PART IV (A): Responsibility of States for internationally wrongful acts

ST/LEG/SER.B/25/Rev.1
United Nations Legislative Series
MATERIALS ON THE
RESPONSIBILITY OF STATES
FOR INTERNATIONALLY WRONGFUL ACTS
Second edition
UNITED NATIONS • NEW YORK, 2023
UNITED NATIONS PUBLICATION
Sales No. E.23.V.6
ISBN 978-92-1-133822-5
eISBN 978-92-1-056604-9
ISSN 0082‐8300
eISSN 2664‐2379
Copyright © 2023 United Nations
All rights reserved
ST/LEG/SER.B/25/Rev.1
iii
TABLE OF CONTENTS
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Explanatory note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Abbreviations . xi
Responsibility of States for internationally wrongful acts . . . . . . . 1
Part One. The Internationally wrongful act of a State . 9
Chapter I. General principles . 11
Article 1. Responsibility of a State for its internationally wrongful acts . . 11
Article 2. Elements of an internationally wrongful act of a State . . . . . . 21
Article 3. Characterization of an act of a State as internationally wrongful 34
Chapter II. Attribution of conduct to a State . 50
Article 4. Conduct of organs of a State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Article 5. Conduct of persons or entities exercising elements of governmental authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Article 6. Conduct of organs placed at the disposal of a State by another State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Article 7. Excess of authority or contravention of instructions . . . . . . . 124
Article 8. Conduct directed or controlled by a State . . . . . . . . . . . . . 136
Article 9. Conduct carried out in the absence or default of the official authorities . 161
Article 10. Conduct of an insurrectional or other movement . . . . . . . . . . . . . . . . . 164
Article 11. Conduct acknowledged and adopted by a State as its own . 171
Chapter III. Breach of an international obligation . . . . . . . . . . . . . . . . . . . . . . . 179
Article 12. Existence of a breach of an international obligation . . . . . . . . . . . . . . . 180
Article 13. International obligation in force for a State . . . . . . . . . . . . 188
Article 14. Extension in time of the breach of an international obligation . 196
Article 15. Breach consisting of a composite act . 212
Chapter IV. Responsibility of a State in connection with the act of another state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Article 16. Aid or assistance in the commission of an internationally wrongful act . 225
Article 17. Direction and control exercised over the commission of an internationally wrongful act . 232
Article 18. Coercion of another State . . . . . . . . . . . . . . . . . . . . . . 236
Article 19. Effect of this chapter . . . . . . . . . . . . . . . . . . . . . . . . . 238
Page
iv
Chapter V. Circumstances precluding wrongfulness . 239
Article 20. Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
Article 21. Self-defence . 247
Article 22. Countermeasures in respect of an internationally wrongful act . 250
Article 23. Force majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Article 24. Distress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
Article 25. Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
Article 26. Compliance with peremptory norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
Article 27. Consequences of invoking a circumstance precluding wrongfulness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
Part Two. Content of the international responsibility of a State . . . 305
Chapter I. General principles . 306
Article 28. Legal consequences of an internationally wrongful act . . . . . . . . . . . 307
Article 29. Continued duty of performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
Article 30. Cessation and non-repetition . 311
Article 31. Reparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Article 32. Irrelevance of internal law . 355
Article 33. Scope of international obligations set out in this Part . . . . . . . . . . . . . 358
Chapter II. Reparation for injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
Article 34. Forms of reparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
Article 35. Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Article 36. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
Article 37. Satisfaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415
Article 38. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
Article 39. Contribution to the injury . 438
Chapter III. Serious breaches of obligations under peremptory norms of general international law . 446
Article 40. Application of this chapter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
Article 41. Particular consequences of a serious breach of an obligation
under this chapter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454
Part Three. The implementation of the international responsibility of a State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
Chapter I. Invocation of the responsibility of a State . 461
Article 42. Invocation of responsibility by an injured State . 463
Article 43. Notice of claim by an injured State . 469
Article 44. Admissibility of claims . 472
Article 45. Loss of the right to invoke responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
Page
v
Article 46. Plurality of injured States . . . . . . . . . . . . . . . . . . . . . . 483
Article 47. Plurality of responsible States . 485
Article 48. Invocation of responsibility by a State other than
an injured State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490
Chapter II. Countermeasures . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Article 49. Object and limits of countermeasures . . . . . . . . . . . . . . . 502
Article 50. Obligations not affected by countermeasures . . . . . . . . . . . 509
Article 51. Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517
Article 52. Conditions relating to resort to countermeasures . . . . . . . . . . . . . . . . . 522
Article 53. Termination of countermeasures . 526
Article 54. Measures taken by States other than an injured State . . . . . . . . . . . . . 527
Part Four. General Provisions . 532
Article 55. Lex specialis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533
Article 56. Questions of State responsibility not regulated by these articles . 539
Article 57. Responsibility of an international organization . 541
Article 58. Individual responsibility . 544
Article 59. Charter of the United Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547
Annex I. Text of the articles . . . . . . . . . . . . . . . . . . . . . . . . . . . 549
Annex II. Table of cases arranged according to the articles . . . . . . . . . . . . . 561
Annex III. Alphabetical listing of cases . 653
Page

vii
Foreword
In 1950, the International Law Commission considered ways and means for making
customary international law more readily available, in accordance with article 24 of
its Statute. The Commission recommended, inter alia, that the General Assembly of the
United Nations should authorize the Secretariat to prepare and issue, with as wide a distribution
as possible, a Legislative Series containing the texts of current national legislation
on matters of international interest. In this connection, it was recommended that the Secretariat
should assemble and publish from time to time collections of the texts of national
legislation on special topics of general interest. The Legislative Series is prepared by the
Codification Division of the Office of Legal Affairs.
The first 24 volumes in the Legislative Series have addressed a broad range of special
topics of general interest relating, inter alia, to the law of the sea, the law of treaties, nationality,
diplomatic and consular law, international organizations, State succession, non-navigational
uses of international watercourses, jurisdictional immunities of States and their
property, the multilateral treaty-making process as well as the prevention and suppression
of international terrorism. The legal materials contained in this series have included not
only national legislation but also treaties, judicial decisions, diplomatic correspondence
and other relevant materials depending on the topic. The present volume of this series is
devoted to the topic of the responsibility of States for internationally wrongful acts.
In 2001, at its fifty-third session, the International Law Commission adopted the draft
articles on responsibility of States for internationally wrongful acts. In resolution 56/83 of
12 December 2001, the General Assembly took note of the articles, the text of which was
annexed to that resolution, and commended them to the attention of Governments without
prejudice to the question of their future adoption or other appropriate action. The General
Assembly commended again the articles to the attention of Governments without prejudice
to the question of their future adoption or other appropriate action, in 2004, 2007,
2010, 2013, 2016, 2019 and 2022.1
In resolution 59/35, the General Assembly also requested the Secretary-General, inter
alia, to prepare an initial compilation of decisions of international courts, tribunals and
other bodies referring to the articles.2 The compilation was subsequently updated on five
further occasions,3 on the basis of requests by the General Assembly in each resolution
adopted from 2007 onwards.4
1 See General Assembly resolutions 59/35 of 2 December 2004, 62/61 of 6 December 2007, 65/19
of 6 December 2010, 68/104 of 16 December 2013, 71/133 of 13 December 2016, 74/180 of 18 December
2019 and 77/97 of 7 December 2022.
2 See A/62/62 and Corr.1 and Add.1 (covering the period 1973 until April 2007).
3 See A/65/76 (covering the period from May 2007 until 31 January 2010); A/68/72 (covering the
period from February 2010 until 31 January 2013); A/71/80 and Add.1 (covering the period from February
2013 until 31 January 2016); A/74/83 (covering the period from February 2016 until 31 January 2019)
and A/77/74 83 (covering the period from February 2019 until 31 January 2022). In resolution 71/133 of
13 December 2016, the General Assembly also requested the preparation of a technical report listing, in
a tabular format, the references to the articles contained in the compilation of decisions of international
courts, tribunals and other bodies referring to the articles prepared since 2001, as well as references to
the articles made in submissions presented by Member States before international courts, tribunals and
other bodies since 2001. The request was repeated in resolution 74/180 of 18 December 2019. Two such
technical reports were prepared (see: A/71/80/Add.1 and A/77/74, annex).
4 See footnote 1 above.
viii
This collection of materials, in its second edition,5 reproduces the text of the articles, with commentaries thereto, as presented in the Yearbook of the International Law Commission,6 together with the compilation of decisions in which the articles and commentaries were referred to, by international courts, tribunals and other bodies,7 during the period from 1973 to 1996 when the draft articles were adopted on first reading, from 1996 to their adoption on second reading in 2001,8 and up to 31 January 2022, as contained in the five reports of the Secretary-General. The compilation of decisions recorded a combined total of 453 instances in which international courts, tribunals and other bodies had referred to the articles (both in their form prior to, and following, their adoption in 2001) and corresponding commentaries.
The collection of materials is organized in accordance with the structure of the articles as adopted in 2001, with each article (or Part or Chapter heading) presented together with its commentary, followed by the respective extract from the compilation of decisions prepared by the Secretary-General. The compilation of decisions reproduced the extracts of decisions in which the articles were referred to by international courts, tribunals or other bodies. Under each article, the extracts of decisions appeared in chronological order to reflect historical developments and to facilitate the understanding of decisions containing references to previous case law. In view of the number and length of those decisions, only the relevant extracts referring to the articles were included. Each extract was accompanied by a brief description of the context in which the statement was made by the international court, tribunal or other body. Only those extracts in which the articles were invoked as the basis for the decision or where the articles were referred to as reflecting the existing law governing the issue at hand were included. Submissions of parties invoking the articles, and opinions of judges appended to a decision were not included.
Annex I reproduces the articles on the responsibility of States for internationally wrongful acts. Annex II lists the various cases and decisions pertaining to each article, or part of the articles (where applicable), cited in both the commentaries and the extracts from the compilation of decisions. Annex III lists, in alphabetical order, all the cases and decisions cited in the present volume.
5 The first edition, published in 2012, reproduced the original compilation together with the first two subsequent Secretary-General reports (covering the period until 31 January 2010). See United Nations Sales No. E.12.V.12.
6 2001, vol. II (Part Two), para. 77.
7 Following a comprehensive review of the decisions of international, regional and sub-regional courts, tribunals and other bodies, the extracts reproduced in this volume were identified in the decisions of: the International Court of Justice; the International Criminal Court; the International Criminal Tribunal for Rwanda; the International Tribunal for the former Yugoslavia; the Special Court for Sierra Leone; the Special Tribunal for Lebanon; the International Tribunal for the Law of the Sea; the African Court on Human and Peoples’ Rights; the African Commission for Human Rights; the Caribbean Court of Justice; the European Court of Human Rights; the Court of Justice of the European Union; the General Court of the European Union; the European Commission of Human Rights; the Inter-American Court of Human Rights; the Economic Community of West African States Court of Justice; international arbitral tribunals; the Iran-United States Claims Tribunal; the United Nations Compensation Commission; the WTO Appellate Body; panels established under GATT and WTO; the Human Rights Committee; the Committee on Economic, Social and Cultural Rights; the Committee on the Elimination of Racial Discrimination; and the Committee on the Rights of the Child.
8 References to draft articles adopted prior to the final adoption of the articles in 2001 were included only when the draft article was incorporated in the final articles. In those cases, the text of the draft article was reproduced in a footnote accompanying the extract.
ix
Explanatory note
The respective original documents have been reproduced with minor changes, limited
to editorial modifications introduced to ensure the consistency of presentation within the
present volume.
In accordance with its Statute, the International Law Commission adopts “draft”
instruments, including “draft articles”. In the recent practice of the General Assembly,
when draft articles, as presented by the Commission, are taken note of by the Assembly
and annexed to one of its resolutions, the reference to “draft” is excluded. Accordingly, the
practice of the Secretariat has been to use “draft articles” when referring to the text in the
stages of preparation leading up to, and including, their adoption by the Commission. The
word “draft” is not included when making references to the “articles” in their contemporary
form, i.e. as subsequently annexed to a General Assembly resolution. This practice has
not been uniformly followed by the various courts and instances cited in the compilation
of decisions prepared by the Secretary-General. The respective methods of referring to the
articles, as reflected in the extracts, have been retained for reasons of historical accuracy.
A reference (in square brackets) to the United Nations document symbol (together
with the relevant paragraph or footnote number therein) has been added after each decision
extracted from the compilation of decisions prepared by the Secretary-General.
The footnotes in the present volume are numbered consecutively (in square brackets)
for ease of reference, and are presented together with the corresponding footnote numbers
appearing in the respective original documents.
With regard to the Annexes, where a title of a decision was presented in English in
one of the original documents, that title is retained. Where a title of a decision was not
reflected in English in the original documents, the title is reproduced in the language in
which it was presented in the English version of those documents.

