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

R S . . . . . . . 1

P O. S . . . . . . . . . 5

C I. G . . . . . . . . . . . . . . . . . . . . . . . . . 7

Article 1. Responsibility o a State or its internationally wrongul acts . . 7Article 2. Elements o an internationally wrongul act o a State. . . . . . 12Article 3. Characterization o an act o a State as internationally wrongul 19

C II. A S . . . . . . . . . . . . . . 27

Article 4. Conduct o organs o a State . . . . . . . . . . . . . . . . . . . . 31Article 5. Conduct o persons or entities exercising elements o

governmental authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 51Article 6. Conduct o organs placed at the disposal o a State

by another State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Article 7. Excess o authority or contravention o instructions. . . . . . . 62Article 8. Conduct directed or controlled by a State. . . . . . . . . . . . . 70Article 9. Conduct carried out in the absence or deault

o the official authorities . . . . . . . . . . . . . . . . . . . . . . . . . . 82Article 10. Conduct o an insurrectional or other movement . . . . . . . . 85Article 11. Conduct acknowledged and adopted by a State as its own . . . 92

C III. B . . . . . . . . . . . 97

Article 12. Existence o a breach o an international obligation . . . . . . . 98Article 13. International obligation in orce or a State. . . . . . . . . . . . 105Article 14. Extension in time o the breach o an international obligation . 110Article 15. Breach consisting o a composite act . . . . . . . . . . . . . . . 121

C IV. R S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

Article 16. Aid or assistance in the commission o an internationallywrongul act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Article 17. Direction and control exercised over the commission o aninternationally wrongul act . . . . . . . . . . . . . . . . . . . . . . . . 134

Article 18. Coercion o another State . . . . . . . . . . . . . . . . . . . . . . 138Article 19. Effect o this chapter. . . . . . . . . . . . . . . . . . . . . . . . . 140

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C V. C . . . . . . . . . . 141

Article 20. Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145Article 21. Sel-deence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148Article 22. Countermeasures in respect o an internationally wrongul act 150Article 23. Force majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154Article 24. Distress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161Article 25. Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167Article 26. Compliance with peremptory norms . . . . . . . . . . . . . . . 186Article 27. Consequences o invoking a circumstance precluding

wrongulness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189P . C . . . 194

C I. G . . . . . . . . . . . . . . . . . . . . . . . . . 195

Article 28. Legal consequences o an internationally wrongul act . . . . . 196Article 29. Continued duty o perormance . . . . . . . . . . . . . . . . . . 197Article 30. Cessation and non-repetition . . . . . . . . . . . . . . . . . . . 199Article 31. Reparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206Article 32. Irrelevance o internal law . . . . . . . . . . . . . . . . . . . . . 216Article 33. Scope o international obligations set out in this Part . . . . . . 218

C II. R . . . . . . . . . . . . . . . . . . . . . . . 220

Article 34. Forms o reparation . . . . . . . . . . . . . . . . . . . . . . . . . 221Article 35. Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225Article 36. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231Article 37. Satisaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249Article 38. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253Article 39. Contribution to the injury . . . . . . . . . . . . . . . . . . . . . 258

C III. S

. . . . . . . . . . . . . . . . . . . . . . . 260Article 40. Application o this chapter . . . . . . . . . . . . . . . . . . . . . 264Article 41. Particular consequences o a serious breach o an obligation

under this chapter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267P .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271

C I. I . . . . . . . . . 272

Article 42. Invocation o responsibility by an injured State . . . . . . . . . 274Article 43. Notice o claim by an injured State . . . . . . . . . . . . . . . . 280Article 44. Admissibility o claims . . . . . . . . . . . . . . . . . . . . . . . 283Article 45. Loss o the right to invoke responsibility . . . . . . . . . . . . . 288

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Article 46. Plurality o injured States . . . . . . . . . . . . . . . . . . . . . . 292Article 47. Plurality o responsible States . . . . . . . . . . . . . . . . . . . 294Article 48. Invocation o responsibility by a State other than

an injured State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298C II. C . . . . . . . . . . . . . . . . . . . . . . . . . . 304

Article 49. Object and limits o countermeasures. . . . . . . . . . . . . . . 309Article 50. Obligations not affected by countermeasures. . . . . . . . . . . 316Article 51. Proportionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . 324Article 52. Conditions relating to resort to countermeasures . . . . . . . . 329Article 53. ermination o countermeasures . . . . . . . . . . . . . . . . . 333Article 54. Measures taken by States other than an injured State . . . . . . 334

P F. G . . . . . . . . . . . . . . . . . . . . . . . . . . . 339

Article 55. Lex specialis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340Article 56. Questions o State responsibility not regulated by

these articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344Article 57. Responsibility o an international organization . . . . . . . . . 346Article 58. Individual responsibility . . . . . . . . . . . . . . . . . . . . . . 349Article 59. Charter o the United Nations . . . . . . . . . . . . . . . . . . . 352

A I. . . . . . . . . . . . . . . . . . . . . . . . . . . 353A II. . . . . . . 365

A III. A . . . . . . . . . . . . . . . . . . . . 411

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F

In 1950, the International Law Commission considered ways and means or mak-ing customary international law more readily available, in accordance with article 24 oits Statute. Te Commission recommended, inter alia, that the General Assembly o theUnited Nations should authorize the Secretariat to prepare and issue, with as wide a dis-tribution as possible, a Legislative Seriescontaining the texts o current national legislationon matters o international interest. In this connection, it was recommended that the Sec-retariat should assemble and publish rom time to time collections o the texts o nationallegislation on special topics o general interest. Te Legislative Seriesis prepared by theCodification Division o the Office o Legal Affairs.

Te first 24 volumes in the Legislative Serieshave addressed a broad range o specialtopics o general interest relating, inter alia, to the law o the sea, the law o treaties, nation-ality, diplomatic and consular law, international organizations, State succession, non-nav-igational uses o international watercourses, jurisdictional immunities o States and theirproperty, the multilateral treaty-making process as well as the prevention and suppressiono international terrorism. Te legal materials contained in this series have included notonly national legislation but also treaties, judicial decisions, diplomatic correspondenceand other relevant materials depending on the topic. Te present volume o this series isdevoted to the topic o the responsibility o States or internationally wrongul acts.

In 2001, at its fify-third session, the International Law Commission adopted the draf

articles on responsibility o States or internationally wrongul acts. In resolution 56/83 o12 December 2001, the General Assembly took note o the articles, the text o which wasannexed to that resolution, and commended them to the attention o Governments with-out prejudice to the question o their uture adoption or other appropriate action. In itsresolutions 59/35 o 2 December 2004, 62/61 o 6 December 2007, and 65/19 o 6 December2010, the General Assembly commended again the articles to the attention o Governmentswithout prejudice to the question o their uture adoption or other appropriate action.

In resolution 59/35, the General Assembly also requested the Secretary-General,interalia, to prepare an initial compilation o decisions o international courts, tribunals and

other bodies reerring to the articles.1

Te compilation was subsequently updated on thebasis o a request by the General Assembly in resolution 62/61.2

Te present collection o materials reproduces the text o the articles, with commen-taries thereto, as presented in the Yearbook o the International Law Commission,3togetherwith the compilation o decisions in which the articles and commentaries were reerred toduring the period rom 1973 to 1996 when the draf articles were adopted on first reading,rom 1996 to their adoption on second reading in 2001,4and up to 31 January 2010, as con-

1 A/62/62 and Corr.1 and Add.1 (covering the period 1973 until April 2007).2 A/65/76 (covering the subsequent period until 31 January 2010).3 2001, vol. II (Part wo), para. 77.4 Reerences to draf articles adopted prior to the final adoption o the articles in 2001 were includ-

ed only when the draf article was incorporated in the final articles. In those cases, the text o the drafarticle was reproduced in a ootnote accompanying the extract.


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tained in the two reports o the Secretary-General.5Te compilation o decisions recorded154 instances in which international courts, tribunals and other bodies6had reerred to

the articles and commentariesTe collection o materials is organized in accordance with the structure o the arti-cles as adopted in 2001, with each article (or Part or Chapter heading) presented togetherwith its commentary, ollowed by the respective extract rom the compilation o decisionsprepared by the Secretary-General. Te compilation o decisions reproduced the extractso decisions in which the articles were reerred to by international courts, tribunals orbodies. Under each article, the extracts o decisions appeared in chronological order toreflect historical developments and to acilitate the understanding o decisions containingreerences to previous case law. In view o the number and length o those decisions, onlythe relevant extracts reerring to the articles were included. Each extract was accompanied

by a brie description o the context in which the statement was made by the internationalcourt, tribunal or other body. Only those extracts in which the articles were invoked as thebasis or the decision or where the articles were reerred to as reflecting the existing lawgoverning the issue at hand were included. Submissions o parties invoking the articles,and opinions o judges appended to a decision were not included.

Annex I reproduces the articles on the responsibility o States or internationallywrongul acts. Annex II lists the various cases and decisions pertaining to each article,or part o the articles (where applicable), cited in both the commentaries and the extractsrom the compilation o decisions. Annex III lists, in alphabetical order, all the cases anddecisions cited in the entire collection o materials.

