The Conditions for International Responsibility
(p. 539) 25 The Conditions for International Responsibility
1. Configuring the Law of Responsibility1
In international relations as in other social relations, the invasion of the legal interest of one subject of the law by another creates responsibility in a form and to an extent determined by the applicable legal system. International responsibility is traditionally attributed to states as the major subjects of international law, but it is a broader question inseparable from legal personality in all its forms. As with the law of treaties, historically the issue of responsibility of states was treated first, and the potential for international organizations and individuals to make claims and to bear responsibility on the international plane (to the extent it exists at all) has been developed later and by analogy.
As also with the law of treaties, the law of responsibility has been largely articulated through the work of the ILC, here in three texts, the ILC Articles on Responsibility of States for Internationally Wrongful Acts of 2001 (ARSIWA),2 the ILC Articles on Diplomatic Protection of 2006,3 and the ILC Draft Articles on Responsibility of International Organizations of 2011.4 In this chapter, the focus will be on state responsibility and on ARSIWA.5
References(p. 540) Following an intuition of Roberto Ago,6 in all three projects the ILC focused on what he termed ‘secondary rules’, that is, the framework rules of attribution, breach, excuses, reparation, and response to breach (i.e. invocation)—as distinct from the primary obligations whose disregard gives rise to responsibility. The distinction is no doubt somewhat artificial—but any other course would have entailed a spelling out of the rights and duties of states generally, and these vary indefinitely between states depending on their treaty lists and general commitments.
Unlike the two Vienna Conventions of 1969 and 1986 on the law of treaties, the ILC Articles have not (or not yet) been reduced to treaty form. But even before 2001 and more especially since, they have been much cited and have acquired increasing authority as an expression of the customary law of state responsibility.7 This has led some authors and governments to conclude that a convention is not needed, and that a diplomatic conference could rupture the delicate equilibrium achieved by ARSIWA.8 Others, however, would like to see certain articles, especially those expressive of the idea of ‘multilateral responsibility’, reopened, a process likely to be interminable (or terminal).
2. The Basis and Character of State Responsibility
It is a general principle of international law that a breach of an international obligation entails the responsibility of the state concerned. Shortly, the law of responsibility is concerned with the incidence and consequences of unlawful acts, and particularly the forms of reparation for loss caused. However, the law may incidentally prescribe compensation for the consequences of legal or ‘excusable’ acts, and it is proper to consider this aspect in connection with responsibility in general.
In the early modern period treaties laid down particular duties and sometimes specified the liabilities and procedures to be followed in case of breach. But the inconvenience of (p. 541) private reprisals,9 the development of rules restricting forcible self-help, and the work of international tribunals have contributed towards a concept of responsibility more akin to that of national law. Of course the notions of reparation and restitution in the train of unlawful acts had long been part of the available stock of legal concepts in Europe, and the classical writers referred to reparation and restitution in connection with unjust war.10
(B) The Classification of International Wrongs
State responsibility is not based upon delict in the municipal sense, and ‘international responsibility’ relates both to breaches of treaty and to other breaches of obligation. There is no harm in using the term ‘delict’ to describe a breach of duty actionable by another legal person, but the term must be understood broadly; the term ‘tort’, also sometimes used,11 could mislead. The compendious term ‘international responsibility’ is widely used and is least confusing.
It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.…The Court has already said that reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself.14
Corfu Channel involved a finding that Albania was, by reason of its failure to warn of the danger, liable for the consequences of mine-laying in its territorial waters even though it had not laid the mines. The International Court said: ‘[t]hese grave, omissions involveReferences(p. 542) the international responsibility of Albania [which] is responsible under international law for the explosions which occurred…and for the damage and loss of human life which resulted from them’.15
The Court observes that the obligations in question in this case, arising from the terms of the Convention, and the responsibilities of States that would arise from breach of such obligations, are obligations and responsibilities under international law. They are not of a criminal nature.16
First, it must determine how far, legally, the acts in question may be regarded as imputable to the Iranian State. Secondly, it must consider their compatibility or incompatibility with the obligations of Iran under treaties in force or under any other rules of international law that may be applicable.19
In listing attribution and breach as the two elements of the internationally wrongful act, ARSIWA Article 2 reflects a long-standing jurisprudence.20
3. Attribution to the State
(A) General Aspects
Every breach of duty on the part of states must arise by reason of the act or omission of one or more organs or agents (although the 2001 Articles eschew theReferences(p. 543) terminology of agency). The status of the individual actor is only one factor in establishing attribution—in effect, a causal connection between the corporate entity of the state and the harm done.