xi
Abbreviations
AJIL American Journal of International Law
ACHPR African Commission on Human and Peoples’ Rights
ACtHPR African Court on Human and Peoples’ Rights
BIT bilateral investment treaty
BYBIL The British Yearbook of International Law
CCJ Caribbean Court of Justice
CERD Committee on the Elimination of Racial Discrimination
CESCR Committee on Economic, Social and Cultural Rights
CJEU Court of Justice of the European Union
CRC Committee on the Rights of the Child
DSU Dispute Settlement Understanding
EC European Community
Eur. Court H.R. European Court of Human Rights
ECOWAS Economic Community of West African States
EECC Eritrea-Ethiopia Claims Commission
FCN Treaty Treaty of Friendship, Commerce and Navigation
FRY Federal Republic of Yugoslavia
GATT General Agreement on Tariffs and Trade
GDR German Democratic Republic
HRC Human Rights Committee
IACHR Inter-American Commission on Human Rights
ICAO International Civil Aviation Organization
ICC International Chamber of Commerce
IACtHR Inter-American Court of Human Rights
ICC International Criminal Court
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICSID International Centre for Settlement of Investment Disputes
ICSID Additional
Facility Rules
RulesGoverning the Additional Facility for the Administration
of Proceedings by the Secretariat of the International Centre for
Settlement of Investment Disputes
ICSID Convention Convention on the Settlement of Investment Disputes between
States and Nationals of Other States
ICTY International Criminal Tribunal for the Former Yugoslavia
IFOR Implementation Force in Bosnia and Herzegovina
ILC International Law Commission
ILM International Legal Materials
ILR International Law Reports
Iran-U.S. C.T.R Iran-United States Claims Tribunal Reports
ITLOS International Tribunal for the Law of the Sea
IUSCT Iran-United States Claims Tribunal
MERCOSUR
Southern Common Market
NAFO
Northwest Atlantic Fisheries Organization
NAFTA
North American Free Trade Agreement
NATO
North Atlantic Treaty Organization
NYIL
Netherlands Yearbook of International Law
OSPAR Convention
Convention for the Protection of the Marine Environment of the North-East Atlantic
PCA
Permanent Court of Arbitration
PCIJ
Permanent Court of International Justice
RGDIP
Revue Générale de Droit International Public
SCC
Stockholm Chamber of Commerce
SCM Agreement
Agreement on Subsidies and Countervailing Measures
SFOR
Stabilization Force in Bosnia and Herzegovina
STL
Special Tribunal for Lebanon
UNCC
United Nations Compensation Commission
UNCITRAL
United Nations Commission on International Trade Law
UNCLOS
United Nations Convention on the Law of the Sea
UNIDROIT
International Institute for the Unification of Private Law
UNRIAA
United Nations Reports of International Arbitral Awards
WTO
World Trade Organization
1
RESPONSIBILITY OF STATES FOR INTERNATIONALLY
WRONGFUL ACTS
General commentary
(1) These articles seek to formulate, by way of codification and progressive development,
the basic rules of international law concerning the responsibility of States for their internationally
wrongful acts. The emphasis is on the secondary rules of State responsibility:
that is to say, the general conditions under international law for the State to be considered
responsible for wrongful actions or omissions, and the legal consequences which flow
therefrom. The articles do not attempt to define the content of the international obligations,
the breach of which gives rise to responsibility. This is the function of the primary
rules, whose codification would involve restating most of substantive customary and conventional
international law.
(2) Roberto Ago, who was responsible for establishing the basic structure and orientation
of the project, saw the articles as specifying:
the principles which govern the responsibility of States for internationally wrongful acts, maintaining
a strict distinction between this task and the task of defining the rules that place obligations on
States, the violation of which may generate responsibility … [I]t is one thing to define a rule and
the content of the obligation it imposes, and another to determine whether that obligation has been
violated and what should be the consequences of the violation.[1] 32
(3) Given the existence of a primary rule establishing an obligation under international law
for a State, and assuming that a question has arisen as to whether that State has complied
with the obligation, a number of further issues of a general character arise. These include:
(a) The role of international law as distinct from the internal law of the State concerned
in characterizing conduct as unlawful;
(b) Determining in what circumstances conduct is to be attributed to the State as a
subject of international law;
(c) Specifying when and for what period of time there is or has been a breach of an
international obligation by a State;
(d) Determining in what circumstances a State may be responsible for the conduct
of another State which is incompatible with an international obligation of the latter;
(e) Defining the circumstances in which the wrongfulness of conduct under international
law may be precluded;
(f) Specifying the content of State responsibility, i.e. the new legal relations that arise
from the commission by a State of an internationally wrongful act, in terms of cessation of
the wrongful act, and reparation for any injury done;
(g) Determining any procedural or substantive preconditions for one State to invoke
the responsibility of another State, and the circumstances in which the right to invoke
responsibility may be lost;
[1] 32 Yearbook … 1970, vol. II, p. 306, document A/8010/Rev.1, para. 66 (c).
2 General commentary
(h) Laying down the conditions under which a State may be entitled to respond to a breach of an international obligation by taking countermeasures designed to ensure the fulfilment of the obligations of the responsible State under these articles.
This is the province of the secondary rules of State responsibility.
(4) A number of matters do not fall within the scope of State responsibility as dealt with in the present articles:
(a) As already noted, it is not the function of the articles to specify the content of the obligations laid down by particular primary rules, or their interpretation. Nor do the articles deal with the question whether and for how long particular primary obligations are in force for a State. It is a matter for the law of treaties to determine whether a State is a party to a valid treaty, whether the treaty is in force for that State and with respect to which provisions, and how the treaty is to be interpreted. The same is true, mutatis mutandis, for other “sources” of international obligations, such as customary international law. The articles take the existence and content of the primary rules of international law as they are at the relevant time; they provide the framework for determining whether the consequent obligations of each State have been breached, and with what legal consequences for other States.
(b) The consequences dealt with in the articles are those which flow from the commission of an internationally wrongful act as such.[2] 33 No attempt is made to deal with the consequences of a breach for the continued validity or binding effect of the primary rule (e.g. the right of an injured State to terminate or suspend a treaty for material breach, as reflected in article 60 of the 1969 Vienna Convention). Nor do the articles cover such indirect or additional consequences as may flow from the responses of international organizations to wrongful conduct. In carrying out their functions it may be necessary for international organizations to take a position on whether a State has breached an international obligation. But even where this is so, the consequences will be those determined by or within the framework of the constituent instrument of the organization, and these fall outside the scope of the articles. This is particularly the case with action of the United Nations under the Charter, which is specifically reserved by article 59.
(c) The articles deal only with the responsibility for conduct which is internationally wrongful. There may be cases where States incur obligations to compensate for the injurious consequences of conduct which is not prohibited, and may even be expressly permitted, by international law (e.g. compensation for property duly taken for a public purpose). There may also be cases where a State is obliged to restore the status quo ante after some lawful activity has been completed. These requirements of compensation or restoration would involve primary obligations; it would be the failure to pay compensation, or to restore the status quo which would engage the international responsibility of the State concerned. Thus for the purposes of these articles, international responsibility results exclusively from a wrongful act contrary to international law. This is reflected in the title of the articles.
[2] 33 For the purposes of the articles, the term “internationally wrongful act” includes an omission and extends to conduct consisting of several actions or omissions which together amount to an internationally wrongful act. See paragraph (1) of the commentary to article 1.
General commentary 3
(d) The articles are concerned only with the responsibility of States for internationally wrongful conduct, leaving to one side issues of the responsibility of international organizations or of other non-State entities (see articles 57 and 58).
(5) On the other hand, the present articles are concerned with the whole field of State responsibility. Thus they are not limited to breaches of obligations of a bilateral character, e.g. under a bilateral treaty with another State. They apply to the whole field of the international obligations of 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 general in character, they are also for the most part residual. In principle, States are free, when establishing or agreeing to be bound by a rule, to specify that its breach shall entail only particular consequences and thereby to exclude the ordinary rules of responsibility. This is made clear by article 55.
(6) The present articles are divided into four parts. Part One is entitled “The internationally wrongful act of a State”. It deals with the requirements for the international responsibility of a State to arise. Part Two, “Content of the international responsibility of a State”, deals with the legal consequences for the responsible State of its internationally wrongful act, in particular as they concern cessation and reparation. Part Three is entitled “The implementation of the international responsibility of a State”. It identifies the State or States which may react to an internationally wrongful act and specifies the modalities by which this may be done, including, in certain circumstances, by the taking of countermeasures as necessary to ensure cessation of the wrongful act and reparation for its consequences. Part Four contains certain general provisions applicable to the articles as a whole.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Additional Facility Rules)
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the United Mexican States
In its 2007 award, the tribunal established to hear the case of Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. Mexico made the following assessment of the status of the State responsibility articles:
The Tribunal acknowledges the fact that the ILC Articles are the product of over five decades of ILC work. They represent in part the ‘progressive development’ of international law—pursuant to its UN mandate—and represent to a large extent a restatement of customary international law regarding secondary principles of state responsibility.[3] 4
[A/65/76, para. 9]
[3] 4 ICSID, Case No. ARB(AF)/04/05, Award, 21 November 2007, para. 116.
4 General commentary
International arbitral tribunal (under the ICSID Additional Facility Rules)
Corn Products International Inc. v. The United Mexican States
In its 2008 Decision on Responsibility, the tribunal established to consider the case of Corn Products International Inc. v. Mexico noted that it was “accepted” that the State responsibility articles constituted the “most authoritative statement” on the rules on State responsibility.[4] 5
[A/65/76, para. 10]
International arbitral tribunal (under the ICSID Convention)
Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania
The tribunal in the 2008 Biwater Gauff (Tanzania) Ltd. v. Tanzania case referred to the articles as “a codification of the rules of customary international law on the responsibility of States for their internationally wrongful acts”.[5] 6
[A/65/76, para. 11]
Ad hoc committee (under the ICSID Convention)
Sempra Energy International v. Argentine Republic
The ad hoc committee in Sempra Energy International v. Argentine Republic found that the rules of customary international law reflected in the articles did not necessarily enjoy a peremptory (jus cogens) status.[6] 4
[A/68/72, para. 8]
World Trade Organization panel
United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China
The panel established in the United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China case, as part of its analysis of the Agreement on Subsidies and Countervailing Measures SCM Agreement, considered whether the State responsibility articles (1) were “recognized in the WTO as ‘rules of international law applicable in the relations between the parties’ to the dispute”, and (2) whether the articles were “relevant” to the particular dispute at issue.[7] 5
[4] 5 ICSID, Case No. ARB(AF)/04/01, Decision on Responsibility, 15 January 2008, para. 76.
[5] 6 ICSID, Case No. ARB/05/22, Award, 24 July 2008, paras. 773 and 774.
[6] 4 ICSID, Case No. ARB/02/16, Decision on the Argentine Republic’s request for annulment of the award, 29 June 2010, para. 202 (“Jus cogens does not require parties to a bilateral investment treaty to forego the possibility of invoking a defence of necessity in whatever terms they may agree”). See also the discussion of the Decision under article 25, below.
[7] 5 WTO, Panel Report, WT/DS379/R, 22 October 2010, para. 8.87.
General commentary 5
On the first question, the panel indicated that, in its view, citations to the articles in prior WTO disputes “have been as conceptual guidance only to supplement, or confirm, but not to replace, the analyses based on the ordinary meaning, context and object and purpose of the relevant covered Agreements”.[8] 6 In addition, the panel referenced cases where “panels and the Appellate Body have made explicit that the Draft Articles are not binding”, and thus found that there was “no basis for the assertion that as a general matter the Appellate Body and panels have found that the Draft Articles must be taken into account as ‘rules of international law applicable in the relations between parties’ in interpreting the WTO Agreement … ”.[9] 7
The panel also noted that the articles are “not concerned with the substance of the underlying international obligations, but are rather concerned with determining whether a state is or is not responsible for a given action that may constitute a substantive breach of such an obligation”.[10] 8 The panel concluded that the articles were not “relevant rules of international law applicable to the relations between the parties’, such that [it] should ‘take them into account, together with the context’ in the sense of Article 31(3)(c) of the Vienna Convention [on the Law of Treaties, 1969].”[11] 9
[A/68/72, paras. 9–11]
International Tribunal for the Law of the Sea (Seabed Disputes Chamber)
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area
In its advisory opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, the Seabed Disputes Chamber indicated that, as confirmed by the State responsibility articles, “[t]he failure by a Sponsoring State to meet its obligations not resulting in material damage is covered by customary law which does not make damage a requirement for the liability of States.”[12] 10
[A/68/72, para. 12]
World Trade Organization Appellate Body
United States—Definitive Anti‑Dumping and Countervailing Duties on Certain Products from China
In its report reviewing the panel report in the United States—Definitive Anti‑Dumping and Countervailing Duties on Certain Products from China case (see above), the Appellate Body stated that:
[8] 6 Ibid.
[9] 7 Ibid., para. 8.89.
[10] 8 Ibid., para. 8.90. For discussion of the panel’s consideration of the State responsibility article on lex specialis, see the discussion of the Panel Report under article 55.
[11] 9 Ibid., para. 8.91.
[12] 10 ITLOS, Seabed Disputes Chamber, Case No. 17, Advisory Opinion, 1 February 2011, para. 210.
6 General commentary
… the Panel misconstrued the role of the ILC Articles when it set out to analyze ‘whether [the ILC Articles] would override [the Panel’s] analysis and conclusions based on the text of the SCM Agreement itself’. The question is not whether intermediate results of one element of the interpretative exercise ‘override’ the results of another. Rules of international law within the meaning of Article 31(3)(c) are one of several means to ascertain the common intention of the parties to a particular agreement reflected in Article 31 of the Vienna Convention [on the Law of Treaties].[13] 11
The Appellate Body continued by noting that:
[w]e are puzzled by the Panel’s statement that the ILC Articles have been cited by panels and the Appellate Body ‘as conceptual guidance only to supplement or confirm, but not to replace, the analyses based on the ordinary meaning, context and object and purpose of the relevant covered Agreements’.[14] 12
While the WTO panel, as noted previously, found that panels and the Appellate Body had not considered the State responsibility articles to constitute rules of international law in the sense of article 31(3)(c) of the Vienna Convention on the Law of Treaties, the Appellate Body observed that prior WTO jurisprudence “evinces that these ILC Articles have been ‘taken into account’ in the sense of Article 31(3)(c) by panels and the Appellate Body … ”.[15] 13
[A/68/72, paras. 13–15]
European Court of Human Rights
Kotov v. Russia
In Kotov v. Russia, the European Court of Human Rights referred to the State responsibility articles as “codified principles developed in modern international law in respect of the State’s responsibility for internationally wrongful acts”.[16] 14
[A/68/72, para. 16]
International arbitral tribunal (under the ICSID Convention)
The Rompetrol Group N.V. v. Romania
The arbitral tribunal in The Rompetrol Group N.V. v. Romania acknowledged that although the status of the State responsibility articles remains that of a draft, the “degree of approval accorded to them by the UN General Assembly and in subsequent international practice amply justifies treating the draft Articles as guidelines for present purposes”.[17] 5
[A/71/80, para. 8]
[13] 11 WTO, Appellate Body, WT/DS379/AB/R, 11 March 2011, para. 312 (quoting the Panel Report (footnote [7] 5 above), para. 8.84).