5 In resolution 65/19 the General Assembly again requested that the compilation be updated orconsideration at its sixty-eighth session in 2012.

6 Extracts were drawn rom the judgments and decisions o the ollowing: the Arican Commissionon Human and Peoples Rights; the Caribbean Court o Justice; the European Commission o HumanRights; the European Court o Human Rights; the European Court o Justice; the Inter-American Com-mission o Human Rights; the Inter-American Court o Human Rights; international arbitral tribunals;the International Court o Justice; the International Criminal ribunal or Rwanda; the InternationalLabour Organization Administrative ribunal; the International Monetary Fund Administrative ri-

bunal; the International ribunal or the Former Yugoslavia; the International ribunal or the Law othe Sea; the Iran-United States Claims ribunal; panels established under GA and WO; the SpecialCourt or Sierra Leone; the United Nations Administrative ribunal; the United Nations CompensationCommission; universal human rights and humanitarian law bodies, both United Nations Charter-basedand treaty-based; the World Bank Administrative ribunal; and the WO Appellate Body.


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E

Te respective original documents have been reproduced with minor changes, limitedto editorial modifications introduced to ensure the consistency o presentation. Any suchmodifications to the original documents (other than ormatting changes) are indicated insquare brackets.

In accordance with its Statute, the International Law Commission adopts drafinstruments, including draf articles. In the recent practice o the General Assembly,when draf articles, as presented by the Commission, are taken note o by the Assemblyand annexed to one o its resolutions, the reerence to draf is excluded. Accordingly, thepractice o the Secretariat has been to use draf articles when reerring to the text in thestages o preparation leading up to, and including, their adoption by the Commission. Teword draf is not included when making reerences to the articles in their contempo-rary orm, i.e. as subsequently annexed to a General Assembly resolution. Tis practice hasnot been uniormly ollowed by the various courts and instances cited in the compilationo decisions prepared by the Secretary-General. Te respective method o reerring to thearticles, as reflected in each extract, has been retained or reasons o historical accuracy.

A reerence (in square brackets) to the respective document symbol (together with therespective paragraph number therein) has been added afer each decision extracted rom

the compilation o decisions prepared by the Secretary-General.Te ootnotes reproduced in the present volume are numbered consecutively (insquare brackets) or ease o reerence, and are presented together with the correspondingootnote numbers appearing in the respective original documents.


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Abbreviations

AJIL American Journal o International Law

BYBIL British Yearbook o International Law

DSU Dispute Settlement Understanding

EC European Community

Eur. Court H.R. European Court o Human Rights

FCN reaty reaty o Friendship, Commerce and Navigation

FRY Federal Republic o Yugoslavia

GA General Agreement on ariffs and radeGDR German Democratic Republic

ICAO International Civil Aviation Organization

ICJ International Court o Justice

ICRC International Committee o the Red Cross

ICSID International Centre or Settlement o Investment Disputes

ICY International Criminal ribunal or the Former Yugoslavia

IFOR Implementation Force in Bosnia and Herzegovina

ILC International Law Commission

ILM International Legal MaterialsILR International Law Reports

Iran-U.S. C..R Iran-United States Claims ribunal Reports

ILOS International ribunal or the Law o the Sea

MERCOSUR Southern Common Market

NAFO Northwest Atlantic Fisheries Organization

NAFA North American Free rade Agreement

NAO North Atlantic reaty Organization

NYIL Netherlands Yearbook o International Law

PCIJ Permanent Court o International Justice

RGDIP Revue Gnrale de Droit International Public

SCM Agreement Agreement on Subsidies and Countervailing Measures

SFOR Stabilization Force in Bosnia and Herzegovina

UNCC United Nations Compensation Commission

UNCIRAL United Nations Commission on International rade Law

UNIDROI International Institute or the Unification o Private Law

UNRIAA United Nations Reports o International Arbitral Awards

WO World rade Organization


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1

RESPONSIBILIY OF SAES FOR INERNAIONALLYWRONGFUL ACS

General commentary

(1) Tese articles seek to ormulate, by way o codification and progressive development,the basic rules o international law concerning the responsibility o States or their inter-nationally wrongul acts. Te emphasis is on the secondary rules o State responsibility:that is to say, the general conditions under international law or the State to be consideredresponsible or wrongul actions or omissions, and the legal consequences which flowthererom. Te articles do not attempt to define the content o the international obliga-tions, the breach o which gives rise to responsibility. Tis is the unction o the primary

rules, whose codification would involve restating most o substantive customary and con-ventional international law.

(2) Roberto Ago, who was responsible or establishing the basic structure and orientationo the project, saw the articles as speciying:

the principles which govern the responsibility o States or internationally wrongul acts, maintain-ing a strict distinction between this task and the task o defining the rules that place obligations onStates, the violation o which may generate responsibility . . . [I]t is one thing to define a rule andthe content o the obligation it imposes, and another to determine whether that obligation has been

violated and what should be the consequences o the violation.[1] 32

(3) Given the existence o a primary rule establishing an obligation under internationallaw or a State, and assuming that a question has arisen as to whether that State has com-plied with the obligation, a number o urther issues o a general character arise. Teseinclude:

(a) Te role o international law as distinct rom the internal law o the State con-cerned in characterizing conduct as unlawul;

(b) Determining in what circumstances conduct is to be attributed to the State as asubject o international law;

(c) Speciying when and or what period o time there is or has been a breach o an

international obligation by a State;(d) Determining in what circumstances a State may be responsible or the conduct

o another State which is incompatible with an international obligation o the latter;

(e) Defining the circumstances in which the wrongulness o conduct under inter-national law may be precluded;

() Speciying the content o State responsibility, i.e. the new legal relations that ariserom the commission by a State o an internationally wrongul act, in terms o cessation othe wrongul act, and reparation or any injury done;

(g) Determining any procedural or substantive preconditions or one State to invokethe responsibility o another State, and the circumstances in which the right to invokeresponsibility may be lost;

[1] 32Yearbook . . . 1970, vol. II, p. 306, document A/8010/Rev.1, para. 66 (c).


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(h) Laying down the conditions under which a State may be entitled to respond toa breach o an international obligation by taking countermeasures designed to ensure the

ulfilment o the obligations o the responsible State under these articles.Tis is the province o the secondary rules o State responsibility.

(4) A number o matters do not all within the scope o State responsibility as dealt within the present articles:

(a) As already noted, it is not the unction o the articles to speciy the content othe obligations laid down by particular primary rules, or their interpretation. Nor do thearticles deal with the question whether and or how long particular primary obligationsare in orce or a State. It is a matter or the law o treaties to determine whether a State is aparty to a valid treaty, whether the treaty is in orce or that State and with respect to whichprovisions, and how the treaty is to be interpreted. Te same is true, mutatis mutandis,or other sources o international obligations, such as customary international law. Tearticles take the existence and content o the primary rules o international law as they areat the relevant time; they provide the ramework or determining whether the consequentobligations o each State have been breached, and with what legal consequences or otherStates.

(b) Te consequences dealt with in the articles are those which flow rom the com-mission o an internationally wrongul act as such.[2]33No attempt is made to deal with theconsequences o a breach or the continued validity or binding effect o the primary rule

(e.g. the right o an injured State to terminate or suspend a treaty or material breach, asreflected in article 60 o the 1969 Vienna Convention). Nor do the articles cover such indi-rect or additional consequences as may flow rom the responses o international organiza-tions to wrongul conduct. In carrying out their unctions it may be necessary or inter-national organizations to take a position on whether a State has breached an internationalobligation. But even where this is so, the consequences will be those determined by orwithin the ramework o the constituent instrument o the organization, and these alloutside the scope o the articles. Tis is particularly the case with action o the UnitedNations under the Charter, which is specifically reserved by article 59.

(c) Te articles deal only with the responsibility or conduct which is internation-ally wrongul. Tere may be cases where States incur obligations to compensate or theinjurious consequences o conduct which is not prohibited, and may even be expresslypermitted, by international law (e.g. compensation or property duly taken or a publicpurpose). Tere may also be cases where a State is obliged to restore the status quo anteafer some lawul activity has been completed. Tese requirements o compensation orrestoration would involve primary obligations; it would be the ailure to pay compensa-tion, or to restore the status quowhich would engage the international responsibility o theState concerned. Tus or the purposes o these articles, international responsibility resultsexclusively rom a wrongul act contrary to international law. Tis is reflected in the title

o the articles.[2] 33For the purposes o the articles, the term internationally wrongul act includes an omission

and extends to conduct consisting o several actions or omissions which together amount to an interna-tionally wrongul act. See paragraph (1) o the commentary to article 1.