There is no need for state agents to be the direct perpetrators of the unlawful act. In Corfu Channel Albania was held responsible for the consequences of mine-laying in her territorial waters by reason of the Albanian authorities’ knowledge and failure to warn of the presence of the mines. In fact (though the Court did not say this), the mines were laid by Yugoslavia. Similarly, a neutral state may be responsible for allowing armed expeditions to be fitted out within its jurisdiction which subsequently carry out belligerent operations against another state.21 Depending on the obligation in question, failure to ensure compliance may be attributed to the state even when the conduct was that of private entities. In Canada—Dairy(21.5 II), the WTO Appellate body observed that ‘irrespective of the role of private parties…the obligations…remain obligations imposed on Canada…The question is not whether one or more individual milk producers, efficient or not, are selling CEM at a price above or below their individual costs of production. The issue is whether Canada, on a national basis, has respected its WTO obligations’.22 With these extensive reservations, attention may be directed to the problems associated with particular categories of organs and persons.
(B) State Organs
Pursuant to ARSIWA Article 4, ‘the conduct of any State organ shall be considered an act of that State under international law’, regardless of the character of that organ and whatever functions it exercises. This is in line with established jurisprudence.23
(i) Executive and administration
It is undoubtedly a sound general principle that, whenever misconduct on the part of [persons in state service], whatever may be their particular status or rank under domestic law,References(p. 544) results in the failure of a nation to perform its obligations under international law, the nation must bear the responsibility for the wrongful acts of its servants.
Unreasonable acts of violence by police officers and a failure to take the appropriate steps to punish the culprits will also give rise to responsibility.26 In principle the distinction between higher and lower officials has no significance in terms of responsibility.27
More recently, the situation has grown more complex with the assumption by governments of functions of an economic and social character. On occasions, governments act not by agents of the state but by delegating governmental functions to para-statal entities. Companies with varying degrees of governmental participation, as well as regulatory agencies with varying degrees of independence, blur the usual public-private distinction and demand a detailed examination of their function in order to determine when their conduct is attributable to the state. ARSIWA tackles the issue by providing an open formulation: under Article 5, entities not formally state organs may still engage the responsibility of the latter when ‘empowered by the law of that State to exercise elements of the governmental authority’ and so long as they are ‘acting in that capacity in the particular instance’.
This formulation has been influential directly but also by analogy. In US— Anti-Dumping and Countervailing Duties (China), a WTO Panel had decided that a ‘public body’ for the purposes of the Agreement on Subsidies and Countervailing Measures was ‘any entity controlled by a government’, including a private corporation with more than 50 per cent government ownership, irrespective of its functions.28 On appeal, the Appellate Body recalled its earlier finding that ‘the essence of government is that it enjoys the effective power to regulate, control, or supervise individuals, or otherwise restrain their conduct, through the exercise of lawful authority’; ‘this meaning is derived, in part, from the functions performed by a government and, in part, from the government having the powers and authority to perform those functions’.29 It went on to reverse the finding of the Panel, providing a set of guidelines to determine whether an entity is a public body which draw in part on ARSIWA Article 5.30
This question has in fact two aspects, which the Court must consider separately. First, it should be ascertained whether the acts committed at Srebrenica were perpetrated by organs of the Respondent, i.e., by persons or entities whose conduct is necessarily attributable to it, because they are in fact the instruments of its action. Next, if the preceding question is answered in the negative, it should be ascertained whether the acts in question were committed by persons who, while not organs of the Respondent, did nevertheless act on the instruments of, or under the direction or control of, the Respondent.31