[14] 12 Ibid., para. 313 (quoting the Panel Report (footnote [7] 5 above), para. 8.87).
[15] 13 Ibid., para. 313.
[16] 14 ECHR, Grand Chamber, Application No. 54522/00, Judgment, 3 April 2012, para. 30.
[17] 5 ICSID, Case No. ARB/06/3, Award, 6 May 2013, para. 189 (footnotes omitted).
General commentary 7
ConocoPhillips Petrozuata B.V., and others v. Bolivarian Republic of Venezuela
In ConocoPhillips Petrozuata B.V., and others v. Bolivarian Republic of Venezuela, the arbitral tribunal indicated that the State responsibility articles “have been regularly referred to in subsequent decisions, including ICSID awards and decisions, as codifying or declaring customary international law”.[18] 6
[A/71/80, para. 9]
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
The arbitral tribunal in Hulley Enterprises Limited (Cyprus) v. The Russian Federation noted that the substantive law applied by the tribunal also consisted of “principles of international law, including those authoritatively set out in the Articles on Responsibility of States for Internationally Wrongful Acts of the International Law Commission of the United Nations”.[19] 7
[A/71/80, para. 10]
European Court of Human Rights
Samsonov v. Russia
In Samsonov v. Russia, the European Court of Human Rights stated that the State responsibility articles “ont codifié les principes dégagés par le droit international moderne concernant la responsabilité de l’Etat pour fait internationalement illicite”.[20] 8
[A/71/80, para. 11]
Liseytseva and Maslov v. Russia
The European Court of Human Rights in Liseytseva and Maslov v. Russia, recognized the State responsibility articles and their commentaries as “codified principles developed in modern international law in respect of the State’s responsibility for internationally wrongful acts”.[21] 9
[A/71/80, para. 12]
[18] 6 ICSID, Case No. ARB/07/30, Decision on Jurisdiction and Merits, 3 September 2013, para. 339.
[19] 7 PCA, Case No. AA 226, Final Award 18 July 2014, para. 113, specifically citing articles 1–11, 28–39 and 49–54. Hereinafter the reference to Hulley Enterprises Limited (Cyprus) v. The Russian Federation includes the references to two largely identical awards (with the exception of the quantification of damages), Yukos Universal Limited (Isle of Man) v. The Russian Federation, PCA Case No. AA 227, Final Award, 18 July 2014 and Veteran Petroleum Limited (Cyprus) v. The Russian Federation, PCA Case No. AA 228, Final Award, 18 July 2014.
[20] 8 ECHR, First Section, Application No. 2880/10, Decision, 16 September 2014, para. 45.
[21] 9 ECHR, First Section, Application Nos. 39483/05 and 40527/10, Judgment, 9 October 2014, para. 128.
8 General commentary
International arbitral tribunal (under the ICSID Convention)
Electrabel S.A. v. Republic of Hungary
In Electrabel S.A. v. Republic of Hungary, the arbitral tribunal referred to the State responsibility articles as a “codification of customary international law”.[22] 10
[A/71/80, para. 13]
[22] 10 ICSID, Case No. ARB/07/19, Award, 25 November 2015, para. 7.60.
9
Part One
THE INTERNATIONALLY WRONGFUL ACT OF A STATE
Part One defines the general conditions necessary for State responsibility to arise. Chapter I lays down three basic principles for responsibility from which the articles as a whole proceed. Chapter II defines the conditions under which conduct is attributable to the State. Chapter III spells out in general terms the conditions under which such conduct amounts to a breach of an international obligation of the State concerned. Chapter IV deals with certain exceptional cases where one State may be responsible for the conduct of another State not in conformity with an international obligation of the latter. Chapter V defines the circumstances precluding the wrongfulness for conduct not in conformity with the international obligations of a State.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Iran-United States Claims Tribunal
Rankin v. Islamic Republic of Iran
In its 1987 award in the Rankin v. Islamic Republic of Iran case, the Tribunal, in determining whether it had jurisdiction over the case, considered that Part One of the articles provisionally adopted by the International Law Commission in 1980 constituted “the most recent and authoritative statement of current international law” on the origin of State responsibility for internationally wrongful acts:[23] 4
… the Tribunal observes that only injuries resulting from popular movements which are not an act of the Government of Iran are excluded from the Tribunal’s jurisdiction by this provision [i.e., paragraph 11 of the Declaration of the Government of Algeria of 19 January 1981[24] 5], which exclusion is no more than a restatement of the customary international law requirement that a State’s responsibility is engaged only by wrongful conduct attributable to the State. Such conduct has in recent years come under the scrutiny of the United Nations International Law Commission, culminating in the development of a set of draft articles on the origins of State responsibility for internationally wrongful acts. The Tribunal has adopted the criteria set down by the International Law Commission as the most recent and authoritative statement of current international law in this area. See draft articles on State responsibility (Part 2 of the draft) as provisionally adopted by the International Law Commission, cited 1980 Yearbook of the International Law Commission, vol. II, Part Two at
[23] 4 Part One of the articles provisionally adopted by the International Law Commission (entitled “Origin of international responsibility”) became, with amendments, Part One of the articles finally adopted in 2001.
[24] 5 Under paragraph 11 of the Declaration of the Government of Algeria of 19 January 1981, the United States of America agreed to “bar and preclude prosecution against Iran of any pending or future claim … arising out of events occurring before the date of this Declaration related to … (d) injury to the United States nationals or their property as a result of popular movements in the course of the Islamic Revolution in Iran which were not an act of the Government of Iran”.
10 Part One
pp. 30–34, United Nations doc. A/CN.4/SER.A/1980/Add.1 (Part 2); accord Alfred L.W. Short v. The
Islamic Republic of Iran, Award No. 312–11135–3 (14 July 1987).[25] 6
In furtherance of this finding, the Tribunal later referred to draft articles 5 to 10 provisionally
adopted by the International Law Commission as the legal basis
to examine the circumstances of each departure [of United States citizens from the Islamic Republic
of Iran] and to identify the general and specific acts relied on and evidenced to determine how they
affected or motivated at that time the individual who now is alleging expulsion and whether such
acts are attributable to Iran.[26] 7
[A/62/62, para. 7]
International arbitral tribunal (under the ICSID Convention)
Burlington Resources Inc. v. Republic of Ecuador
The arbitral tribunal in Burlington Resources Inc. v. Republic of Ecuador referred generally
to the State responsibility articles in support of the assertion that “someone’s breach
of an obligation corresponds to the breach of another’s right”.[27] 15
[A/68/72, para. 17]
[25] 6 IUSCT, Award No. 326–10913–2, 3 November 1987, Iran-United States Claims Tribunal
Reports, vol. 17 (1987-IV), p. 141, para. 18. The relevant extract of the previous case referred to in this
passage (Short v. Islamic Republic of Iran) is reported [on pp. 168–169] below.
[26] 7 Ibid., pp. 147–148, para. 30.
[27] 15 ICSID, Case No. ARB/08/5, Decision on Liability, 14 December 2012, para. 214, footnote 355.
11
Chapter I
GENERAL PRINCIPLES
Article 1. Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international responsibility
of that State.
Commentary
(1) Article 1 states the basic principle underlying the articles as a whole, which is that a
breach of international law by a State entails its international responsibility. An internationally
wrongful act of a State may consist in one or more actions or omissions or a combination
of both. Whether there has been an internationally wrongful act depends, first,
on the requirements of the obligation which is said to have been breached and, secondly, on
the framework conditions for such an act, which are set out in Part One. The term “international
responsibility” covers the new legal relations which arise under international law
by reason of the internationally wrongful act of a State. The content of these new legal
relations is specified in Part Two.
(2) PCIJ applied the principle set out in article 1 in a number of cases. For example, in the
Phosphates in Morocco case, PCIJ affirmed that when a State commits an internationally
wrongful act against another State international responsibility is established “immediately as
between the two States”.[28] 34 ICJ has applied the principle on several occasions, for example in
the Corfu Channel case,[29] 35 in the Military and Paramilitary Activities in and against Nicaragua
case,[30] 36 and in the Gabčíkovo-Nagymaros Project case.[31] 37 The Court also referred to
the principle in its advisory opinions on Reparation for Injuries,[32] 38 and on the Interpretation
of Peace Treaties (Second Phase),[33] 39 in which it stated that “refusal to fulfil a treaty obligation
involves international responsibility”.[34] 40 Arbitral tribunals have repeatedly affirmed
the principle, for example in the Claims of Italian Nationals Resident in Peru cases,[35] 41 in
[28] 34 Phosphates 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 Chorzów, Jurisdiction, Judgment No. 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.
[29] 35 Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 4, at p. 23.
[30] 36 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 14, at p. 142, para. 283, and p. 149, para. 292.
[31] 37 Gabčíkovo-Nagymaros Project [(Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7], at
p. 38, para. 47.
[32] 38 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J.
Reports 1949, p. 174, at p. 184.
[33] 39 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 221.
[34] 40 Ibid., p. 228.
[35] 41 Seven of these awards rendered in 1901 reiterated that “a universally recognized principle of
international law states that the State is responsible for the violations of the law of nations committed by
12 Article 1
the Dickson Car Wheel Company case,[36] 42 in the International Fisheries Company case,[37] 43
in the British Claims in the Spanish Zone of Morocco case[38] 44 and in the Armstrong Cork
Company case.[39] 45 In the “Rainbow Warrior” case,[40] 46 the arbitral tribunal stressed that “any
violation by a State of any obligation, of whatever origin, gives rise to State responsibility”.[41] 47
(3) That every internationally wrongful act of a State entails the international responsibility
of that State, and thus gives rise to new international legal relations additional to
those which existed before the act took place, has been widely recognized, both before[42] 48
and since[43] 49 article 1 was first formulated by the Commission. It is true that there were
early differences of opinion over the definition of the legal relationships arising from an
internationally wrongful act. One approach, associated with Anzilotti, described the legal
consequences deriving from an internationally wrongful act exclusively in terms of a binding
bilateral relationship thereby established between the wrongdoing State and the injured
State, in which the obligation of the former State to make reparation is set against the
“subjective” right of the latter State to require reparation. Another view, associated with
Kelsen, started from the idea that the legal order is a coercive order and saw the authorization
accorded to the injured State to apply a coercive sanction against the responsible State
as the primary legal consequence flowing directly from the wrongful act.[44] 50 According
to this view, general international law empowered the injured State to react to a wrong; the
obligation to make reparation was treated as subsidiary, a way by which the responsible
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 (Miglia claim)).
[36] 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).
[37] 43 International Fisheries Company (U.S.A.) v. United Mexican States, ibid., p. 691, at p. 701 (1931).
[38] 44 According to the arbitrator, Max Huber, it is an indisputable principle that “responsibility is
the necessary corollary of rights. All international rights entail international responsibility”, UNRIAA,
vol. II (Sales No. 1949.V.1), p. 615, at p. 641 (1925).
[39] 45 According to the Italian-United States Conciliation Commission, no State may “escape the
responsibility arising out of the exercise of an illicit action from the viewpoint of the general principles
of international law”, UNRIAA, vol. XIV (Sales No. 65.V.4), p. 159, at p. 163 (1953).
[40] 46 Case concerning the difference between New Zealand and France concerning the interpretation
or application of two agreements concluded on 9 July 1986 between the two States and which related to the
problems arising from the Rainbow Warrior affair, UNRIAA, vol. XX (Sales No. E/F.93.V.3), p. 215 (1990).
[41] 47 Ibid., p. 251, para. 75.
[42] 48 See, e.g., D. Anzilotti, Corso di diritto internazionale, 4th ed. (Padua, CEDAM, 1955) vol. I,
p. 385; W. Wengler, Völkerrecht (Berlin, Springer, 1964), vol. I, p. 499; G. I. Tunkin, Teoria mezhdunarodnogo
prava (Moscow, Mezhdunarodnye otnoshenia, 1970), p. 470, trans. W. E. Butler, Theory of International
Law (London, George Allen and Unwin, 1974), p. 415; and E. Jiménez de Aréchaga, “International
responsibility”, Manual of Public International Law, M. Sørensen, ed. (London, Macmillan, 1968), p. 533.
[43] 49 See, e.g., I. Brownlie, Principles of Public International Law, 5th ed. (Oxford University Press,
1998), p. 435; B. Conforti, 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 générale
de droit et de jurisprudence, 1999), p. 742; P.-M. Dupuy, Droit international public, 4th ed. (Paris, Dalloz,
1998), p. 414; and R. Wolfrum, “Internationally wrongful acts”, Encyclopedia of Public International Law,
R. Bernhardt, ed. (Amsterdam, North-Holland, 1995), vol. II, p. 1398.
[44] 50 See H. Kelsen, Principles of International Law, 2nd ed., R. W. Tucker, ed. (New York, Holt,
Rinehart and Winston, 1966), p. 22.