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(d) Te articles are concerned only with the responsibility o States or internation-ally wrongul conduct, leaving to one side issues o the responsibility o international

organizations or o other non-State entities (see articles 57 and 58).(5) On the other hand, the present articles are concerned with the whole field o Stateresponsibility. Tus they are not limited to breaches o obligations o a bilateral charac-ter, e.g. under a bilateral treaty with another State. Tey apply to the whole field o theinternational obligations o States, whether the obligation is owed to one or several States,to an individual or group, or to the international community as a whole. Being generalin character, they are also or the most part residual. In principle, States are ree, whenestablishing or agreeing to be bound by a rule, to speciy that its breach shall entail onlyparticular consequences and thereby to exclude the ordinary rules o responsibility. Tisis made clear by article 55.

(6) Te present articles are divided into our parts. Part One is entitled Te internation-ally wrongul act o a State. It deals with the requirements or the international responsi-bility o a State to arise. Part wo, Content o the international responsibility o a State,deals with the legal consequences or the responsible State o its internationally wrongulact, in particular as they concern cessation and reparation. Part Tree is entitled Teimplementation o the international responsibility o a State. It identifies the State or Stateswhich may react to an internationally wrongul act and specifies the modalities by whichthis may be done, including, in certain circumstances, by the taking o countermeasuresas necessary to ensure cessation o the wrongul act and reparation or its consequences.Part Four contains certain general provisions applicable to the articles as a whole.

DECISIONS OF INERNAIONAL COURS, RIBUNALS AND OHER BODIES

I ( ICSID A F R)

Archer Daniels Midland Company and ate & Lyle Ingredients Americas, Inc.v.theUnited Mexican States

In its 2007 award, the tribunal established to hear the case oArcher Daniels MidlandCompany and ate & Lyle Ingredients Americas, Inc.v.Mexicomade the ollowing assess-

ment o the status o the State responsibility articles:

Te ribunal acknowledges the act that the ILC Articles are the product o over five decades o ILCwork. Tey represent in part the progressive development o international lawpursuant to its UNmandateand represent to a large extent a restatement o customary international law regardingsecondary principles o state responsibility.[3]4

[A/65/76, para. 9]

[3] 4ICSID,Archer Daniels Midland Company and ate & Lyle Ingredients Americas, Inc. v.theUnited Mexican States, Case No. ARB(AF)/04/05, award, 21 November 2007, para. 116.


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I ( NAFA ICSID AF R)

Corn Products International Inc.v.Te United Mexican StatesIn its 2008 Decision on Responsibility, the tribunal established to consider the case

o Corn Products International Inc. v.Mexiconoted that it was accepted that the Stateresponsibility articles constituted the most authoritative statement on the rules on Stateresponsibility.[4] 5

[A/65/76, para. 10]

I ( ICSID C)

Biwater Gauff (anzania) Ltd.v.United Republic o anzaniaTe tribunal in the 2008 Biwater Gauff (anzania) Ltd.v.anzaniacase reerred to

the articles as a codification o the rules o customary international law on the responsibil-ity o States or their internationally wrongul acts.[5] 6

[A/65/76, para. 11]

[4] 5ICSID, Corn Products International Inc.,v.Te United Mexican States, Case No. ARB(AF)/04/01,decision on responsibility, 15 January 2008, para. 76.

[5] 6ICSID, Biwater Gauff (anzania) Ltd. v.United Republic o anzania, Case No. ARB/05/22,award, 24 July 2008, paras. 773 and 774.


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P O

HE INERNAIONALLY WRONGFUL AC OF A SAE

Part One defines the general conditions necessary or State responsibility to arise.Chapter I lays down three basic principles or responsibility rom which the articles as awhole proceed. Chapter II defines the conditions under which conduct is attributable tothe State. Chapter III spells out in general terms the conditions under which such conductamounts to a breach o an international obligation o the State concerned. Chapter IVdeals with certain exceptional cases where one State may be responsible or the conducto another State not in conormity with an international obligation o the latter. Chapter

V defines the circumstances precluding the wrongulness or conduct not in conormitywith the international obligations o a State.


I-U S C

Rankinv.Islamic Republic o Iran

In its 1987 award in the Rankinv. Islamic Republic o Irancase, the ribunal, in deter-mining whether it had jurisdiction over the case, considered that Part One o the arti-cles provisionally adopted by the International Law Commission in 1980 constituted themost recent and authoritative statement o current international law on the origin o Stateresponsibility or internationally wrongul acts:[6]4

. . . the ribunal observes that only injuries resulting rom popular movements which are not an acto the Government o Iran are excluded rom the ribunals jurisdiction by this provision [i.e., para-graph 11 o the Declaration o the Government o Algeria o 19 January 1981 [7] 5], which exclusionis no more than a restatement o the customary international law requirement that a States respon-

sibility is engaged only by wrongul conduct attributable to the State. Such conduct has in recentyears come under the scrutiny o the United Nations International Law Commission, culminatingin the development o a set o draf articles on the origins o State responsibility or internationallywrongul acts. Te ribunal has adopted the criteria set down by the International Law Commissionas the most recent and authoritative statement o current international law in this area. Seedrafarticles on State responsibility (Part 2 o the draf) as provisionally adopted by the InternationalLaw Commission, cited 1980 Yearbook o the International Law Commission, vol. II, Part wo at pp.

[6] 4Part One o the articles provisionally adopted by the International Law Commission (entitledOrigin o international responsibility) became, with amendments, Part One o the articles finallyadopted in 2001.

[7]

5

Under paragraph 11 o the Declaration o the Government o Algeria o 19 January 1981, theUnited States o America agreed to bar and preclude prosecution against Iran o any pending or utureclaim . . . arising out o events occurring beore the date o this Declaration related to . . . (d) injury to theUnited States nationals or their property as a result o popular movements in the course o the IslamicRevolution in Iran which were not an act o the Government o Iran.


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3034, United Nations doc. A/CN.4/SER.A/1980/Add.1 (Part 2); accord Alred L.W. Short v. TeIslamic Republic o Iran, Award No. 312111353 (14 July 1987).[8] 6

In urtherance o this finding, the ribunal later reerred to draf articles 5 to 10 provi-sionally adopted by the International Law Commission as the legal basis to examine thecircumstances o each departure [o United States citizens rom the Islamic Republic oIran] and to identiy the general and specific acts relied on and evidenced to determinehow they affected or motivated at that time the individual who now is alleging expulsionand whether such acts are attributable to Iran.[9]7

[A/62/62, para. 7]

[8]

6

Iran-United States Claims ribunal, Rankinv. Islamic Republic o Iran, award No. 326109132, 3 November 1987, Iran-United States Claims ribunal Reports, vol. 17 (1987-IV), p. 141, para. 18.Te relevant extract o the previous case reerred to in this passage (Shortv. Islamic Republic o Iran) isreported [on pp. 89-91] below.

[9] 7Ibid., pp. 147148, para. 30.


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C I

GENERAL PRINCIPLES

Article 1. Responsibility of a State for its internationally wrongful acts

Every internationally wrongful act of a State entails the international responsibil-ity of that State.

Commentary

(1) Article 1 states the basic principle underlying the articles as a whole, which is that abreach o international law by a State entails its international responsibility. An interna-tionally wrongul act o a State may consist in one or more actions or omissions or a com-bination o both. Whether there has been an internationally wrongul act depends, first,on the requirements o the obligation which is said to have been breached and, secondly, onthe ramework conditions or such an act, which are set out in Part One. Te term inter-national responsibility covers the new legal relations which arise under international lawby reason o the internationally wrongul act o a State. Te content o these new legalrelations is specified in Part wo.

(2) PCIJ applied the principle set out in article 1 in a number o cases. For example, in thePhosphates in Moroccocase, PCIJ affirmed that when a State commits an internationallywrongul act against another State international responsibility is established immedi-ately as between the two States.[10] 34ICJ has applied the principle on several occasions, orexample in the Coru Channelcase,[11]35in theMilitary and Paramilitary Activities in andagainst Nicaragua case,[12]36and in the Gabkovo-Nagymaros Project case.[13]37Te Courtalso reerred to the principle in its advisory opinions on Reparation or Injuries,[14]38 andon the Interpretation o Peace reaties (Second Phase),[15] 39 in which it stated that reusal toulfil a treaty obligation involves international responsibility.[16] 40Arbitral tribunals haverepeatedly affirmed the principle, or example in the Claims o Italian Nationals Resident

[10] 34Phosphates in Morocco, Judgment, 1938,P.C.I.J., Series A/B, No. 74,p. 10, at p. 28. See also S.S.Wimbledon, 1923, P.C.I.J., Series A, No. 1,p. 15, at p. 30; Factory at Chorzw, Jurisdiction, JudgmentNo. 8, 1927, P.C.I.J., Series A, No. 9, p. 21; and ibid., Merits,Judgment No. 13, 1928, P.C.I.J., Series A, No.17, p. 29.

[11] 35Coru Channel, Merits, Judgment, I.C.J. Reports 1949,p. 4, at p. 23.[12] 36Military and Paramilitary Activities in and against Nicaragua (Nicaraguav. United States o

America), Merits, Judgment, I.C.J. Reports 1986,p. 14, at p. 142, para. 283, and p. 149, para. 292.[13] 37Gabkovo-Nagymaros Project[(Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7], at p.