The Court decided that the Bosnian Serb militia did not have the status of organs, de iure or de facto, at the material time.32 The Court then moved to the further alternative argument of the Applicant, namely, that the actions at Srebrenica were committed by persons who, although not having the status of organs of the respondent, acted on its instructions or under its direction or control, applying ARSIWA Article 8. The Court concluded that there was no sufficient factual basis for finding the Respondent responsible on the basis of direction or control.33
(ii) Armed forces
The same principles applicable for the executive apply to members of the armed forces, but a higher standard of prudence in their discipline and control is required.34 In Kling, Commissioner Nielsen said: ‘[i]n cases of this kind it is mistaken action, error in judgment, or reckless conduct of soldiers for which a government in a given case has been held responsible. The international precedents reveal the application of principles as to the very strict accountability for mistaken action’.35 Another example of responsibility arising from mistaken but culpable action by units of the armed forces is the shooting down of a South Korean commercial aircraft by Soviet forces in 1983.36
The conduct of the UPDF as a whole is clearly attributable to Uganda, being the conduct of a State organ. According to a well-established rule of international law, which is of customaryReferences(p. 546) character, ‘the conduct of any organ of a State must be regarded as an act of that State’…In the Court’s view, by virtue of the military status and function of Ugandan soldiers in the DRC, their conduct is attributable to Uganda. The contention that the persons concerned did not act in the capacity of persons exercising governmental authority in the particular circumstances, is therefore without merit. It is furthermore irrelevant for the attribution of their conduct to Uganda whether the UPDF personnel acted contrary to the instructions given or exceeded their authority. According to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol 1 additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces.37
[T]he Court adopts as a starting point that the possibility that more than one party has ‘effective control’ is generally accepted, which means that it cannot be ruled out that the application of this criterion results in the possibility of attribution to more than one party. For this reason the Court will only examine if the State exercised ‘effective control’ over the alleged conduct and will not answer the question whether the UN also had ‘effective control’…
An important part of Dutchbat’s remaining task after 11 July 1995 consisted of the aid to and the evacuation of the refugees. During this transition period, besides the UN, the Dutch Government in The Hague had control over Dutchbat as well, because this concerned the preparations for a total withdrawal of Dutchbat from Bosnia and Herzegovina. In this respect [the commanding officer] fulfilled a double role because he acted on behalf of the UN and also on behalf of the Dutch Government. The fact that The Netherlands had control over Dutchbat was not only theoretical, this control was also exercised in practice…The Court concludes therefore that the State possessed ‘effective control’ over the alleged conduct of Dutchbat that is the subject of Nuhanovic’s claim and that this conduct can be attributed to the State.39
the United Nations’ role as regards security in Iraq in 2004 was quite different from its role as regards security in Kosovo in 1999…the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force and that the applicant’s detention was not, therefore, attributable to the United Nations…The internment took place within a detention facility in Basrah City, controlled exclusively by British forces, and the applicant was therefore within the authority and control of the United Kingdom throughout…40
In holding that the internment of Al-Jedda was attributable to the UK, the Court attached great weight to the lack of an SC resolution such as that for the deployment of forces to Kosovo in 1999. In making this formal distinction, it stopped short of considering, as the Dutch court did, that multiple entities may have ‘effective control’ over forces, and that effective control by a state makes the conduct of these forces attributable to the state regardless of the legal form taken by the operation. But both propositions are true.