Article 1 13
State could avoid the application of coercion. A third view, which came to prevail, held that
the consequences of an internationally wrongful act cannot be limited either to reparation
or to a “sanction”.[45] 51 In international law, as in any system of law, the wrongful act may
give rise to various types of legal relations, depending on the circumstances.
(4) Opinions have also differed on the question whether the legal relations arising from the
occurrence of an internationally wrongful act were essentially bilateral, i.e. concerned only
the relations of the responsible State and the injured State inter se. Increasingly it has been
recognized that some wrongful acts engage the responsibility of the State concerned towards
several or many States or even towards the international community as a whole. A significant
step in this direction was taken by ICJ in the Barcelona Traction case when it noted that:
an essential distinction should be drawn between the obligations of a State towards the international
community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By
their very nature the former are the concern of all States. In view of the importance of the rights involved,
all States can be held to have a legal interest in their protection; they are obligations erga omnes.[46] 52
Every State, by virtue of its membership in the international community, has a legal interest
in the protection of certain basic rights and the fulfilment of certain essential obligations.
Among these the Court instanced “the outlawing of acts of aggression, and of genocide,
as also … the principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination”.[47] 53 In later cases the Court
has reaffirmed this idea.[48] 54 The consequences of a broader conception of international
responsibility must necessarily be reflected in the articles which, although they include
standard bilateral situations of responsibility, are not limited to them.
(5) Thus the term “international responsibility” in article 1 covers the relations which
arise under international law from the internationally wrongful act of a State, whether
such relations are limited to the wrongdoing State and one injured State or whether they
extend also to other States or indeed to other subjects of international law, and whether
they are centred on obligations of restitution or compensation or also give the injured State
the possibility of responding by way of countermeasures.
(6) The fact that under article 1 every internationally wrongful act of a State entails the
international responsibility of that State does not mean that other States may not also
be held responsible for the conduct in question, or for injury caused as a result. Under
chapter II the same conduct may be attributable to several States at the same time. Under
chapter IV, one State may be responsible for the internationally wrongful act of another,
for example if the act was carried out under its direction and control. Nonetheless the basic
[45] 51 See, e.g., R. Ago, “Le délit international”, Recueil des cours … , 1939–II (Paris, Sirey, 1947),
vol. 68, p. 415, at pp. 430–440; and L. Oppenheim, International Law: A Treatise, vol. I, Peace, 8th ed.,
H. Lauterpacht, ed. (London, Longmans, Green and Co., 1955), pp. 352–354.
[46] 52 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J.
Reports 1970, p. 32, para. 33.
[47] 53 Ibid., para. 34.
[48] 54 See East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, at p. 102, para. 29;
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 258,
para. 83; and Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 595, at pp. 615–616, paras. 31–32.
14 Article 1
principle of international law is that each State is responsible for its own conduct in respect
of its own international obligations.
(7) The articles deal only with the responsibility of States. Of course, as ICJ affirmed in
the Reparation for Injuries case, the United Nations “is a subject of international law and
capable of possessing international rights and duties … it has capacity to maintain its
rights by bringing international claims”.[49] 55 The Court has also drawn attention to the
responsibility of the United Nations for the conduct of its organs or agents.[50] 56 It may be
that the notion of responsibility for wrongful conduct is a basic element in the possession
of international legal personality. Nonetheless, special considerations apply to the responsibility
of other international legal persons, and these are not covered in the articles.[51] 57
(8) As to terminology, the French term fait internationalement illicite is preferable to délit
or other similar expressions which may have a special meaning in internal law. For the
same reason, it is best to avoid, in English, such terms as “tort”, “delict” or “delinquency”,
or in Spanish the term delito. The French term fait internationalement illicite is better than
acte internationalement illicite, since wrongfulness often results from omissions which
are 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 internacionalmente
ilícito is adopted in the Spanish text. In the English text, it is necessary to
maintain the expression “internationally wrongful act”, since the French fait has no exact
equivalent; nonetheless, the term “act” is intended to encompass omissions, and this is
made clear in article 2.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International Tribunal for the Former Yugoslavia
Prosecutor v. Tihomir Blaškić (“Lasva Valley”)
In its 1997 decision on the objection of the Republic of Croatia to the issuance of subpoenae
duces tecum in the Blaškić case, which was later submitted to review by the Appeals
Chamber,[52] 8 Trial Chamber II of the International Tribunal for the Former Yugoslavia,
in considering whether individuals could be subject to orders (more specifically subpoe-
[49] 55 Reparation for Injuries (footnote [32] 38 above), p. 179.
[50] 56 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission
on Human Rights, Advisory Opinion, I.C.J. Reports 1999, p. 62, at pp. 88–89, para. 66.
[51] 57 For the position of international organizations, see article 57 and commentary.
[52] 8 In this decision, Trial Chamber II considered that “it is incumbent upon an individual acting
in an official capacity to comply with the orders of the International Tribunal” (International Tribunal
for the Former Yugoslavia, Trial Chamber II, Prosecutor v. Tihomir Blaškić (“Lasva Valley”), Decision on
the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, Case No. IT-95–14,
18 July 1997, para. 96) and therefore reinstated the subpoena duces tecum issued on 15 January 1997 by
Judge McDonald to the Republic of Croatia and the Croatian Defence Minister, Mr. Gojko Susak (ibid.,
disposition). The Appeals Chamber, on the contrary, later found that “the International Tribunal may
not address binding orders under Article 29 to State officials acting in their official capacity” and thus
quashed the subpoena duces tecum (International Tribunal for the Former Yugoslavia, Appeals Chamber,
Prosecutor v. Tihomir Blaškić (“Lasva Valley”), Judgement on the Request of the Republic of Croatia for
Article 1 15
nae duces tecum) from the Tribunal, quoted the text of draft article 1 adopted on first reading,[53] 9 which it considered to be an “established rule of international law”:
If the individual complies with the order in defiance of this government, he may face the loss of his position and possibly far greater sanctions than need be mentioned here. Given the International Tribunal’s lack of police power, it would be very difficult to provide adequate protection for an official who so defied his State. Based on the principle ultra posse nemo tenetur, which states that one should not be compelled to engage in a behaviour that is nearly impossible, it may not be proper to compel an individual to comply with such an order in his official capacity in such circumstances. However, these concerns must be balanced with the need of the International Tribunal to obtain the information necessary for a just and fair adjudication of the criminal charges before it. Due to these concerns and noting the established rule of international law that “[e]very internationally wrong act of a State entails the international responsibility of that State”, the duty to comply in such a scenario must be placed on the State, with appropriate sanctions or penalties for non-compliance … [54] 10
[A/62/62, para. 8]
International arbitral tribunal
Eureko B.V. v. Republic of Poland
In its 2005 partial award, the arbitral tribunal constituted to hear the Eureko BV v. Republic of Poland case, in support of its finding that a State may be responsible for omissions by its organs, quoted the commentary to article 1 finally adopted by the International Law Commission in 2001.[55] 11
[A/62/62, para. 9]
International arbitral tribunal (under the ICSID Convention)
El Paso Energy International Company v. The Argentine Republic
The arbitral tribunal in El Paso Energy International Company v. The Argentine Republic referred to articles 1 and 3 of the State responsibility articles in determining that “the primary governing law in this case is the BIT, supplemented by international law to which the BIT itself makes reference in various provisions”.[56] 16
[A/68/72, para. 18]Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95–14, 29 October 1997, disposition). On the Appeals Chamber judgement, see [pp. 52–53] below.
[53] 9 This provision was reproduced without change in article 1 finally adopted by the International Law Commission in 2001.
[54] 10 ICTY, Trial Chamber II, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum (footnote [52] 8 above), para. 95 (footnotes omitted).
[55] 11 Partial Award, 19 August 2005, para. 188. The arbitral tribunal referred in particular to paragraphs (1) and (8) of the commentary to article 1 (Yearbook of the International Law Commission, 2001, vol. II (Part Two), para. 77).
[56] 16 ICSID, Case No. ARB/03/15, Award, 31 October 2011, para. 130.
16 Article 1
Swisslion DOO Skopje v. The Former Yugoslav Republic of Macedonia
In its award, the arbitral tribunal in Swisslion DOO Skopje v. The Former Yugoslav
Republic of Macedonia referred to articles 1 and 6 of the State responsibility articles in
support of the assertion that, “under customary international law, every wrongful act of
a State entails the international responsibility of that State. This covers the conduct of any
State organ, including the judiciary”.[57] 17
[A/68/72, para. 19]
International Tribunal for the Law of the Sea
The M/V “Virginia G” Case (Panama/Guinea-Bissau)
In The M/V “Virginia G” Case (Panama/Guinea-Bissau), the International Tribunal
for the Law of the Sea noted that articles 1 and 31, paragraph 1, of the State responsibility
articles reaffirmed that “every internationally wrongful act of a State entails the international
responsibility of that State”.[58] 11 The Tribunal noted that the Seabed Disputes Chamber
of the Tribunal, in its advisory opinion on Responsibilities and Obligations of States
with Respect to Activities in the Area, had indicated the customary international law status
of article 31,[59] 12 and added that article 1 “also reflects customary international law”.[60] 13
[A/71/80, para. 14]
International arbitral tribunal (under the ICSID Convention)
Gold Reserve Inc. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Gold Reserve Inc. v. Bolivarian Republic of Venezuela agreed
with the respondent that the State responsibility articles “primarily concern internationally
wrongful acts against States, not individuals or other non-state actors, and some prominent
commentators have warned against uncritical conflation of the two”.[61] 14
[A/71/80, para. 15]
International Tribunal for the Law of the Sea
Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission
In Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission,
the International Tribunal for the Law of the Sea found that articles 1, 2 and 31, paragraph
1 “are the rules of general international law relevant to the second question”, namely
[57] 17 ICSID, Case No. ARB/09/16, Award, 6 July 2012, para. 261, footnote 323.
[58] 11 ITLOS, Judgment, ITLOS Reports 2014, p. 4, at para. 429.
[59] 12 See footnote [12] 10 above, para. 194.
[60] 13 See footnote [58] 11 above, para. 430.
[61] 14 ICSID, (Additional Facility), Case No. ARB(AF)/09/1, Award, 22 September 2014, para. 679.
Article 1 17
to what extent the flag State shall be held liable for illegal, unreported and unregulated
fishing activities conducted by vessels sailing under its flag.[62] 15
[A/71/80, para. 16]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The
Argentine Republic
In Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The
Argentine Republic, the arbitral tribunal noted, based on the commentary to article 1, that
“the term ‘international responsibility’ … covers the new legal relations which arise under
international law by the internationally wrongful act of a State”.[63] 16 It further observed that
“Argentina, by reason of its international wrong in not respecting its obligations under the
three BITs, is therefore subject to a new relationship toward the Claimants”.[64] 17
[A/71/80, para. 17]
Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State
of Bolivia
In Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational
State of Bolivia, the arbitral tribunal noted that the principle enshrined in article 1, which
is that States incur responsibility for their internationally wrongful acts, was “a basic principle
of international law”.[65] 18
[A/71/80, para. 18]
International Criminal Court
Prosecutor (on the application of Victims) v. Ruto (William Samoei) and Sang (Joshua Arap)
In Prosecutor (on the application of Victims) v. Ruto (William Samoei) and Sang (Joshua
Arap), the International Criminal Court referred to article 1 of the State responsibility articles
in discussing whether it does “amount to an internationally wrongful act for the government
of a State to set out to meddle with an on-going case before an international criminal court,
with the view to occasioning its abortion without proper consideration of the charges”.[66] 9
[A/74/83, p. 6]
[62] 15 ITLOS, Advisory Opinion, 2 April 2015, para. 144.
[63] 16 ICSID, Case No. ARB/03/19, Award, 9 April 2015, para. 25. Hereinafter this reference to
Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The Argentine Republic
includes the reference to the identical award in AWG Group Ltd. v. The Argentine Republic, Award,
9 April 2015.
[64] 17 Ibid.
[65] 18 ICSID, Case No. ARB/06/2, Award, 16 September 2015, para. 327.
[66] 9 International Criminal Court, Trial Chamber V(A), Decision on defence applications for judgments
of acquittal, ICC-01/09–01/11–2027-Red, Case No. ICC-01/09–01/11, 5 April 2016, paras. 207–210.
18 Article 1
International Tribunal for the Law of the Sea
Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire)
In Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire),
a Special Chamber of the International Tribunal for the Law of the Sea observed that the
Seabed Disputes Chamber of the Tribunal, in its advisory opinion on Responsibilities and
Obligations of States with Respect to Activities in the Area, established the customary international
law status of several articles of the State responsibility articles, and added that
article 1 “also reflects customary international law”.[67] 10
[A/74/83, p. 6]
European Court of Human Rights
Abu Zubaydah v. Lithuania
The European Court of Human Rights, in Abu Zubaydah v. Lithuania, recited articles
1, 2, 7, 14, 15 and 16 of the State responsibility articles as relevant international law.[68] 11
[A/74/83, p. 7]
Al Nashiri v. Romania
The European Court of Human Rights, in Al Nashiri v. Romania, referred to articles 1,
2, 7, 14, 15 and 16 of the State responsibility articles as relevant international law.[69] 12
[A/74/83, p. 7]
International Court of Justice
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965
In its advisory opinion on Legal Consequences of the Separation of the Chagos Archipelago
from Mauritius in 1965, the International Court of Justice referred to article 1 in
concluding that,
[t]he Court having found that the decolonization of Mauritius was not conducted in a manner consistent
with the right of peoples to self-determination, it follows that the United Kingdom’s continued
administration of the Chagos Archipelago constitutes a wrongful act entailing the international
responsibility of that State.[70] 10
[A/77/74, p. 6]
[67] 10 ITLOS, Judgment of 23 September 2017, para. 558, citing Seabed Disputes Chamber, Advisory
Opinion (footnote [12] 10 above), para. 169.