38, para. 47.[14] 38Reparation or Injuries Suffered in the Service o the United Nations, Advisory Opinion, I.C.J.

Reports 1949,p. 174, at p. 184.[15] 39Interpretation o Peace reaties with Bulgaria, Hungary and Romania, Second Phase, Advisory

Opinion, I.C.J. Reports 1950, p. 221.[16] 40Ibid., p. 228.


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in Peru cases,[17] 41in the Dickson Car Wheel Companycase,[18] 42in the International Fisher-ies Company case,[19] 43in the British Claims in the Spanish Zone o Moroccocase[20] 44and

in theArmstrong Cork Companycase.[21] 45

In the Rainbow Warriorcase,[22] 46

the arbitraltribunal stressed that any violation by a State o any obligation, o whatever origin, givesrise to State responsibility.[23] 47

(3) Tat every internationally wrongul act o a State entails the international respon-sibility o that State, and thus gives rise to new international legal relations additional tothose which existed beore the act took place, has been widely recognized, both beore[24] 48

and since[25] 49article 1 was first ormulated by the Commission. It is true that there wereearly differences o opinion over the definition o the legal relationships arising rom aninternationally wrongul act. One approach, associated with Anzilotti, described the legalconsequences deriving rom an internationally wrongul act exclusively in terms o a bind-ing bilateral relationship thereby established between the wrongdoing State and the injuredState, in which the obligation o the ormer State to make reparation is set against thesubjective right o the latter State to require reparation. Another view, associated withKelsen, started rom the idea that the legal order is a coercive order and saw the authoriza-

[17] 41Seven o these awards rendered in 1901 reiterated that a universally recognized principle ointernational law states that the State is responsible or the violations o the law o nations committedby its agents (UNRIAA, vol. XV (Sales No. 66.V.3), pp. 399(Chiessa claim), 401 (Sessarego claim), 404(Sanguinetti claim), 407 (Vercelli claim), 408 (Queirolo claim), 409 (Roggero claim), and 411 (Migliaclaim)).

[18]

42

Dickson Car Wheel Company (U.S.A.)v.United Mexican States, UNRIAA, vol. IV (Sales No.1951.V.1), p. 669, at p. 678 (1931).[19] 43International Fisheries Company (U.S.A.) v.United Mexican States, ibid., p. 691, at p. 701

(1931).[20] 44According to the arbitrator, Max Huber, it is an indisputable principle that responsibility is

the necessary corollary o rights. All international rights entail international responsibility, UNRIAA,vol. II (Sales No. 1949.V.1), p. 615, at p. 641 (1925).

[21] 45According to the Italian-United States Conciliation Commission, no State may escape theresponsibility arising out o the exercise o an illicit action rom the viewpoint o the general principleso international law, UNRIAA, vol. XIV (Sales No. 65.V.4), p. 159, at p. 163 (1953).

[22] 46Case concerning the difference between New Zealand and France concerning the interpreta-

tion or application o two agreements concluded on 9 July 1986 between the two States and which relatedto the problems arising rom the Rainbow Warrior affair,UNRIAA, vol. XX (Sales No. E/F.93.V.3), p.215 (1990).

[23] 47Ibid., p. 251, para. 75.[24] 48See, e.g., D. Anzilotti, Corso di diritto internazionale, 4th ed. (Padua, CEDAM, 1955) vol.

I, p. 385; W. Wengler, Vlkerrecht(Berlin, Springer, 1964), vol. I, p. 499; G. I. unkin, eoria mezhd-unarodnogo prava(Moscow, Mezhdunarodnye otnoshenia, 1970), p. 470, trans. W. E. Butler, Teoryo International Law(London, George Allen and Unwin, 1974), p. 415; and E. Jimnez de Archaga,International responsibility,Manual o Public International Law, M. Srensen, ed. (London, Macmil-lan, 1968), p. 533.

[25] 49See, e.g., I. Brownlie, Principles o Public International Law, 5th ed. (Oxord University Press,

1998), p. 435; B. Conorti, Diritto internazionale, 4th ed. (Milan, Editoriale Scientifica, 1995), p. 332; P.Daillier and A. Pellet, Droit international public (Nguyen Quoc Dinh), 6th ed. (Paris, Librairie gnralede droit et de jurisprudence, 1999), p. 742; P.-M. Dupuy, Droit international public,4th ed.(Paris, Dalloz,1998), p. 414; and R. Wolrum, Internationally wrongul acts, Encyclopedia o Public International Law,R. Bernhardt, ed. (Amsterdam, North-Holland, 1995), vol. II, p. 1398.


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tion accorded to the injured State to apply a coercive sanction against the responsible Stateas the primary legal consequence flowing directly rom the wrongul act.[26]50According

to this view, general international law empowered the injured State to react to a wrong; theobligation to make reparation was treated as subsidiary, a way by which the responsibleState could avoid the application o coercion. A third view, which came to prevail, held thatthe consequences o an internationally wrongul act cannot be limited either to reparationor to a sanction.[27]51In international law, as in any system o law, the wrongul act maygive rise to various types o legal relations, depending on the circumstances.

(4) Opinions have also differed on the question whether the legal relations arising rom theoccurrence o an internationally wrongul act were essentially bilateral, i.e. concerned onlythe relations o the responsible State and the injured State inter se. Increasingly it has beenrecognized that some wrongul acts engage the responsibility o the State concerned towards

several or many States or even towards the international community as a whole. A significantstep in this direction was taken by ICJ in the Barcelona raction case when it noted that:

an essential distinction should be drawn between the obligations o a State towards the internationalcommunity as a whole, and those arising vis--vis another State in the field o diplomatic protec-tion. By their very nature the ormer are the concern o all States. In view o the importance o therights involved, all States can be held to have a legal interest in their protection; they are obligationserga omnes.[28] 52

Every State, by virtue o its membership in the international community, has a legal inter-est in the protection o certain basic rights and the ulfilment o certain essential obliga-

tions. Among these the Court instanced the outlawing o acts o aggression, and o geno-cide, as also . . . the principles and rules concerning the basic rights o the human person,including protection rom slavery and racial discrimination.[29] 53In later cases the Courthas reaffirmed this idea.[30] 54 Te consequences o a broader conception o internationalresponsibility must necessarily be reflected in the articles which, although they includestandard bilateral situations o responsibility, are not limited to them.

(5) Tus the term international responsibility in article 1 covers the relations whicharise under international law rom the internationally wrongul act o a State, whethersuch relations are limited to the wrongdoing State and one injured State or whether theyextend also to other States or indeed to other subjects o international law, and whetherthey are centred on obligations o restitution or compensation or also give the injured Statethe possibility o responding by way o countermeasures.

[26] 50See H. Kelsen, Principles o International Law, 2nd ed., R. W. ucker, ed. (New York, Holt,Rinehart and Winston, 1966), p. 22.

[27] 51See, e.g., R. Ago, Le dlit international, Recueil des cours . . . , 1939II (Paris, Sirey, 1947),vol. 68, p. 415, at pp. 430440; and L . Oppenheim, International Law: A reatise,vol. I, Peace, 8th ed.,H. Lauterpacht, ed. (London, Longmans, Green and Co., 1955), pp. 352354.

[28] 52Barcelona raction[, Light and Power Company, Limited, Second Phase, Judgment, I.C.J.Reports 1970], p. 32, para. 33.

[29]

53

Ibid., para. 34.[30] 54See East imor (Portugalv.Australia), Judgment, I.C.J. Reports 1995, p. 90, at p. 102, para. 29;Legality o the Treat or Use o Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 258,para. 83; andApplication o the Convention on the Prevention and Punishment o the Crime o Genocide,Preliminary Objections, Judgment, I.C.J. Reports 1996,p. 595, at pp. 615616, paras. 3132.


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(6) Te act that under article 1 every internationally wrongul act o a State entails theinternational responsibility o that State does not mean that other States may not also

be held responsible or the conduct in question, or or injury caused as a result. Underchapter II the same conduct may be attributable to several States at the same time. Underchapter IV, one State may be responsible or the internationally wrongul act o another,or example i the act was carried out under its direction and control. Nonetheless the basicprinciple o international law is that each State is responsible or its own conduct in respecto its own international obligations.

(7) Te articles deal only with the responsibility o States. O course, as ICJ affirmed inthe Reparation or Injuries case, the United Nations is a subject o international law andcapable o possessing international rights and duties . . . it has capacity to maintain itsrights by bringing international claims.[31] 55Te Court has also drawn attention to the

responsibility o the United Nations or the conduct o its organs or agents.[32] 56

It may bethat the notion o responsibility or wrongul conduct is a basic element in the possessiono international legal personality. Nonetheless, special considerations apply to the respon-sibility o other international legal persons, and these are not covered in the articles.[33] 57

(8) As to terminology, the French termait internationalement illiciteis preerable to dlitor other similar expressions which may have a special meaning in internal law. For thesame reason, it is best to avoid, in English, such terms as tort, delict or delinquency,or in Spanish the term delito. Te French termait internationalement illicite is better thanacte internationalement illicite, since wrongulness ofen results rom omissions whichare hardly indicated by the term acte. Moreover, the latter term appears to imply that the

legal consequences are intended by its author. For the same reasons, the term hecho inter-nacionalmente ilcitois adopted in the Spanish text. In the English text, it is necessary tomaintain the expression internationally wrongul act, since the Frenchaithas no exactequivalent; nonetheless, the term act is intended to encompass omissions, and this ismade clear in article 2.