(iii) Federal units, provinces, and other internal divisions41
A state cannot plead its own law, including its constitution, in answer to an international claim. ARSIWA Article 4 makes explicit reference to this, specifying that acts of a state organ are attributable to a state ‘whatever its character as an organ of the central government or of a territorial unit of the state’. Arbitral jurisprudence contains examples of the responsibility of federal states for acts of authorities of units of the federations.42 This was confirmed in LaGrand (Provisional Measures), where the Court observed that the governor of Arizona was legally empowered to take the action necessary to comply with the provisional measure, and stressed that, from the viewpoint of international law, the domestic distribution of functions between federated entities is irrelevant: ‘the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State, whatever they may be…the Governor of Arizona is under the obligation to act in conformity with the international undertakings of the United States’.43
References(p. 548) In Australia—Salmon, regarding a ban on imports of salmon imposed by Tasmania, the WTO Panel observed that ‘the Tasmanian ban is to be regarded as a measure taken by Australia, in the sense that it is a measure for which Australia, under both general international law and relevant WTO provisions, is responsible’.44 More controversially, the Inter-American Court of Human Rights has construed the ‘federal clause’ in the American Convention to imply state responsibility for the actions of federated units.45
(iv) The legislature
The legislature is in normal circumstances a vital part of state organization and gives expression to official policies by its enactments. The problem specific to this category is to determine when the breach of duty entails responsibility. Commonly, in the case of injury to aliens, a claimant must establish damage consequent on the implementation of legislation or the omission to legislate.46 However, it may happen that, particularly in the case of treaty obligations,47 the acts and omissions of the legislature are, without more, creative of responsibility.48For example, if a treaty creates a categorical obligation to incorporate certain rules in domestic law (as with uniform law treaties), failure to do so entails responsibility without proof of actual damage.
(v) The judicature
The activity of judicial organs relates substantially to the rubric ‘denial of justice’, which will be considered in chapter 29. However, the doings of courts may affect the responsibility of the forum state in other ways. Thus in respect of the application of treaties McNair states: ‘a State has a right to delegate to its judicial department the application and interpretation of treaties. If, however, the courts commit errors in that task or decline to give effect to the treaty or are unable to do so because the necessary change in, or addition to, the national law has not been made, their judgments involve the State in a breach of treaty’.49 In US—Shrimp, in response to the argument that discriminatory treatment had been a consequence of the government’s obligation to follow judicial decisions, the WTO Appellate Body affirmed that ‘[t]he United States, like all other members of the WTO and of the general community of states, bears responsibility for acts of all its departments of government, including its judiciary’.50
References(p. 549) In LaGrand51 and Avena,52 foreigners in the US had been condemned to capital punishment without regard for their consular rights under the Vienna Convention.53 In LaGrand (Provisional Measures), the Court ordered the stay of the executions, reminding the parties that ‘the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State, whatever they may be’.54Following the rejection of the order by the US courts, the ICJ adjudged ‘that the United States, by applying rules of its domestic law…violated its international obliga-tions’.55 Similarly, in Avena, the Court considered that ‘the rights guaranteed under the Vienna Convention are treaty rights which the United States has undertaken to comply with…the legal consequences of [a] breach have to be examined and taken into account in the course of review and reconsideration…the process of review and reconsideration should occur within the overall judicial proceedings relating to the individual defendant concerned’.56
(C) Ultra vires or Unauthorized Acts57
It has long been apparent in the sphere of domestic law that acts of public authorities which are ultra vires should not by that token create immunity from legal consequences for the state. In international law there is a clear reason for disregarding a plea of unlawfulness under domestic law: the lack of express authority cannot be decisive as to the responsibility of the state.
The State also bears an international responsibility for all acts committed by its officials or its organs which are delictual according to international law, regardless of whetherReferences(p. 550) the official or organ has acted within the limits of his competency or has exceeded those limits…However, in order to justify the admission of this objective responsibility of the State for acts committed by its officials or organs outside their competence, it is necessary that they should have acted, at least apparently, as authorized officials or organs, or that, in acting, they should have used powers or measures appropriate to their official character…59
In Youmans, the Commission stated: ‘[s]oldiers inflicting personal injuries or committing wanton destruction or looting always act in disobedience of some rules laid down by superior authority. There could be no responsibility whatever for such misdeeds if the view were taken that any acts committed by soldiers in contravention of instructions must always be considered as personal acts’.60