[68] 11 ECHR, First Section, Application No. 46454/11, Judgment, 31 May 2018, para. 232.
[69] 12 ECHR, First Section, Application No. 33234/12, Judgment, 31 May 2018, para. 210.
[70] 10 ICJ, Advisory Opinion, I.C.J. Reports 2019, p. 95, at pp. 138–139, para. 177.
Article 1 19
International arbitral tribunal (under the ICSID Convention)
B3 Croatian Courier Coöperatief U.A. v. Republic of Croatia
In B3 Croatian Courier Coöperatief U.A. v. Republic of Croatia, the arbitral tribunal
considered “it to be uncontroversial that an expropriation claim may be based not only on
positive acts of the State, but also on omissions”, referring to the commentary to article 1.[71] 11
[A/77/74, p. 7]
International Tribunal for the Law of the Sea
M/V “Norstar” (Panama v. Italy)
In M/V “Norstar” (Panama v. Italy), the International Tribunal for the Law of the Sea
noted that, as stated in article 1, “[e]very internationally wrongful act of a State entails the
international responsibility of that State”, and observed that article 1 “also reflects customary
international law”.[72] 12
[A/77/74, p. 7]
[International arbitral tribunal (under UNCITRAL Rules)
Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria
The arbitral tribunal in Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal
Republic of Nigeria took the view that “all organs of the State, including those which have
an independent existence in domestic law, are to be treated as part of the State. This is
customary international law, and is clear in the light of the Articles”.[73] 42 The tribunal also
cited articles 1, 5, 9, 34, 36 and 38.[74] 43
[A/77/74, p. 11]]
[Inter-American Court of Human Rights
Cesti Hurtado v. Peru
In an order in Cesti Hurtado v. Peru, the Inter-American Court of Human Rights
cited articles 1 and 31, recalling that “whenever a State is found responsible for an internationally
wrongful act that has caused damage, an obligation arises for that State to make
full reparation for the damage”.[75] 130
[A/77/74, p. 24]]
[71] 11 ICSID, Case No. ARB/15/5, Award, 5 April 2019, para. 1050.
[72] 12 ITLOS, Judgment, ITLOS Reports 2018–2019, p. 10, at p. 94, para. 317, citing M/V “Virginia G”
(Panama/Guinea-Bissau) (footnote [58] 11 above), para. 430.
[73] [42 Final Award, 26 March 2021, para. 72.]
[74] [43 Ibid., paras. 72 and 134–135.]
[75] [130 IACHR, Order (Request for Provisional Measures and Monitoring Compliance with Judgment),
14 October 2019, para. 30.]
20 Article 1
[Galindo Cárdenas et al. v. Peru
In a provisional measures order in the case of Galindo Cárdenas et al. v. Peru, the Inter-
American Court of Human Rights cited articles 1 and 31, noting that “under international
law, whenever a State is found responsible for an internationally wrongful act that has caused
damage, an obligation arises for that State to make full reparation for the damage”.[76] 139
[A/77/74, p. 26]]
[International arbitral tribunal (under the ICSID Convention)
Silver Ridge Power B.V. v. Italian Republic
The arbitral tribunal in Silver Ridge Power B.V. v. Italian Republic considered that under
article 31, paragraph 1,
which represents customary international law, the State responsible for an internationally wrongful
act is under an obligation to make full reparation for the injury caused by the internationally
wrongful act. Hence, there can be no doubt that, under general international law, the existence of a
causal link between the alleged infringement of obligations under international law and the damage
ensuing from it is an indispensable prerequisite for a compensation claim.[77] 143
The tribunal also cited articles 1 and 2.[78] 144
[A/77/74, p. 26]]
[76] [139 IACHR, Order (Request for Provisional Measures and Monitoring Compliance with Judgment),
3 September 2020, para. 17.]
[77] [143 ICSID, Case No. ARB/15/37, Award, 26 February 2021, para. 513.]
[78] [144 Ibid., para. 512.]
21
Article 2. Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consisting of an
action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.
Commentary
(1) Article 1 states the basic principle that every internationally wrongful act of a State
entails its international responsibility. Article 2 specifies the conditions required to establish
the existence of an internationally wrongful act of the State, i.e. the constituent elements
of such an act. Two elements are identified. First, the conduct in question must be
attributable to the State under international law. Secondly, for responsibility to attach to
the act of the State, the conduct must constitute a breach of an international legal obligation
in force for that State at that time.
(2) These two elements were specified, for example, by PCIJ in the Phosphates in Morocco
case. The Court explicitly linked the creation of international responsibility with the
existence of an “act being attributable to the State and described as contrary to the treaty
right[s] of another State”.[79] 58 ICJ has also referred to the two elements on several occasions.
In the United States Diplomatic and Consular Staff in Tehran case, it pointed out that,
in order to establish the responsibility of the Islamic Republic of Iran:
[f]irst, 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.[80] 59
Similarly in the Dickson Car Wheel Company case, the Mexico-United States General
Claims Commission noted that the condition required for a State to incur international
responsibility is “that an unlawful international act be imputed to it, that is, that there exist
a violation of a duty imposed by an international juridical standard”.[81] 60
(3) The element of attribution has sometimes been described as “subjective” and the element
of breach as “objective”, but the articles avoid such terminology.[82] 61 Whether there
has been a breach of a rule may depend on the intention or knowledge of relevant State
organs or agents and in that sense may be “subjective”. For example, article II of the Convention
on the Prevention and Punishment of the Crime of Genocide states that: “In the present
Convention, genocide means any of the following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such … ” In other cases,
the standard for breach of an obligation may be “objective”, in the sense that the advertence
[79] 58 See footnote [28] 34 above.
[80] 59 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3, at
p. 29, para. 56. Cf. page 41, para. 90. See also Military and Paramilitary Activities in and against Nicaragua
(footnote [30] 36 above), pp. 117–118, para. 226; and Gabčíkovo-Nagymaros Project (footnote [31] 37
above), p. 54, para. 78.
[81] 60 See footnote [36] 42 above.
[82] 61 Cf. Yearbook … 1973, vol. II, p. 179, document A/9010/Rev.1, paragraph (1) of the commentary
to article 3.
22 Article 2
or otherwise of relevant State organs or agents may be irrelevant. Whether responsibility is
“objective” or “subjective” in this sense depends on the circumstances, including the content
of the primary obligation in question. The articles lay down no general rule in that regard.
The same is true of other standards, whether they involve some degree of fault, culpability,
negligence or want of due diligence. Such standards vary from one context to another for
reasons which essentially relate to the object and purpose of the treaty provision or other
rule giving rise to the primary obligation. Nor do the articles lay down any presumption in
this regard as between the different possible standards. Establishing these is a matter for the
interpretation and application of the primary rules engaged in the given case.
(4) Conduct attributable to the State can consist of actions or omissions. Cases in which
the international responsibility of a State has been invoked on the basis of an omission are
at least as numerous as those based on positive acts, and no difference in principle exists
between the two. Moreover, it may be difficult to isolate an “omission” from the surrounding
circumstances which are relevant to the determination of responsibility. For example, in the
Corfu Channel case, ICJ held that it was a sufficient basis for Albanian responsibility that
it knew, or must have known, of the presence of the mines in its territorial waters and did
nothing to warn third States of their presence.[83] 62 In the United States Diplomatic and Consular
Staff in Tehran case, the Court concluded that the responsibility of the Islamic Republic
of Iran was entailed by the “inaction” of its authorities which “failed to take appropriate
steps”, in circumstances where such steps were evidently called for.[84] 63 In other cases it may
be the combination of an action and an omission which is the basis for responsibility.[85] 64
(5) For particular conduct to be characterized as an internationally wrongful act, it must
first be attributable to the State. The State is a real organized entity, a legal person with full
authority to act under international law. But to recognize this is not to deny the elementary
fact that the State cannot act of itself. An “act of the State” must involve some action or
omission by a human being or group: “States can act only by and through their agents and
representatives.”[86] 65 The question is which persons should be considered as acting on behalf
of the State, i.e. what constitutes an “act of the State” for the purposes of State responsibility.
(6) In speaking of attribution to the State what is meant is the State as a subject of international
law. Under many legal systems, the State organs consist of different legal persons
(ministries or other legal entities), which are regarded as having distinct rights and obligations
for which they alone can be sued and are responsible. For the purposes of the international
law of State responsibility the position is different. The State is treated as a unity,
consistent with its recognition as a single legal person in international law. In this as in other
respects the attribution of conduct to the State is necessarily a normative operation. What is
[83] 62 Corfu Channel, Merits (footnote [29] 35 above), pp. 22–23.
[84] 63 United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), pp. 31–32,
paras. 63 and 67. See also Velásquez Rodríguez v. Honduras case, Inter-American Court of Human
Rights, Series C, No. 4, para. 170 (1988): “under international law a State is responsible for the acts of its
agents undertaken in their official capacity and for their omissions”; and Affaire relative à l’acquisition
de la nationalité polonaise, UNRIAA, vol. I (Sales No. 1948.V.2), p. 401, at p. 425 (1924).
[85] 64 For example, under article 4 of the Convention relative to the Laying of Automatic Submarine
Contact Mines (Hague Convention VIII of 18 October 1907), a neutral Power which lays mines off its
coasts but omits to give the required notice to other States parties would be responsible accordingly.
[86] 65 German Settlers in Poland, Advisory Opinion, 1923, P.C.I.J., Series B, No. 6, p. 22.
Article 2 23
crucial is that a given event is sufficiently connected to conduct (whether an act or omission)
which is attributable to the State under one or other of the rules set out in chapter II.
(7) The second condition for the existence of an internationally wrongful act of the State
is that the conduct attributable to the State should constitute a breach of an international
obligation of that State. The terminology of breach of an international obligation of the
State is long established and is used to cover both treaty and non-treaty obligations. In its
judgment on jurisdiction in the Factory at Chorzów case, PCIJ used the words “breach of
an engagement”.[87] 66 It employed the same expression in its subsequent judgment on the
merits.[88] 67 ICJ referred explicitly to these words in the Reparation for Injuries case.[89] 68
The arbitral tribunal in the “Rainbow Warrior” affair referred to “any violation by a State of
any obligation”.[90] 69 In practice, terms such as “non-execution of international obligations”,
“acts incompatible with international obligations”, “violation of an international obligation”
or “breach of an engagement” are also used.[91] 70 All these formulations have essentially the
same meaning. The phrase preferred in the articles is “breach of an international obligation”
corresponding as it does to the language of Article 36, paragraph 2 (c), of the ICJ Statute.
(8) In international law the idea of breach of an obligation has often been equated with
conduct contrary to the rights of others. PCIJ spoke of an act “contrary to the treaty right[s]
of another State” in its judgment in the Phosphates in Morocco case.[92] 71 That case concerned
a limited multilateral treaty which dealt with the mutual rights and duties of the
parties, but some have considered the correlation of obligations and rights as a general feature
of international law: there are no international obligations of a subject of international
law which are not matched by an international right of another subject or subjects, or even
of the totality of the other subjects (the international community as a whole). But different
incidents may attach to a right which is held in common by all other subjects of international
law, as compared with a specific right of a given State or States. Different States may
be beneficiaries of an obligation in different ways, or may have different interests in respect
of its performance. Multilateral obligations may thus differ from bilateral ones, in view of
the diversity of legal rules and institutions and the wide variety of interests sought to be
protected by them. But whether any obligation has been breached still raises the two basic
questions identified in article 2, and this is so whatever the character or provenance of the
obligation breached. It is a separate question who may invoke the responsibility arising
from the breach of an obligation: this question is dealt with in Part Three.[93] 72
(9) Thus there is no exception to the principle stated in article 2 that there are two necessary
conditions for an internationally wrongful act—conduct attributable to the State under
international law and the breach by that conduct of an international obligation of the State.
The question is whether those two necessary conditions are also sufficient. It is sometimes
[87] 66 Case concerning the Factory at Chorzów, Jurisdiction (footnote [28] 34 above).
[88] 67 Factory at Chorzów, Merits (ibid.).
[89] 68 Reparation for Injuries (footnote [32] 38 above), p. 184.
[90] 69 “Rainbow Warrior” (footnote [40] 46 above), p. 251, para. 75.
[91] 70 At the Conference for the Codification of International Law, held at The Hague in 1930, the
term “any failure … to carry out the international obligations of the State” was adopted (see Yearbook
… 1956, vol. II, p. 225, document A/CN.4/96, annex 3, article 1).
[92] 71 See footnote [28] 34 above.
[93] 72 See also article 33, paragraph 2, and commentary.
24 Article 2
said that international responsibility is not engaged by conduct of a State in disregard of its obligations unless some further element exists, in particular, “damage” to another State. But whether such elements are required depends on the content of the primary obligation, and there is no general rule in this respect. For example, the obligation under a treaty to enact a uniform law is breached by the failure to enact the law, and it is not necessary for another State party to point to any specific damage it has suffered by reason of that failure. Whether a particular obligation is breached forthwith upon a failure to act on the part of the responsible State, or whether some further event must occur, depends on the content and interpretation of the primary obligation and cannot be determined in the abstract.[94] 73
(10) A related question is whether fault constitutes a necessary element of the internationally wrongful act of a State. This is certainly not the case if by “fault” one understands the existence, for example, of an intention to harm. In the absence of any specific requirement of a mental element in terms of the primary obligation, it is only the act of a State that matters, independently of any intention.