I F Y

Prosecutorv.ihomir Blaki (Lasva Valley)

In its 1997 decision on the objection o the Republic o Croatia to the issuance o sub-poenae duces tecumin the Blakicase, which was later submitted to review by the AppealsChamber,[34] 8rial Chamber II o the International ribunal or the Former Yugoslavia,

[31] 55Reparation or Injuries (see ootnote [14] 38 above), p. 179.[32] 56Difference Relating to Immunity rom Legal Process o a Special Rapporteur o the Commission

on Human Rights, Advisory Opinion, I.C.J. Reports 1999, p. 62, at pp. 8889, para. 66.[33] 57For the position o international organizations, see article 57 and commentary.[34]

8

In this decision, rial Chamber II considered that it is incumbent upon an individual actingin an official capacity to comply with the orders o the International ribunal (International ribunalor the Former Yugoslavia, rial Chamber II, Prosecutorv. ihomir Blaki(Lasva Valley), Decision onthe Objection o the Republic o Croatia to the Issuance oSubpoenae Duces ecum, Case No. I-9514,18 July 1997, para. 96) and thereore reinstated the subpoena duces tecumissued on 15 January 1997 by


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in considering whether individuals could be subject to orders (more specifically subpoe-nae duces tecum) rom the ribunal, quoted the text o draf article 1 adopted on first

reading,[35] 9

which it considered to be an established rule o international law:I the individual complies with the order in defiance o this government, he may ace the loss o hisposition and possibly ar greater sanctions than need be mentioned here. Given the Internationalribunals lack o police power, it would be very difficult to provide adequate protection or an offi-cial who so defied his State. Based on the principle ultra posse nemo tenetur, which states that oneshould not be compelled to engage in a behaviour that is nearly impossible, it may not be proper tocompel an individual to comply with such an order in his official capacity in such circumstances.However, these concerns must be balanced with the need o the International ribunal to obtain theinormation necessary or a just and air adjudication o the criminal charges beore it. Due to theseconcerns and noting the established rule o international law that [e]very internationally wrong acto a State entails the international responsibility o that State, the duty to comply in such a scenario

must be placed on the State, with appropriate sanctions or penalties or non-compliance . . . [36] 10

[A/62/62, para. 8]

I

In the matter o an Ad hocArbitration under the Agreement between the Kingdom o theNetherlands and the Republic o Poland on Encouragement and Reciprocal Protection oInvestment between Eureko BV and Republic o Poland

In its 2005 partial award, the arbitral tribunal constituted to hear the Eureko BVv.

Republic o Poland case, in support o its finding that a State may be responsible or omis-sions by its organs, quoted the commentary to article 1 finally adopted by the InternationalLaw Commission in 2001.[37] 11

[A/62/62, para. 9]

Judge McDonald to the Republic o Croatia and the Croatian Deence Minister, Mr. Gojko Susak (ibid.,

disposition). Te Appeals Chamber, on the contrary, later ound that the International ribunal maynot address binding orders under Article 29 to State officials acting in their official capacity and thusquashed the subpoena duces tecum(International ribunal or the Former Yugoslavia, Appeals Cham-ber, Prosecutorv. ihomir Blaki (Lasva Valley), Judgement on the Request o the Republic o Croatia orReview o the Decision o rial Chamber II o 18 July 1997, Case No. I-9514, 29 October 1997, disposi-tion). On the Appeals Chamber judgement, see [pp. 29-30] below.

[35] 9Tis provision was reproduced without change in article 1 final ly adopted by the InternationalLaw Commission in 2001.

[36] 10International ribunal or the Former Yugoslavia, rial Chamber II, Prosecutorv.ihomirBlaki(Lasva Valley),Decision on the Objection o the Republic o Croatia to the Issuance oSubpoenaeDuces ecum, Case No. I-9514, 18 July 1997, para. 95 (ootnotes omitted).

[37]

11

In the matter o an Ad hoc Arbitration under the Agreement between the Kingdom o theNetherlands and the Republic o Poland on Encouragement and Reciprocal Protection o Investmentbetween Eureko BV and Republic o Poland, partial award, 19 August 2005, para. 188. Te arbitral tri-bunal reerred in particular to paragraphs (1) and (8) o the commentary to article 1 ([Yearbook o theInternational Law Commission, 2001,vol. II (Part wo)], para. 77).


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

Tere 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.

Commentary

(1) Article 1 states the basic principle that every internationally wrongul act o a Stateentails its international responsibility. Article 2 specifies the conditions required to estab-lish the existence o an internationally wrongul act o the State, i.e. the constituent ele-ments o such an act. wo elements are identified. First, the conduct in question must be

attributable to the State under international law. Secondly, or responsibility to attach tothe act o the State, the conduct must constitute a breach o an international legal obliga-tion in orce or that State at that time.

(2) Tese two elements were specified, or example, by PCIJ in the Phosphates in Moroccocase.Te Court explicitly linked the creation o international responsibility with the exist-ence o an act being attributable to the State and described as contrary to the treaty right[s]o another State.[38] 58ICJ has also reerred to the two elements on several occasions. In theUnited States Diplomatic and Consular Staff in ehrancase, it pointed out that, in order toestablish the responsibility o the Islamic Republic o Iran:

[]irst, it must determine how ar, legally, the acts in question may be regarded as imputable tothe Iranian State. Secondly, it must consider their compatibility or incompatibility with the obli-gations o Iran under treaties in orce or under any other rules o international law that may beapplicable.[39] 59

Similarly in the Dickson Car Wheel Company case, the Mexico-United States GeneralClaims Commission noted that the condition required or a State to incur internationalresponsibility is that an unlawul international act be imputed to it, that is, that there exista violation o a duty imposed by an international juridical standard.[40] 60

(3) Te element o attribution has sometimes been described as subjective and the ele-

ment o breach as objective, but the articles avoid such terminology.[41] 61Whether therehas been a breach o a rule may depend on the intention or knowledge o relevant Stateorgans or agents and in that sense may be subjective. For example, article II o the Con-

vention on the Prevention and Punishment o the Crime o Genocide states that: In thepresent Convention, genocide means any o the ollowing acts committed with intent todestroy, in whole or in part, a national, ethnical, racial or religious group, as such . . . In

[38] 58See ootnote [10] 34 above.[39] 59United States Diplomatic and Consular Staff in ehran, Judgment, I.C.J. Reports 1980 , p. 3, at

p. 29, para. 56. C. page 41, para. 90. See alsoMilitary and Paramilitary Activities in and against Nica-ragua (ootnote [12] 36 above), pp. 117118, para. 226; and Gabkovo-Nagymaros Project(ootnote [13]above), p. 54, para. 78.

[40] 60See ootnote [18] 42 above.[41] 61C. Yearbook . . . 1973, vol. II, p. 179, document A/9010/Rev.1, paragraph (1) o the commen-

tary to article 3.


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other cases, the standard or breach o an obligation may be objective, in the sense thatthe advertence or otherwise o relevant State organs or agents may be irrelevant. Whether

responsibility is objective or subjective in this sense depends on the circumstances,including the content o the primary obligation in question. Te articles lay down no gen-eral rule in that regard. Te same is true o other standards, whether they involve somedegree o ault, culpability, negligence or want o due diligence. Such standards vary romone context to another or reasons which essentially relate to the object and purpose o thetreaty provision or other rule giving rise to the primary obligation. Nor do the articles laydown any presumption in this regard as between the different possible standards. Estab-lishing these is a matter or the interpretation and application o the primary rules engagedin the given case.