It is not always easy to distinguish personal acts and acts within the scope of (apparent) authority. In the case of higher organs and officials the presumption will be that there was an act within the scope of authority.61Where the standard of conduct required is very high, as in the case of military leaders and cabinet ministers in relation to control of armed forces, it may be quite inappropriate to use the dichotomy of official and personal acts: here, as elsewhere, much depends on the type of activity and the related consequences in the particular case.62
It is not difficult to find cases in which the acts of state agents were clearly ultra vires and yet responsibility has been affirmed. In the Zafiro the US was held responsible for looting by the civilian crew of a merchant vessel employed as a supply vessel by American naval forces, under the command of a merchant captain who in turn was under the orders of an American naval officer.63 The tribunal emphasized the failure to exercise proper control in the circumstances.64 What really matters, however, is the amount of control which ought to have been exercised in the particular circumstances, not the amount of actual control.65
The conduct of individual soldiers and officers of the UPDF [Uganda People’s Defence Force] is to be considered as the conduct of a State organ. In the Court’s view, by virtue of the military status and function of Ugandan soldiers in the DRC, their conduct is attributable to Uganda. The contention that the persons concerned did not act in the capacity of persons exercising governmental authority in the particular circumstances, is therefore without merit.66
[t]his conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law.67
(D) Mob Violence, Insurrection, Revolution, and Civil War68
The general principles considered below apply to a variety of situations involving acts of violence either by persons not acting as agents of the lawful government of a state, or by persons acting on behalf of a rival or candidate government set up by insurgents. The latter may be described as a ‘de facto government’. In the case of localized riots and mob violence, substantial neglect to take reasonable precautionary and preventive action and inattention amounting to outright indifference or connivance on the part of responsible officials may create responsibility for damage to foreign public and private property in the area.69 In the proceedings arising from the seizure of US diplomatic and consular staff as hostages in Tehran, the International Court based responsibility for breaches of the law of diplomatic relations upon the failure of the Iranian authorities to control the militants (in the early phase) and also upon the adoption and approval of the acts of the militants (at the later stage).70
References(p. 552) McNair extracts five principles from the reports of the legal advisers of the British Crown on the responsibility for the consequences of insurrection or rebellion. The first three principles are as follows:
(i) A State on whose territory an insurrection occurs is not responsible for loss or damage sustained by a foreigner unless it can be shown that the Government of that State was negligent in the use of, or in the failure to use, the forces at its disposal for the prevention or suppression of the insurrection;
(ii) this is a variable test, dependent on the circumstances of the insurrection;
(iii) such a State is not responsible for the damage resulting from military operations directed by its lawful government unless the damage was wanton or unnecessary, which appears to be substantially the same as the position of belligerent States in an international war.71
The general rule of non-responsibility rests on the premise that even objective responsibility requires a normal capacity to act, and a major internal upheaval is tantamount to force majeure. But uncertainty arises when the qualifications put upon the general rule are examined. There is general agreement among writers that the rule of non-responsibility cannot apply where the government concerned has failed to show due diligence.72However, the decisions of tribunals and the other sources offer no definition of ‘due diligence’. No doubt the application of this standard will vary according to the circumstances,73 yet, if ‘due diligence’ be taken to denote a fairly high standard of conduct the exception will overwhelm the rule. In a comment on the Harvard Research Draft it is stated that: ‘[i]nasmuch as negligence on the part of the government in suppressing an insurrection against itself is improbable, the claimant should be deemed to have the burden of showing negligence.’74
In fact there is no modern example of a state being held responsible for negligent failure to suppress insurgents. The ILC made the point in its commentary to ARSIWA Article 10, referring to ‘[t]he general principle that the conduct of an insurrectional or other movement is not attributable to the State…on the assumption that the structures and organization of the movement are and remain independent of those of the State…Exceptional cases may occur where the State was in a position to adopt measures of vigilance, prevention or punishment in respect of the movement’s conduct but improperly failed to do so’.75 There is older authority for the view that the granting of an amnesty to rebels constitutes a failure of duty and an acceptance of responsibility for their acts, but again this is doubtful absent conduct of the state amounting to complicity or adoption.76
References(p. 553) The other two principles propounded by McNair are generally accepted:
(iv) such a State is not responsible for loss or damage caused by the insurgents to a foreigner after that foreigner’s State has recognized the belligerency of the insurgents;
(v) such a State can usually defeat a claim in respect of loss or damage sustained by resident foreigners by showing that they have received the same treatment in the matter of protection or compensation, if any, as its own nationals (the plea of diligentia quam in suis).77
Victorious rebel movements are responsible—qua new government of the state—for unlawful acts or omissions by their forces occurring during the course of the con-flict.78 The state also remains responsible for the unlawful conduct of the previous government.