(11) Article 2 introduces and places in the necessary legal context the questions dealt with in subsequent chapters of Part One. Subparagraph (a)—which states that conduct attributable to the State under international law is necessary for there to be an internationally wrongful act—corresponds to chapter II, while chapter IV deals with the specific cases where one State is responsible for the internationally wrongful act of another State. Subparagraph (b)—which states that such conduct must constitute a breach of an international obligation—corresponds to the general principles stated in chapter III, while chapter V deals with cases where the wrongfulness of conduct, which would otherwise be a breach of an obligation, is precluded.
(12) In subparagraph (a), the term “attribution” is used to denote the operation of attaching a given action or omission to a State. In international practice and judicial decisions, the term “imputation” is also used.[95] 74 But the term “attribution” avoids any suggestion that the legal process of connecting conduct to the State is a fiction, or that the conduct in question is “really” that of someone else.
(13) In subparagraph (b), reference is made to the breach of an international obligation rather than a rule or a norm of international law. What matters for these purposes is not simply the existence of a rule but its application in the specific case to the responsible State. The term “obligation” is commonly used in international judicial decisions and practice and in the literature to cover all the possibilities. The reference to an “obligation” is limited to an obligation under international law, a matter further clarified in article 3.
[94] 73 For examples of analysis of different obligations, see United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), pp. 30–33, paras. 62–68; “Rainbow Warrior” (footnote [40] 46 above), pp. 266–267, paras. 107–110; and WTO, Report of the Panel, United States–Sections 301–310 of the Trade Act of 1974 (WT/DS152/R), 22 December 1999, paras. 7.41 et seq.
[95] 74 See, e.g., United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), p. 29, paras. 56 and 58; and Military and Paramilitary Activities in and against Nicaragua (footnote [30] 36 above), p. 51, para. 86.
Article 2 25
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Convention)
Amco Asia Corporation and Others v. Republic of Indonesia
In its 1984 award on the merits, the arbitral tribunal constituted to hear the Amco
Indonesia Corporation and Others v. Indonesia case considered that draft article 3 provisionally
adopted by the International Law Commission[96] 12 (as well as articles 5 and 10
provisionally adopted), which it quoted in extenso, constituted “an expression of accepted
principles of international law”:
It is a generally accepted rule of international law, clearly stated in international awards and judgements
and generally accepted in the literature, that a State has a duty to protect aliens and their
investments against unlawful acts committed by some of its citizens … If such acts are committed
with the active assistance of state-organs a breach of international law occurs. In this respect, the
Tribunal wants to draw attention to the draft articles on State responsibility formulated in 1979 by
the International Law Commission and presented to the General Assembly of the United Nations
as an expression of accepted principles of international law.[97] 13
[A/62/62, para. 10]
Ad hoc committee (under the ICSID Convention)
Compañia de Aguas del Aconquija SA and Vivendi Universal (formerly Compagnie générale
des eaux) v. Argentine Republic
In its 2002 decision on annulment in the CAA and Vivendi Universal v. Argentina case,
the ad hoc committee noted that,
[i]n considering the [arbitral] Tribunal’s findings on the merits [in the award involved in the annulment
proceedings], it is necessary to distinguish between what the Tribunal referred to as, on the
one hand, claims ‘based directly on alleged actions or failures to act of the Argentine Republic’ and,
on the other hand, claims relating to conduct of the [Argentine province of] Tucumán authorities
which are nonetheless brought against Argentina and ‘rely … upon the principle of attribution’.[98] 14
[96] 12 This provision was amended and incorporated in article 2 adopted by the International Law
Commission in 2001. The text of draft article 3 provisionally adopted read as follows:
Article 3
Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when:
(a) Conduct consisting of an action or omission is attributable to the State under international
law; and
(b) That conduct constitutes a breach of an international obligation of the State. (Yearbook
… 1980, vol. II (Part Two), para. 34.)
[97] 13 ICSID, Award on the merits, 20 November 1984, para. 172 reproduced in International Law
Reports, vol. 89, p. 457.
[98] 14 ICSID, Case No. ARB/97/3, Decision of Annulment, 3 July 2002, para. 16 (footnote omitted),
reproduced in ICSID Review—Foreign Investment Law Journal, vol. 19, No. 1, 2004, p. 100.
26 Article 2
In a footnote, the adhoc committee criticized the arbitral tribunal’s terminology on the
basis of the text of and commentaries to articles 2, 4 and 12 finally adopted by the International
Law Commission:
… The terminology employed by the Tribunal in this regard is not entirely happy. All international
claims against a state are based on attribution, whether the conduct in question is that of a central or
provincial government or other subdivision. See International Law Commission articles on responsibility
of States for internationally wrongful acts, annexed to General Assembly resolution 54/83,
12 December 2001 … , articles 2(a), 4 and the Commission’s commentary to article 4, paras. (8)-
(10). A similar remark may be made concerning the Tribunal’s later reference to “a strict liability
of attribution” … Attribution has nothing to do with the standard of liability or responsibility. The
question whether a State’s responsibility is “strict” or is based on due diligence or on some other
standard is a separate issue from the question of attribution (cf. International Law Commission
articles, arts. 2, 12). It does not, however, appear that either of these terminological issues affected
the reasoning of the Tribunal, and no more need be said of them.[99] 15
[A/62/62, para. 11]
International arbitral tribunal
Eureko B.V. v. Republic of Poland
In its 2005 partial award, the arbitral tribunal constituted to hear the Eureko BV v.
Republic of Poland case, in support of its finding that a State may be responsible for omissions
by its organs, quoted the commentary to article 2 finally adopted by the International
Law Commission in 2001.[100] 16
[A/62/62, para. 12]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Fireman’s Fund Insurance Company v. The United Mexican States
In its 2006 award, the arbitral tribunal constituted to hear the Fireman’s Fund Insurance
Company v. The United Mexican States case, in the first case under NAFTA to be heard
under Chapter Fourteen devoted to cross-border investment in Financial Services, considered
the meaning of the term “expropriation” in article 1110(1) of NAFTA. Upon a review of
prior decisions and “customary international law in general”, the tribunal identified a number
of elements, including that expropriation requires a taking (which may include destruction)
by a government-type authority of an investment by an investor covered by NAFTA. In
a footnote citing article 2 of the State responsibility articles, the tribunal added that:
[a] failure to act (an ‘omission’) by a host State may also constitute a State measure tantamount to
expropriation under particular circumstances, although those cases will be rare and seldom concern
the omission alone.[101] 17
[A/65/76, para. 12]
[99] 15 Ibid., p. 100, para. 16, footnote 17.
[100] 16 See footnote [55] 11 above, para. 188. The arbitral tribunal referred in particular to paragraph
(4) of the commentary to article 2 (Yearbook of the International Law Commission, 2001, vol. II
(Part Two), para. 77).
[101] 7 ICSID, Case No. ARB(AF)/ 02/01, Award, 17 July 2006, para. 176(a), footnote 155.
Article 2 27
International arbitral tribunal (under the ICSID Additional Facility Rules)
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the
United Mexican States
In its 2007 award, the tribunal established to hear the case of Archer Daniels Midland
Company and Tate & Lyle Ingredients Americas, Inc. v. Mexico considered article 2 as
reflecting a rule applicable under customary international law.[102] 8
[A/65/76, para. 13]
International arbitral tribunal (under the ICSID Convention)
Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania
In its 2008 award, the tribunal in the Biwater Gauff (Tanzania) Ltd. v. Tanzania case,
considered the question as to whether actual economic loss or damage was necessary for a
cause of action relating to expropriation. The tribunal held that “the suffering of substantive
and quantifiable economic loss by the investor [was] not a pre-condition for the finding
of an expropriation” under the bilateral investment treaty in question, but that where
there had been “substantial interference with an investor’s rights, so as to amount to an
expropriation … there may be scope for a non-compensatory remedy for the expropriation
(e.g. injunctive, declaratory or restitutionary relief)”. In coming to that conclusion, the
tribunal referred to the commentary to article 2 of the State responsibility articles, where
the Commission stated:
It is sometimes said that international responsibility is not engaged by conduct of a State in disregard
of its obligations unless some further element exists, in particular, ‘damage’ to another State. But
whether such elements are required depends on the content of the primary obligation, and there is
no general rule in this respect.[103] 9
[A/65/76, para. 14]
International arbitral tribunal (under UNCITRAL Rules)
Merrill & Ring Forestry L.P. v. The Government of Canada
The arbitral tribunal constituted to hear the Merrill & Ring Forestry L.P. v. The Government
of Canada case indicated that, although the commentary to article 2 provides
that whether damage is “‘required depends on the content of the primary obligation, and
there is no general rule in this respect’[,] … in the case of conduct that is said to constitute
a breach of the standards applicable to investment protection, the primary obligation is
quite clearly inseparable from the existence of damage”.[104] 19
[A/68/72, para.20]
[102] 8 Archer Daniels Midland Company (footnote [3] 4 above), para. 275.
[103] 9 Biwater Gauff (footnote [5] 6 above), para. 466, citing paragraph (9) of the commentary to
article 2.
[104] 19 Award, 31 March 2010, para. 245 (quoting James Crawford, The International Law Commission’s
Articles on State Responsibility, 2002, at 84).
28 Article 2
International arbitral tribunal (under the ICSID Convention)
Gustav F W Hamester GmbH & Co KG v. Republic of Ghana
The arbitral tribunal in Gustav F W Hamester GmbH & Co KG v. Republic of Ghana
indicated that article 2 is “not an autonomous basis for attribution”, but rather “only articulates
the elements of the definition an internationally wrongful act of a State”, which “must
be attributable to the State and violate an international obligation of the State”.[105] 20
[A/68/72, para. 21]
Permanent Court of Arbitration (under UNCITRAL Rules)
Frontier Petroleum Services LTD. v. The Czech Republic
In its final award, the arbitral tribunal in Frontier Petroleum Services LTD. v. The
Czech Republic referred to article 2 and its accompanying commentary in support of the
assertion that “[t]here is little doubt that the term ‘measure’ generally encompasses both
actions and omissions of a state in international law”.[106] 21
[A/68/72, para. 22]
International Tribunal for the Law of the Sea (Seabed Disputes Chamber)
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area
In its advisory opinion on Responsibilities and Obligations of States Sponsoring Persons
and Entities with Respect to Activities in the Area, the Seabed Disputes Chamber indicated
that a provision of UNCLOS constitutes an exception to the customary international law rule
reflected in the commentary to article 2, which provides that “a State may be held liable …
even if no material damage results from its failure to meet its international obligations”.[107] 22
[A/68/72, para. 23]
[Inter-American Court of Human Rights
Castillo González et al. v. Venezuela
In its judgment in Castillo González et al. v. Venezuela, the Inter-American Court of
Human Rights indicated that articles 2 and 4 constituted part of “the basic principle of the
law on international State responsibility”.[108] 51
[See A/68/72, footnote 18 and para. 41]]
[105] 20 ICSID, Case No. ARB/07/24, Award, 18 June 2010, para. 173.
[106] 21 PCA, Final Award, 12 November 2010, para. 223.
[107] 22 See footnote [12] 10 above, para. 178 (citing para. (9) of the commentary to article 2) and para. 210.
[108] [51 IACHR, Judgment, Series C, No. 256, 27 November 2012, para. 110, footnote 51 (quoting
articles 2 and 4 of the State responsibility articles).]
Article 2 29
[International Tribunal for the Law of the Sea
Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission
In Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission,
the International Tribunal for the Law of the Sea found that articles 1, 2 and 31, paragraph
1 “are the rules of general international law relevant to the second question”, namely
to what extent the flag State shall be held liable for illegal, unreported and unregulated
fishing activities conducted by vessels sailing under its flag.[109] 15
[A/71/80, para. 16]]
European Court of Human Rights
Likvidējamā P/S Selga and Lūcija Vasiļevska v. Latvia
In Likvidējamā P/S Selga and Lūcija Vasiļevska v. Latvia, the European Court of
Human Rights considered article 2 of the State responsibility articles and excerpts of the
commentary thereto as relevant international law.[110] 20 In assessing the responsibility of
Latvia, the Court relied on article 2 to note that the two conditions of attribution of conduct
and breach “form a cornerstone of State responsibility under international law”.[111] 21
[A/71/80, para. 19]
Inter-American Court of Human Rights
Gutiérrez and Family v. Argentina
In Gutiérrez and Family v. Argentina, the Inter-American Court of Human Rights
referred to article 2 when recalling that
in order to establish that a violation of the rights embodied in the Convention has occurred, it is not
necessary to determine, as under domestic criminal law, the guilt of the authors or their intentions,
nor is it necessary to identify, individually, the agents to which the violations are attributed. It is
sufficient that the State has an obligation that it has failed to comply with; in other words, that this
unlawful act is attributed to it.[112] 22
[A/71/80, para. 20]
[109] [15 ITLOS, Advisory Opinion, 2 April 2015, para. 144.]
[110] 20 ECHR, Fourth Section, Application Nos. 17126/02 and 24991/02, Decision, 1 October 2013,
paras. 64–65.
[111] 21 Ibid., para. 95.
[112] 22 IACHR, Judgment, 25 November 2013, para. 78, footnote 163 (footnotes omitted).