(4) Conduct attributable to the State can consist o actions or omissions. Cases in which

the international responsibility o a State has been invoked on the basis o an omission areat least as numerous as those based on positive acts, and no difference in principle existsbetween the two. Moreover, it may be difficult to isolate an omission rom the surround-ing circumstances which are relevant to the determination o responsibility. For example,in the Coru Channel case, ICJ held that it was a sufficient basis or Albanian responsibilitythat it knew, or must have known, o the presence o the mines in its territorial waters anddid nothing to warn third States o their presence.[42] 62In the United States Diplomatic andConsular Staff in ehrancase, the Court concluded that the responsibility o the IslamicRepublic o Iran was entailed by the inaction o its authorities which ailed to takeappropriate steps, in circumstances where such steps were evidently called or.[43] 63In

other cases it may be the combination o an action and an omission which is the basis orresponsibility.[44] 64

(5) For particular conduct to be characterized as an internationally wrongul act, it mustfirst be attributable to the State. Te State is a real organized entity, a legal person with ul lauthority to act under international law. But to recognize this is not to deny the elemen-tary act that the State cannot act o itsel. An act o the State must involve some actionor omission by a human being or group: States can act only by and through their agentsand representatives.[45] 65Te question is which persons should be considered as actingon behal o the State, i.e. what constitutes an act o the State or the purposes o State

responsibility.(6) In speaking o attribution to the State what is meant is the State as a subject o inter-national law. Under many legal systems, the State organs consist o different legal per-sons (ministries or other legal entities), which are regarded as having distinct rights and

[42] 62Coru Channel, Merits(see ootnote [11] 35 above), pp. 2223.[43] 63United States Diplomatic and Consular Staff in ehran (see ootnote [39] 59 above), pp. 3132,

paras. 63 and 67. See also Velsquez Rodrguez v.Hondurascase, Inter-American Court o HumanRights, Series C, No. 4, para. 170 (1988): under international law a State is responsible or the acts o itsagents undertaken in their official capacity and or their omissions; and Affaire relative lacquisitionde la nationalit polonaise, UNRIAA, vol. I (Sales No. 1948.V.2), p. 401, at p. 425 (1924).

[44] 64For example, under article 4 o the Convention relative to the Laying o Automatic SubmarineContact Mines (Hague Convention VIII o 18 October 1907), a neutral Power which lays mines off itscoasts but omits to give the required notice to other States parties would be responsible accordingly.

[45] 65German Settlers in Poland, Advisory Opinion, 1923, P.C.I.J., Series B, No. 6, p. 22.


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obligations or which they alone can be sued and are responsible. For the purposes o theinternational law o State responsibility the position is different. Te State is treated as a

unity, consistent with its recognition as a single legal person in international law. In this asin other respects the attribution o conduct to the State is necessarily a normative opera-tion. What is crucial is that a given event is sufficiently connected to conduct (whether anact or omission) which is attributable to the State under one or other o the rules set out inchapter II.

(7) Te second condition or the existence o an internationally wrongul act o the Stateis that the conduct attributable to the State should constitute a breach o an internationalobligation o that State. Te terminology o breach o an international obligation o theState is long established and is used to cover both treaty and non-treaty obligations. In its

judgment on jurisdiction in the Factory at Chorzwcase, PCIJ used the words breach oan engagement.[46] 66It employed the same expression in its subsequent judgment on themerits.[47] 67ICJ reerred explicitly to these words in the Reparation or Injuriescase.[48] 68Te arbitral tribunal in the Rainbow Warrior affair reerred to any violation by a Stateo any obligation.[49] 69In practice, terms such as non-execution o international obliga-tions, acts incompatible with international obligations, violation o an internationalobligation or breach o an engagement are also used.[50] 70All these ormulations haveessentially the same meaning. Te phrase preerred in the articles is breach o an interna-tional obligation corresponding as it does to the language o Article 36, paragraph 2 (c),o the ICJ Statute.

(8) In international law the idea o breach o an obligation has ofen been equated withconduct contrary to the rights o others. PCIJ spoke o an act contrary to the treaty right[s]o another State in its judgment in the Phosphates in Moroccocase.[51] 71Tat case con-cerned a limited multilateral treaty which dealt with the mutual rights and duties o theparties, but some have considered the correlation o obligations and rights as a general ea-ture o international law: there are no international obligations o a subject o internationallaw which are not matched by an international right o another subject or subjects, or eveno the totality o the other subjects (the international community as a whole). But differentincidents may attach to a right which is held in common by all other subjects o interna-

tional law, as compared with a specific right o a given State or States. Different States maybe beneficiaries o an obligation in different ways, or may have different interests in respecto its perormance. Multilateral obligations may thus differ rom bilateral ones, in view othe diversity o legal rules and institutions and the wide variety o interests sought to beprotected by them. But whether any obligation has been breached still raises the two basicquestions identified in article 2, and this is so whatever the character or provenance o the

[46] 66Factory at Chorzw, Jurisdiction(see ootnote [10] 34 above).[47] 67Factory at Chorzw, Merits(ibid.).[48] 68Reparation or Injuries (see ootnote [14] 38 above), p. 184.[49] 69Rainbow Warrior (see ootnote [22] 46 above), p. 251, para. 75.[50] 70At the Conerence or the Codification o International Law, held at Te Hague in 1930, the

term any ailure . . . to carry out the international obligations o the State was adopted (see Yearbook .. . 1956, vol. II, p. 225, document A/CN.4/96, annex 3, article 1).

[51] 71See ootnote [10] 34 above.


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obligation breached. It is a separate question who may invoke the responsibility arisingrom the breach o an obligation: this question is dealt with in Part Tree.[52] 72

(9) Tus there is no exception to the principle stated in article 2 that there are two nec-essary conditions or an internationally wrongul actconduct attributable to the Stateunder international law and the breach by that conduct o an international obligation othe State. Te question is whether those two necessary conditions are also sufficient. It issometimes said that international responsibility is not engaged by conduct o a State indisregard o its obligations unless some urther element exists, in particular, damageto another State. But whether such elements are required depends on the content o theprimary obligation, and there is no general rule in this respect. For example, the obligationunder a treaty to enact a uniorm law is breached by the ailure to enact the law, and it is notnecessary or another State party to point to any specific damage it has suffered by reason

o that ailure. Whether a particular obligation is breached orthwith upon a ailure to acton the part o the responsible State, or whether some urther event must occur, dependson the content and interpretation o the primary obligation and cannot be determined inthe abstract.[53] 73

(10) A related question is whether ault constitutes a necessary element o the internation-ally wrongul act o a State. Tis is certainly not the case i by ault one understands theexistence, or example, o an intention to harm. In the absence o any specific requiremento a mental element in terms o the primary obligation, it is only the act o a State that mat-ters, independently o any intention.

(11) Article 2 introduces and places in the necessary legal context the questions dealt within subsequent chapters o Part One. Subparagraph (a)which states that conduct attrib-utable to the State under international law is necessary or there to be an internationallywrongul actcorresponds to chapter II, while chapter IV deals with the specific caseswhere one State is responsible or the internationally wrongul act o another State. Sub-paragraph (b)which states that such conduct must constitute a breach o an internationalobligationcorresponds to the general principles stated in chapter III, while chapter Vdeals with cases where the wrongulness o conduct, which would otherwise be a breacho an obligation, is precluded.

(12) In subparagraph (a), the term attribution is used to denote the operation o attach-

ing a given action or omission to a State. In international practice and judicial decisions,the term imputation is also used.[54] 74But the term attribution avoids any suggestionthat the legal process o connecting conduct to the State is a fiction, or that the conduct inquestion is really that o someone else.

(13) In subparagraph (b), reerence is made to the breach o an international obligationrather than a rule or a norm o international law. What matters or these purposes is not

[52] 72See also article 33, paragraph 2, and commentary.[53] 73For examples o analysis o different obligations, see United StatesDiplomatic and Consular

Staff in ehran(ootnote [39] 59 above), pp. 3033, paras. 6268; Rainbow Warrior (ootnote [22] 46

above), pp. 266267, paras. 107110; and WO, Report o the Panel, United StatesSections 301310 othe rade Act o 1974(W/DS152/R), 22 December 1999, paras. 7.41 et seq.[54] 74See, e.g., United States Diplomatic and Consular Staff in ehran(ootnote [39] 59 above),

p. 29, paras. 56 and 58; andMilitary and Paramilitary Activities in and against Nicaragua (ootnote [12]36 above), p. 51, para. 86.


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simply the existence o a rule but its application in the specific case to the responsible State.Te term obligation is commonly used in international judicial decisions and practice

and in the literature to cover all the possibilities. Te reerence to an obligation is limitedto an obligation under international law, a matter urther clarified in article 3.


I ( ICSID C)

Amco Asia Corporation and Othersv.Republic o Indonesia

In its 1990 award on the merits, the arbitral tribunal constituted to hear the Amco

Indonesia Corporation and Othersv. Indonesiacase considered that draf article 3 provi-sionally adopted by the International Law Commission[55] 12 (as well as articles 5 and 10provisionally adopted), which it quoted in extenso, constituted an expression o acceptedprinciples o international law:

It is a generally accepted rule o international law, clearly stated in international awards and judge-ments and generally accepted in the literature, that a State has a duty to protect aliens and theirinvestments against unlawul acts committed by some o its citizens . . . I such acts are committedwith the active assistance o state-organs a breach o international law occurs. In this respect, theribunal wants to draw attention to the draf articles on State responsibility ormulated in 1979 bythe International Law Commission and presented to the General Assembly o the United Nations

as an expression o accepted principles o international law.[56] 13

[A/62/62, para. 10]

A ( ICSID C)

Compaia de Aguas del Aconquija SA and Vivendi Universal (ormerly Compagnie gn-rale des eaux)v.Argentine Republic

In its 2002 decision on annulment in the CAA and Vivendi Universalv.Argentinacase, the ad hoccommittee noted that, [i]n considering the [arbitral] ribunals findings

on the merits [in the award involved in the annulment proceedings], it is necessary to dis-tinguish between what the ribunal reerred to as, on the one hand, claims based directlyon alleged actions or ailures to act o the Argentine Republic and, on the other hand,

[55] 12Tis provision was amended and incorporated in article 2 adopted by the International LawCommission in 2001. Te text o draf article 3 provisionally adopted read as ollows:

Article 3

Elements o an internationally wrongul act o a State

Tere is an internationally wrongul act o a State when:

(a) Conduct consisting o an action or omission is attributable to the State under inter-national law; and

(b) Tat conduct constitutes a breach o an international obligation o the State. (Year-book . . . 1980, vol. II (Part wo), para. 34.)[56] 13ICSID,Amco Asia Corporation and Others v.Republic o Indonesia, award on the merits,

31 May 1990, para. 172 reproduced in International Law Reports, vol. 89, p. 457.


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claims relating to conduct o the [Argentine province o] ucumn authorities which arenonetheless brought against Argentina and rely . . . upon the principle o attribution.[57] 14

In a ootnote, the ad hoccommittee criticized the arbitral tribunals terminology on thebasis o the text o and commentaries to articles 2, 4 and 12 finally adopted by the Inter-national Law Commission:

. . . Te terminology employed by the ribunal in this regard is not entirely happy. All internationalclaims against a state are based on attribution, whether the conduct in question is that o a cen-tral or provincial government or other subdivision. SeeInternational Law Commission articles onresponsibility o States or internationally wrongul acts, annexed to General Assembly resolution54/83, 12 December 2001 . . . , articles 2(a), 4 and the Commissions commentary to article 4, paras.(8)-(10). A similar remark may be made concerning the ribunals later reerence to a strict liabilityo attribution . . . Attribution has nothing to do with the standard o liability or responsibility. Tequestion whether a States responsibility is strict or is based on due diligence or on some otherstandard is a separate issue rom the question o attribution (c. International Law Commissionarticles, arts. 2, 12). It does not, however, appear that either o these terminological issues affectedthe reasoning o the ribunal, and no more need be said o them.[58]15

[A/62/62, para. 11]

I

In the matter o an Ad hocArbitration under the Agreement between the Kingdom o theNetherlands and the Republic o Poland on Encouragement and Reciprocal Protection oInvestment between Eureko BV and Republic o Poland

In its 2005 partial award, the arbitral tribunal constituted to hear the Eureko BVv.Republic o Polandcase, in support o its finding that a State may be responsible or omis-sions by its organs, quoted the commentary to article 2 finally adopted by the InternationalLaw Commission in 2001.[59]16

[A/62/62, para. 12]

I ( NAFA ICSID AF R)

Firemans Fund Insurance Companyv.Te United Mexican StatesIn its 2006 award, the arbitral tribunal constituted to hear the Firemans Fund Insurance

Company v. Te United Mexican Statescase, in the first case under NAFA to be heard under

[57] 14ICSID,Ad HocCommittee, Compaia de Aguas del Aconquija SA and Vivendi Universal(ormerly Compagnie gnrale des eaux)v.Argentine Republic, Case No. ARB/97/3, decision o annul-ment, 3 July 2002, para. 16 (ootnote omitted), reproduced in ICSID ReviewForeign Investment LawJournal, vol. 19, No. 1, 2004, p. 100.

[58] 15Ibid., p. 100, para. 16, [ootnote] 17.[59]

16

In the matter o an Ad hocArbitration under the Agreement between the Kingdom o theNetherlands and the Republic o Poland on Encouragement and Reciprocal Protection o Investmentbetween Eureko BV and Republic o Poland, partial award, 19 August 2005, para. 188. Te arbitral tribu-nal reerred in particular to paragraph (4) o the commentary to article 2 ([Yearbook o the InternationalLaw Commission, 2001,vol. II (Part wo)], para. 77).


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Chapter Fourteen devoted to cross-border investment in Financial Services, considered themeaning o the term expropriation in article 1110(1) o NAFA. Upon a review o prior

decisions and customary international law in general, the tribunal identified a number oelements, including that expropriation requires a taking (which may include destruction)by a government-type authority o an investment by an investor covered by NAFA. In aootnote citing article 2 o the State responsibility articles, the tribunal added that:

[a] ailure to act (an omission) by a host State may also constitute a State measure tantamount toexpropriation under particular circumstances, although those cases will be rare and seldom concernthe omission alone.[60] 17

[A/65/76, para. 12]

I ( ICSID A F R)Archer Daniels Midland Company and ate & Lyle Ingredients Americas, Inc.v.theUnited Mexican States

In its 2007 award, the tribunal established to hear the case oArcher Daniels MidlandCompany and ate & Lyle Ingredients Americas, Inc. v.Mexicoconsidered article 2 asreflecting a rule applicable under customary international law.[61]8

[A/65/76, para. 13]

I ( ICSID C)

Biwater Gauff (anzania) Ltd.v.United Republic o anzania

In its 2008 award, the tribunal in the Biwater Gauff (anzania) Ltd.v.anzaniacase,considered the question as to whether actual economic loss or damage was necessary or acause o action relating to expropriation. Te tribunal held that the suffering o substan-tive and quantifiable economic loss by the investor [was] not a pre-condition or the find-ing o an expropriation under the bilateral investment treaty in question, but that wherethere had been substantial intererence with an investors rights, so as to amount to anexpropriation . . . there may be scope or a non-compensatory remedy or the expropria-tion (e.g. injunctive, declaratory or restitutionary relie). In coming to that conclusion, the

tribunal reerred to the commentary to article 2 o the State responsibility articles, wherethe Commission stated:

It is sometimes said that international responsibility is not engaged by conduct o a State in disregardo its obligations unless some urther element exists, in particular, damage to another State. Butwhether such elements are required depends on the content o the primary obligation, and there isno general rule in this respect.[62] 9

[A/65/76, para. 14]

[60] 7ICSID,Firemans Fund Insurance Companyv.Te United Mexican States, Case No. ARB(AF)/02/01, award, 17 July 2006, para. 176(a), ootnote 155.

[61] 8Archer Daniels Midland Company,cited in [ootnote] [3] 4 above, para. 275.[62] 9Biwater Gauff, cited in [ootnote] [5] 6 above, para. 466, citing paragraph (9) o the commen-

tary to article 2.


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Article 3. Characterization of an act of a State as internationally wrongful

Te characterization of an act of a State as internationally wrongful is governed byinternational law. Such characterization is not affected by the characterization of thesame act as lawful by internal law.

Commentary

(1) Article 3 makes explicit a principle already implicit in article 2, namely that thecharacterization o a given act as internationally wrongul is independent o its char-acterization as lawul under the internal law o the State concerned. Tere are two ele-ments to this. First, an act o a State cannot be characterized as internationally wrongulunless it constitutes a breach o an international obligation, even i it violates a provision

o the States own law. Secondly and most importantly, a State cannot, by pleading thatits conduct conorms to the provisions o its internal law, escape the characterization othat conduct as wrongul by international law. An act o a State must be characterizedas internationally wrongul i it constitutes a breach o an international obligation, eveni the act does not contravene the States internal laweven i, under that law, the Statewas actually bound to act in that way.

(2) As to the first o these elements, perhaps the clearest judicial decision is that o PCIJ inthe reatment o Polish Nationals case.[63] 75Te Court denied the Polish Government theright to submit to organs o the League o Nations questions concerning the application

to Polish nationals o certain provisions o the Constitution o the Free City o Danzig, onthe ground that:

according to generally accepted principles, a State cannot rely, as against another State, on theprovisions o the latters Constitution, but only on international law and international obligationsduly accepted . . . [C]onversely, a State cannot adduce as against another State its own Constitu-tion with a view to evading obligations incumbent upon it under international law or treaties inorce . . . Te application o the Danzig Constitution may . . . result in the violation o an inter-national obligation incumbent on Danzig towards Poland, whether under treaty stipulations orunder general international law . . . However, in cases o such a nature, it is not the Constitutionand other laws, as such, but the international obligation that gives rise to the responsibility o the

Free City.

[64] 76

(3) Tat conormity with the provisions o internal law in no way precludes conduct beingcharacterized as internationally wrongul is equally well settled. International judicialdecisions leave no doubt on that subject. In particular, PCIJ expressly recognized the prin-ciple in its first judgment, in theS.S. Wimbledon case. Te Court rejected the argumento the German Government that the passage o the ship through the Kiel Canal would haveconstituted a violation o the German neutrality orders, observing that:

a neutrality order, issued by an individual State, could not prevail over the provisions o the reatyo Peace. . . . under Article 380 o the reaty o Versailles, it was [Germanys] definite duty to allow

[63] 75 reatment o Polish Nationals and Other Persons o Polish Origin or Speech in the Danzig er-ritory, Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44,p. 4.

[64] 76Ibid., pp. 2425. See also Lotus,Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 24.