30 Article 2
International arbitral tribunal (under the ICSID Convention)
Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The
Argentine Republic
The arbitral tribunal in Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi
Universal S.A. v. The Argentine Republic referred to article 2 as being “generally considered
as a statement of customary international law”.[113] 23
[A/71/80, para. 21]
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal noted
that a “[b]reach of the BIT would be an internationally wrongful act within Article 2 of the ILC
Articles as a ‘breach of an international obligation’, which can include treaty obligations”.[114] 24
[A/71/80, para. 22]
Ad hoc committee (under the ICSID Convention)
Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey
In Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey, the
[ad hoc Committee], constituted to decide an application to annul the award, observed
that article 2 of the State responsibility articles “codifies customary international law”.[115] 25
[A/71/80, para. 23]
[European Court of Human Rights
Jaloud v. The Netherlands
The European Court of Human Rights in Jaloud v. The Netherlands cited articles 2, 6
and 8 of the State responsibility articles, as well as the respective commentaries, as relevant
international law.[116] 80 In establishing jurisdiction in respect of the Netherlands, the Court
could not find that
the Netherlands’ troops were placed ‘at the disposal’ of any foreign power, whether it be Iraq or the
United Kingdom or any other power, or that they were ‘under the exclusive direction or control’
of any other State (compare, mutatis mutandis, Article 6 of the International Law Commission’s
Articles on State Responsibility).[117] 81
[A/71/80, para. 65]]
[113] 23 See footnote [63] 16 above, para. 24.
[114] 24 ICSID, Case No. ARB/10/15, Award, 28 July 2015, para. 722. See also the reference to article 2
in the text accompanying footnote [1518] 189 below.
[115] 25 ICSID, Case No. ARB/11/28, Decision on Annulment, 30 December 2015, para. 183.
[116] [80 ECHR, Grand Chamber, Application No. 47708/08, Judgment, 20 November 2014, para. 98.]
[117] [81 Ibid., para. 151.]
Article 2 31
International arbitral tribunal (under the ICSID Convention)
Vestey Group Limited Ltd. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Vestey Group Limited Ltd. v. Bolivarian Republic of Venezuela,
also relying on articles 1 and 31 of the State responsibility articles, found that “Venezuela
has committed an internationally wrongful act as defined by Article 2 of the ILC Articles
on State Responsibility, which entails the international responsibility of the state, and gives
rise to an obligation to make full reparation for the injury caused by the illicit act”.[118] 14
[A/74/83, p. 7]
Permanent Court of Arbitration (under UNCITRAL Rules)
CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom
Devas Mauritius Limited v. The Republic of India
In CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom
Devas Mauritius Limited v. The Republic of India, the arbitral tribunal stated that
[i]t is important to note that Article 2 of the ILC Articles states that two conditions must be met for the
attribution to a State of an internationally wrongful act: (i) the act must be attributable to the State under
international law; and (ii) it must constitute a breach of an international obligation of the State.[119] 15
[A/74/83, p. 7]
Arbitration Institute of the Stockholm Chamber of Commerce
Busta and Busta v. The Czech Republic
In Busta and Busta v. The Czech Republic, the arbitral tribunal referred to article 2 of
the State responsibility articles, when noting that “a State’s international responsibility can
be engaged by both action and inaction of its organs”.[120] 16
[A/74/83, p. 7]
Economic Community of West African States Court of Justice
Benson Olua Okomba v. Republic of Benin
In Benson Olua Okomba v. Republic of Benin, the Economic Community of West African
States Court of Justice observed, in considering articles 1 and 2 of State responsibility
articles, that “[t]he rules of state responsibility appl[y] to international human rights law”.[121] 17
[A/74/83, p. 7]
[118] 14 ICSID, Case No. ARB/06/4, Award, 15 April 2016, para. 326 and footnote 306.
[119] 15 PCA, Case No. 2013–09, Award on Jurisdiction and the Merits, 25 July 2016, para. 283.
[120] 16 SCC, Case No. V (2015/014), Final Award, 10 March 2017, para. 399.
[121] 17 ECOWAS, Court of Justice, Case No. ECW/CCJ/JUD/05/17, Judgment, 10 October 2017, p. 20.
32 Article 2
International arbitral tribunal (under the ICSID Convention)
UAB E Energija (Lithuania) v. Republic of Latvia
In UAB E Energija (Lithuania) v. Republic of Latvia, the arbitral tribunal stated, with
reference to article 2 of the State responsibility articles, that “[t]he issue for the purposes
of the present Award is the threshold question whether the conduct of which the Claimant
complains is attributable to the Respondent under international law”.[122] 18 The arbitral
tribunal found that
[t]he Respondent’s breaches of Article 3(1) of the BIT amount to an internationally wrongful act as
this provision gives rise to an international obligation on the Respondent and the Tribunal has found
the breaches of this provision to be attributable to the Respondent (Article 2 of the ILC Articles).[123] 19
[A/74/83, p. 7]
Economic Community of West African States Court of Justice
Chief Damian Onwuham and Others v. Federal Republic of Nigeria and Imo State Government
In Chief Damian Onwuham and Others v. Federal Republic of Nigeria and Imo State
Government, the Economic Community of West African States Court of Justice, quoting
articles 1 and 2 of the State responsibility articles, observed that
[i]t is trite that the rules of state responsibility appl[y] to international human rights law. […] This
implies that states will be responsible for acts done without due care and diligence in preventing
human right[s] violations and for failure to investigate and punish acts violating those rights.[124] 20
[A/74/83, p. 8]
Permanent Court of Arbitration (under UNCITRAL Rules)
Consutel Group S.P.A. in liquidazione (Italy) v. People’s Democratic Republic of Algeria
In Consutel Group S.P.A. in liquidazione (Italy) v. People’s Democratic Republic of Algeria,
the arbitral tribunal stated that “the attribution to the State of acts or omissions committed by
a public entity has no consequences, under international law, with regard to the lawfulness of
those acts”, noting that article 2 “stipulates, in that regard, that two separate conditions must
be met in order for there to be an ‘internationally wrongful act of a State’: there must be (i) an
act attributable to the State and (ii) a breach of an international obligation of the State”.[125] 13
[A/77/74, p. 7]
[122] 18 ICSID, Case No. ARB/12/33, Award, 22 December 2017, para. 795.
[123] 19 Ibid., para. 1127.
[124] 20 ECOWAS, Court of Justice, Case No. ECW/CCJ/JUD/22/18, Judgment, 3 July 2018, pp. 24–25.
[125] 13 PCA, Case No. 2017–33, Final Award, 3 February 2020, para. 317.
Article 2 33
Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
recalled that “attribution is a concept of international law firmly rooted in the rules on
State responsibility”.[126] 14 Thus,
[w]here there is a claim of a breach of an international obligation of a State under a BIT, the claimant
has to prove (i) that the conduct complained of is, under international law, attributable to a State,
i.e., under international law it is considered to be the conduct of a State; and (ii) that the obligation
allegedly breached is an obligation which that State has undertaken under the applicable BIT.[127] 15
[A/77/74, p. 7]
International arbitral tribunal (under the ICSID Convention)
Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan
The arbitral tribunal in Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan
noted that, in many respects, the articles “codify customary international law”.[128] 16
The tribunal referred to article 2, which “provides that an internationally wrongful act of a
State occurs when two cumulative conditions are met: (i) the act can be attributed to the State
under international law; and (ii) the act constitutes a breach of an international obligation”.[129] 17
Thus, the tribunal stated that “one must first determine whether an act is attributable to the
State before assessing whether the act can be deemed to be in breach of an international
obligation”,[130] 18 and recalled that “under international law, the State is treated as a unity”.[131] 19
[A/77/74, p. 7]
[Silver Ridge Power B.V. v. Italian Republic
The arbitral tribunal in Silver Ridge Power B.V. v. Italian Republic considered that under
article 31, paragraph 1,
which represents customary international law, the State responsible for an internationally wrongful
act is under an obligation to make full reparation for the injury caused by the internationally
wrongful act. Hence, there can be no doubt that, under general international law, the existence of a
causal link between the alleged infringement of obligations under international law and the damage
ensuing from it is an indispensable prerequisite for a compensation claim.[132] 143
The tribunal also cited articles 1 and 2.[133] 144
[A/77/74, p. 26]]
[126] 14 PCA, Case No. 2013–34, Partial Award (Jurisdiction and Liability), 5 February 2021, para. 154.
[127] 15 Ibid., para. 155.
[128] 16 ICSID, Case No. ARB/12/6, Award, 4 May 2021, para. 736 (footnote 628), citing Tulip Real
Estate Investment and Development Netherlands B.V. v. Republic of Turkey (footnote [210] 40 below).
[129] 17 Ibid., para. 736.
[130] 18 Ibid., para. 737, citing para. (5) of the commentary to article 2.
[131] 19 Ibid., para. 742, citing para. (6) of the commentary to article 2.
[132] [143 ICSID, Case No. ARB/15/37, Award, 26 February 2021, para. 513.]
[133] [144 Ibid., para. 512.]
34
Article 3. Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.
Commentary
(1) Article 3 makes explicit a principle already implicit in article 2, namely that the characterization of a given act as internationally wrongful is independent of its characterization as lawful under the internal law of the State concerned. There are two elements to this. First, an act of a State cannot be characterized as internationally wrongful unless it constitutes a breach of an international obligation, even if it violates a provision of the State’s own law. Secondly and most importantly, a State cannot, by pleading that its conduct conforms to the provisions of its internal law, escape the characterization of that conduct as wrongful by international law. An act of a State must be characterized as internationally wrongful if it constitutes a breach of an international obligation, even if the act does not contravene the State’s internal law—even if, under that law, the State was actually bound to act in that way.
(2) As to the first of these elements, perhaps the clearest judicial decision is that of PCIJ in the Treatment of Polish Nationals case.[134] 75 The Court denied the Polish Government the right to submit to organs of the League of Nations questions concerning the application to Polish nationals of certain provisions of the Constitution of the Free City of Danzig, on the ground that:
according to generally accepted principles, a State cannot rely, as against another State, on the provisions of the latter’s Constitution, but only on international law and international obligations duly accepted … [C]onversely, a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force … The application of the Danzig Constitution may … result in the violation of an international obligation incumbent on Danzig towards Poland, whether under treaty stipulations or under general international law … However, in cases of such a nature, it is not the Constitution and other laws, as such, but the international obligation that gives rise to the responsibility of the Free City.[135] 76
(3) That conformity with the provisions of internal law in no way precludes conduct being characterized as internationally wrongful is equally well settled. International judicial decisions leave no doubt on that subject. In particular, PCIJ expressly recognized the principle in its first judgment, in the S.S. “Wimbledon” case. The Court rejected the argument of the German Government that the passage of the ship through the Kiel Canal would have constituted a violation of the German neutrality orders, observing that:
a neutrality order, issued by an individual State, could not prevail over the provisions of the Treaty of Peace. … under Article 380 of the Treaty of Versailles, it was [Germany’s] definite duty to allow [the passage of the Wimbledon through the Kiel Canal]. She could not advance her neutrality orders against the obligations which she had accepted under this Article.[136] 77
[134] 75 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 4.
[135] 76 Ibid., pp. 24–25. See also “Lotus”, Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 24.
[136] 77 S.S. “Wimbledon” (footnote [28] 34 above), pp. 29–30.
Artic le 3 35
The principle was reaffirmed many times:
it is a generally accepted principle of international law that in the relations between Powers who are contracting
Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty;[137] 78
… it is certain that France cannot rely on her own legislation to limit the scope of her international
obligations;[138] 79
… a State cannot adduce as against another State its own Constitution with a view to evading obligations
incumbent upon it under international law or treaties in force.[139] 80
A different facet of the same principle was also affirmed in the advisory opinions on
Exchange of Greek and Turkish Populations[140] 81 and Jurisdiction of the Courts of Danzig.[141] 82
(4) ICJ has often referred to and applied the principle.[142] 83 For example, in the Reparation
for Injuries case, it noted that “[a]s the claim is based on the breach of an international
obligation on the part of the Member held responsible … the Member cannot contend
that this obligation is governed by municipal law”.[143] 84 In the ELSI case, a Chamber of the
Court emphasized this rule, stating that:
Compliance with municipal law and compliance with the provisions of a treaty are different questions.
What is a breach of treaty may be lawful in the municipal law and what is unlawful in the
municipal law may be wholly innocent of violation of a treaty provision. Even had the Prefect held
the requisition to be entirely justified in Italian law, this would not exclude the possibility that it was
a violation of the FCN Treaty.[144] 85
Conversely, as the Chamber explained:
the fact that an act of a public authority may have been unlawful in municipal law does not necessarily
mean that that act was unlawful in international law, as a breach of treaty or otherwise. A finding
of the local courts that an act was unlawful may well be relevant to an argument that it was also
arbitrary; but by itself, and without more, unlawfulness cannot be said to amount to arbitrariness
… Nor does it follow from 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 international law, though the
qualification given to the impugned act by a municipal authority may be a valuable indication.[145] 86
[137] 78 Greco-Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J., Series B, No. 17, p. 32.
[138] 79 Free Zones of Upper Savoy and the District of Gex, Order of 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.
[139] 80 Treatment of Polish Nationals (footnote [134] 75 above), p. 24.
[140] 81 Exchange of Greek and Turkish Populations, Advisory Opinion, 1925, P.C.I.J., Series B, No. 10, p. 20.
[141] 82 Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928, P.C.I.J., Series B, No. 15,
pp. 26–27. See also the observations of Lord Finlay in Acquisition of Polish Nationality, Advisory Opinion,
1923, P.C.I.J., Series B, No. 7, p. 26.
[142] 83 See Fisheries, Judgment, I.C.J. Reports 1951, p. 116, at p. 132; Nottebohm, Preliminary Objection,
Judgment, I.C.J. Reports 1953, p. 111, at p. 123; Application of the Convention of 1902 Governing the
Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 55, at p. 67; and Applicability of the Obligation
to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory
Opinion, I.C.J. Reports 1988, p. 12, at pp. 34–35, para. 57.
[143] 84 Reparation for Injuries (footnote [32] 38 above), at p. 180.