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[the passage o the Wimbledonthrough the Kiel Canal]. She could not advance her neutrality ordersagainst the obligations which she had accepted under this Article.[65] 77

Te principle was reaffirmed many times:

it is a generally accepted principle o international law that in the relations between Powers whoare contracting Parties to a treaty, the provisions o municipal law cannot prevail over those o thetreaty;[66] 78

. . . it is certain that France cannot rely on her own legislation to limit the scope o her internationalobligations;[67] 79

. . . a State cannot adduce as against another State its own Constitution with a view to evading obliga-tions incumbent upon it under international law or treaties in orce.[68] 80

A different acet o the same principle was also affirmed in the advisory opinions on Exchangeo Greek and urkish Populations[69]81andJurisdiction o the Courts o Danzig.[70] 82

(4) ICJ has ofen reerred to and applied the principle.[71] 83For example, in the Reparationor Injuries case, it noted that [a]s the claim is based on the breach o an internationalobligation on the part o the Member held responsible . . . the Member cannot contendthat this obligation is governed by municipal law.[72] 84In the ELSIcase, a Chamber o theCourt emphasized this rule, stating that:

Compliance with municipal law and compliance with the provisions o a treaty are different ques-tions. What is a breach o treaty may be lawul in the municipal law and what is unlawul in the

municipal law may be wholly innocent o violation o a treaty provision. Even had the Preect heldthe requisition to be entirely justified in Italian law, this would not exclude the possibility that it wasa violation o the FCN reaty.[73] 85

Conversely, as the Chamber explained:

the act that an act o a public authority may have been unlawul in municipal law does not nec-essarily mean that that act was unlawul in international law, as a breach o treaty or otherwise.

[65] 77S.S. Wimbledon(see ootnote [10] 34 above), pp. 2930.[66] 78Greco-Bulgarian Communities,Advisory Opinion, 1930, P.C.I.J., Series B, No. 17, p. 32.[67] 79Free Zones o Upper Savoy and the District o Gex, Order o 6 December 1930, P.C.I.J., Series

A, No. 24,p. 12; and ibid.,Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 96, at p. 167.[68] 80reatment o Polish Nationals(see ootnote [63] 75 above), p. 24.[69] 81Exchange o Greek and urkish Populations, Advisory Opinion, 1925, P.C.I.J., Series B, No.

10, p. 20.[70] 82Jurisdiction o the Courts o Danzig, Advisory Opinion, 1928, P.C.I.J., Ser ies B, No. 15,

pp. 2627. See also the observations o Lord Finlay inAcquisition o Polish Nationality, Advisory Opin-ion, 1923, P.C.I.J., Series B, No. 7, p. 26.

[71] 83See Fisheries, Judgment, I.C.J. Reports 1951, p. 116, at p. 132; Nottebohm, Preliminary Objec-tion, Judgment, I.C.J. Reports 1953, p. 111, at p. 123;Application o the Convention o 1902 Governing theGuardianship o Inants, Judgment, I.C.J. Reports 1958 , p. 55, at p. 67; andApplicability o the Obligationto Arbitrate under Section 21 o the United Nations Headquarters Agreement o 26 June 1947, AdvisoryOpinion, I.C.J. Reports 1988,p. 12, at pp. 3435, para. 57.

[72] 84Reparation or Injuries (see ootnote [14] 38 above), at p. 180.[73] 85Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 15, at p. 51, para. 73.


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A finding o the local courts that an act was unlawul may well be relevant to an argument thatit was also arbitrary; but by itsel, and without more, unlawulness cannot be said to amount toarbitrariness . . . Nor does it ollow rom a finding by a municipal court that an act was unjustified,

or unreasonable, or arbitrary, that that act is necessarily to be classed as arbitrary in internationallaw, though the qualification given to the impugned act by a municipal authority may be a valuableindication.[74] 86

Te principle has also been applied by numerous arbitral tribunals.[75] 87

(5) Te principle was expressly endorsed in the work undertaken under the auspices othe League o Nations on the codification o State responsibility,[76] 88as well as in the workundertaken under the auspices o the United Nations on the codification o the rights andduties o States and the law o treaties. Te Commissions draf Declaration on Rights andDuties o States, article 13, provided that:

Every State has the duty to carry out in good aith its obligations arising rom treaties and othersources o international law, and it may not invoke provisions in its constitution or its laws as anexcuse or ailure to perorm this duty.[77] 89

(6) Similarly this principle was endorsed in the 1969 Vienna Convention, article 27 owhich provides that:

[74] 86Ibid.,p. 74, para. 124.[75] 87See, e.g.,the Geneva Arbitration(theAlabama case), in Moore, History and Digest,vol. IV,

p. 4144, at pp. 4156 and 4157 (1872); Norwegian Shipowners Claims (Norwayv. United States o America),UNRIAA,vol. I (Sales No. 1948.V.2), p. 307, at p. 331 (1922);Aguilar-Amory and Royal Bank o CanadaClaims (inoco case) (Great Britainv. Costa Rica),ibid., p. 369, at p. 386 (1923); Shueldt Claim, ibid., vol.II (Sales No. 1949.V.1), p. 1079, at p. 1098 (it is a settled principle o international law that a sovereign cannot be permitted to set up one o his own municipal laws as a bar to a claim by a sovereign or a wrongdone to the latters subject) (1930); Wollemborg Case, ibid., vol. XIV (Sales No. 65.V.4), p. 283, at p. 289(1956); and Flegenheimer, ibid., p. 327, at p. 360 (1958).

[76] 88In point I o the request or inormation on State responsibility sent to States by the Prepara-tory Committee or the 1930 Hague Conerence it was stated:

In particular, a State cannot escape its responsibility under international law, i such respon-sibility exists, by appealing to the provisions o its municipal law.

In their replies, States agreed expressly or implicitly with this principle (see League o Nations, Coner-ence or the Codification o International Law, Bases o Discussion or the Conerence drawn up by thePreparatory Committee, vol. III: Responsibility o States or Damage caused in their erritory to the Personor Property o Foreigners(document C.75.M.69.1929.V), p. 16). During the debate at the 1930 HagueConerence, States expressed general approval o the idea embodied in point I and the Tird Committeeo the Conerence adopted article 5 to the effect that A State cannot avoid international responsibilityby invoking the state o its municipal law (document C.351(c) M.145(c).1930.V; reproduced in Yearbook. . . 1956, vol. II, p. 225, document A/CN.4/96, annex 3).

[77]

89

See General Assembly resolution 375 (IV) o 6 December 1949, annex. For the debate in theCommission, see Yearbook . . . 1949, pp. 105106, 150 and 171. For the debate in the Assembly, see OfficialRecords o the General Assembly, Fourth Session, Sixth Committee, 168th173rd meetings, 1825 October1949; 175th183rd meetings, 27 October3 November 1949; and ibid., Fourth Session, Plenary Meetings,270th meeting, 6 December 1949.


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A party may not invoke the provisions o its internal law as justification or its ailure to perorm atreaty. Tis rule is without prejudice to article 46.[78] 90

(7) Te rule that the characterization o conduct as unlawul in international law can-not be affected by the characterization o the same act as lawul in internal law makesno exception or cases where rules o international law require a State to conorm to theprovisions o its internal law, or instance by applying to aliens the same legal treatment asto nationals. It is true that in such a case, compliance with internal law is relevant to thequestion o international responsibility. But this is because the rule o international lawmakes it relevant, e.g. by incorporating the standard o compliance with internal law as theapplicable international standard or as an aspect o it. Especially in the fields o injury toaliens and their property and o human rights, the content and application o internal lawwill ofen be relevant to the question o international responsibility. In every case it will be

seen on analysis that either the provisions o internal law are relevant as acts in applyingthe applicable international standard, or else that they are actually incorporated in someorm, conditionally or unconditionally, into that standard.

(8) As regards the wording o the rule, the ormulation Te municipal law o a Statecannot be invoked to prevent an act o that State rom being characterized as wrongul ininternational law, which is similar to article 5 o the draf adopted on first reading at the1930 Hague Conerence and also to article 27 o the 1969 Vienna Convention, has the merito making it clear that States cannot use their internal law as a means o escaping interna-tional responsibility. On the other hand, such a ormulation sounds like a rule o procedure

and is inappropriate or a statement o principle. Issues o the invocation o responsibil-ity belong to Part Tree, whereas this principle addresses the underlying question o theorigin o responsibility. In addition, there are many cases where issues o internal law arerelevant to the existence or otherwise o responsibility. As already noted, in such cases it isinternational law which determines the scope and limits o any reerence to internal law.Tis element is best reflected by saying, first, that the characterization o State conduct asinternationally wrongul is governed by international law, and secondly by affirming thatconduct which is characterized as wrongul under international law cannot be excused byreerence to the legality o that conduct under internal law.

(9) As to terminology, in the English version the term internal law is preerred to munici-

pal law, because the latter is sometimes used in a narrower sense, and because the 1969Vienna Convention speaks o internal law. Still less would it be appropriate to use theterm national law, which in some legal systems reers only to the laws emanating rom thecentral legislature, as distinct rom provincial, cantonal or local authorities. Te principlein arti

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