[144] 85 Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 15, at p. 51, para. 73.
[145] 86 Ibid., p. 74, para. 124.
36 Article 3
The principle has also been applied by numerous arbitral tribunals.[146] 87
(5) The principle was expressly endorsed in the work undertaken under the auspices of the League of Nations on the codification of State responsibility,[147] 88 as well as in the work undertaken under the auspices of the United Nations on the codification of the rights and duties of States and the law of treaties. The Commission’s draft Declaration on Rights and Duties of States, article 13, provided that:
Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.[148] 89
(6) Similarly this principle was endorsed in the 1969 Vienna Convention, article 27 of which provides that:
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.[149] 90
(7) The rule that the characterization of conduct as unlawful in international law cannot be affected by the characterization of the same act as lawful in internal law makes no exception for cases where rules of international law require a State to conform to the
[146] 87 See, e.g., the Geneva Arbitration (the “Alabama” case), in Moore, History and Digest, vol. IV, p. 4144, at pp. 4156 and 4157 (1872); Norwegian Shipowners’ Claims (Norway v. United States of America), UNRIAA, vol. I (Sales No. 1948.V.2), p. 307, at p. 331 (1922); Aguilar-Amory and Royal Bank of Canada Claims (Tinoco case) (Great Britain v. Costa Rica), ibid., p. 369, at p. 386 (1923); Shufeldt Claim, ibid., vol. II (Sales No. 1949.V.1), p. 1079, at p. 1098 (“it is a settled principle of international law that a sovereign can not be permitted to set up one of his own municipal laws as a bar to a claim by a sovereign for a wrong done to the latter’s 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).
[147] 88 In point I of the request for information on State responsibility sent to States by the Preparatory Committee for the 1930 Hague Conference it was stated:
“In particular, a State cannot escape its responsibility under international law, if such responsibility exists, by appealing to the provisions of its municipal law.”
In their replies, States agreed expressly or implicitly with this principle (see League of Nations, Conference for the Codification of International Law, Bases of Discussion for the Conference drawn up by the Preparatory Committee, vol. III: Responsibility of States for Damage caused in their Territory to the Person or Property of Foreigners (document C.75.M.69.1929.V), p. 16). During the debate at the 1930 Hague Conference, States expressed general approval of the idea embodied in point I and the Third Committee of the Conference adopted article 5 to the effect that “A State cannot avoid international responsibility by invoking the state of 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).
[148] 89 See General Assembly resolution 375 (IV) of 6 December 1949, annex. For the debate in the Commission, see Yearbook … 1949, pp. 105–106, 150 and 171. For the debate in the Assembly, see Official Records of the General Assembly, Fourth Session, Sixth Committee, 168th–173rd meetings, 18–25 October 1949; 175th–183rd meetings, 27 October–3 November 1949; and ibid., Fourth Session, Plenary Meetings, 270th meeting, 6 December 1949.
[149] 90 Article 46 of the Convention provides for the invocation of provisions of internal law regarding competence to conclude treaties in limited circumstances, viz., where the violation of such provisions “was manifest and concerned a rule of … internal law of fundamental importance”.
Article 3 37
provisions of its internal law, for instance by applying to aliens the same legal treatment as to nationals. It is true that in such a case, compliance with internal law is relevant to the question of international responsibility. But this is because the rule of international law makes it relevant, e.g. by incorporating the standard of compliance with internal law as the applicable international standard or as an aspect of it. Especially in the fields of injury to aliens and their property and of human rights, the content and application of internal law will often be relevant to the question of international responsibility. In every case it will be seen on analysis that either the provisions of internal law are relevant as facts in applying the applicable international standard, or else that they are actually incorporated in some form, conditionally or unconditionally, into that standard.
(8) As regards the wording of the rule, the formulation “The municipal law of a State cannot be invoked to prevent an act of that State from being characterized as wrongful in international law”, which is similar to article 5 of the draft adopted on first reading at the 1930 Hague Conference and also to article 27 of the 1969 Vienna Convention, has the merit of making it clear that States cannot use their internal law as a means of escaping international responsibility. On the other hand, such a formulation sounds like a rule of procedure and is inappropriate for a statement of principle. Issues of the invocation of responsibility belong to Part Three, whereas this principle addresses the underlying question of the origin of responsibility. In addition, there are many cases where issues of internal law are relevant to the existence or otherwise of responsibility. As already noted, in such cases it is international law which determines the scope and limits of any reference to internal law. This element is best reflected by saying, first, that the characterization of State conduct as internationally wrongful is governed by international law, and secondly by affirming that conduct which is characterized as wrongful under international law cannot be excused by reference to the legality of that conduct under internal law.
(9) As to terminology, in the English version the term “internal law” is preferred to “municipal law”, because the latter is sometimes used in a narrower sense, and because the 1969 Vienna Convention speaks of “internal law”. Still less would it be appropriate to use the term “national law”, which in some legal systems refers only to the laws emanating from the central legislature, as distinct from provincial, cantonal or local authorities. The principle in article 3 applies to all laws and regulations adopted within the framework of the State, by whatever authority and at whatever level.[150] 91 In the French version the expression droit interne is preferred to législation interne and loi interne, because it covers all provisions of the internal legal order, whether written or unwritten and whether they take the form of constitutional or legislative rules, administrative decrees or judicial decisions.
[150] 91 Cf. LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 9, at p. 16, para. 28.
38 Article 3
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Convention)
Maffezini v. Kingdom of Spain
In its 2000 decision on objections to jurisdiction, the arbitral tribunal constituted to hear the Maffezini v. Spain case, in deciding whether the acts of the private corporation Sociedad para el Desarrollo Industrial de Galicia (with which the claimant had made various contractual dealings) were imputable to Spain, referred in a footnote to draft article 4 adopted by the International Law Commission on first reading in support of its assertion that “[w]hether an entity is to be regarded as an organ of the State and whether this might ultimately engage its responsibility, is a question of fact and law to be determined under the applicable principles of international law”.[151] 17
[A/62/62, para. 13]
Ad hoc committee (under the ICSID Convention)
Compañia de Aguas del Aconquija SA and Vivendi Universal (formerly Compagnie générale des eaux) v. Argentine Republic
In its 2002 decision on annulment in the CAA and Vivendi Universal v. Argentina case, the ad hoc committee, in considering the relation between the breach of a contract and the breach of a treaty in the said instance, referred to article 3 finally adopted by the International Law Commission in 2001, which it considered to be “undoubtedly declaratory of general international law”. The ad hoc committee further quoted passages of the commentary of the Commission to that provision:
95. As to the relation between breach of contract and breach of treaty in the present case, it must be stressed that Articles 3 and 5 of the bilateral investment treaty [Agreement between the Government of the Argentine Republic and the Government of the Republic of France for Reciprocal Protection and Promotion of Investments of 3 July 1991] do not relate directly to breach of a municipal contract. Rather they set an independent standard. A state may breach a treaty without breaching a contract, and vice versa, and this is certainly true of these provisions of the bilateral investment treaty. The point is made clear in article 3 of the International Law Commission articles, which is entitled ‘Characterization of an act of a State as internationally wrongful’: …
96. In accordance with this general principle (which is undoubtedly declaratory of general international law), whether there has been a breach of the bilateral investment treaty and whether there has been a breach of contract are different questions. Each of these claims will be determined by reference to its own proper or applicable law—in the case of the bilateral investment treaty, by international law; in the case of the Concession Contract, by the proper law of the contract, in other words, the law of Tucumán. For example, in the case of a claim based on a treaty, international law rules of attribution apply, with the result that the state of Argentina is internationally responsible for the acts of its provincial authorities. By contrast, the state of Argentina is not liable for the performance of contracts entered into by Tucumán, which possesses separate legal personality under its own law and is responsible for the performance of its own contracts.
[151] 17 ICSID, Case No. ARB/97/7, Decision on Objections to Jurisdiction, 25 January 2000, para. 82, footnote 64, reproduced in ICSID Review—Foreign Investment Law Journal, vol. 16, No. 1, 2001, p. 31.
Article 3 39
97. The distinction between the role of international and municipal law in matters of international responsibility is stressed in the commentary to article 3 of the International Law Commission articles, which reads in relevant part as follows:
(4) The International Court has often referred to and applied the principle. For example in the Reparation for Injuries case, it noted that “[a]s the claim is based on the breach of an international obligation on the part of the Member held responsible … the Member cannot contend that this obligation is governed by municipal law.” In the ELSI case, a Chamber of the Court emphasized this rule, stating that:
Compliance with municipal law and compliance with the provisions of a treaty are different questions. What is a breach of treaty may be lawful in the municipal law and what is unlawful in the municipal law may be wholly innocent of violation of a treaty provision. Even had the Prefect held the requisition to be entirely justified in Italian law, this would not exclude the possibility that it was a violation of the FCN Treaty.
Conversely, as the Chamber explained:
… the fact that an act of a public authority may have been unlawful in municipal law does not necessarily mean that that act was unlawful in international law, as a breach of treaty or otherwise. A finding of the local courts that an act was unlawful may well be relevant to an argument that it was also arbitrary; but by itself, and without more, unlawfulness cannot be said to amount to arbitrariness … Nor does it follow from 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 international law, though the qualification given to the impugned act by a municipal authority may be a valuable indication.
…
(7) The rule that the characterization of conduct as unlawful in international law cannot be affected by the characterization of the same act as lawful in internal law makes no exception for cases where rules of international law require a State to conform to the provisions of its internal law, for instance by applying to aliens the same legal treatment as to nationals. It is true that in such a case, compliance with internal law is relevant to the question of international responsibility. But this is because the rule of international law makes it relevant, e.g. by incorporating the standard of compliance with internal law as the applicable international standard or as an aspect of it. Especially in the fields of injury to aliens and their property and of human rights, the content and application of internal law will often be relevant to the question of international responsibility. In every case it will be seen on analysis that either the provisions of internal law are relevant as facts in applying the applicable international standard, or else that they are actually incorporated in some form, conditionally or unconditionally, into that standard.[152] 18
[A/62/62, para. 14]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Técnicas Medioambientales Tecmed S.A. v. United Mexican States
In its 2003 award, the arbitral tribunal constituted to hear the Técnicas Medioambientales Tecmed S.A. v. Mexico case, having stated that the fact “[t]hat the actions of the Respondent are legitimate or lawful or in compliance with the law from the standpoint of the Respondent’s domestic laws does not mean that they conform to the Agreement
[152] 18 ICSID, Ad Hoc Committee, Case No. ARB/97/3, Decision of Annulment, 3 July 2002 (footnotes omitted), reproduced in ICSID Review—Foreign Investment Law Journal, vol. 19, No. 1, 2004, pp. 127–129.
40 Article 3
[at issue in the case] or to international law”, quoted the following passage taken from the
commentary to article 3 finally adopted by the International Law Commission:
An act of a State must be characterized as internationally wrongful if it constitutes a breach of an
international obligation, even if the act does not contravene the State’s internal law—even if, under
that law, the State was actually bound to act in that way.[153] 19
[A/62/62, para. 15]
International arbitral tribunal (under the ICSID Convention)
SGS Société générale de Surveillance S.A. v. Islamic Republic of Pakistan
In its 2003 decision on objections to jurisdiction, the arbitral tribunal constituted to
hear the SGS v. Pakistan case, in the context of its interpretation of article 11 of the bilateral
investment agreement between Switzerland and Pakistan,[154] 20 quoted in extenso the passage
of the decision on annulment in the Vivendi case, reproduced [on pages 38–39] above,
to illustrate the statement according to which “[a]s a matter of general principle, the same
set of facts can give rise to different claims grounded on differing legal orders: the municipal
and the international legal orders”.[155] 21 The tribunal thus considered that claims under the
bilateral investment treaty at issue and contract claims were reasonably distinct in principle.
[A/62/62, para. 16]
SGS Société générale de Surveillance S.A. v. Republic of the Philippines
In its 2004 decision on objections to jurisdiction, the arbitral tribunal constituted to
hear the SGS v. Philippines case, in the context of its interpretation of article X(2) of the
bilateral investment treaty between Switzerland and the Philippines,[156] 22 recognized the
“well established” principle that “a violation of a contract entered into by a State with an
investor of another State is not, by itself, a violation of international law”, as it was affirmed
in the Vivendi case and relied upon by the tribunal in the SGS v. Pakistan case (see passages
quoted [on pages 38–39] above). It noted however, that, contrary to the ad hoc committee
in the Vivendi case, the tribunal in the SGS v. Pakistan case, as the tribunal in this case,
needed to “consider whether a clause in a treaty requiring a State to observe specific domestic
commitments has effect in international law”. In this respect, it considered that “it
might do so, as the International Law Commission observed in its commentary to article 3
[153] 19 ICSID, Case No. ARB(AF)/00/2, Award, 29 May 2003, para. 120 (unofficial English translation
of the Spanish original). The quoted passage is taken from paragraph (1) of the International Law
Commission’s commentary to article 3 (Yearbook of the International Law Commission, 2001, vol. II
(Part Two), para. 77).
[154] 20 That provision stipulated that “Either Contracting Party shall constantly guarantee the
observance of the commitments it has entered into with respect to the investments of the investors of
the other Contracting Party”.
[155] 21 ICSID, Case No. ARB/01/13, Decision on Objections to Jurisdiction, 6 August 2003, para. 147,
reproduced in ICSID Review—Foreign Investment Law Journal, vol. 18, No. 1, 2003, pp. 352–355.
[156] 22 That provision, similar to article 11 of the Switzerland-Pakistan bilateral investment treaty
referred to above, stipulated that “Each Contracting Party shall observe any obligation it has assumed
with regard to specific investments in its territory by investors of the other Contracting Party”.
Article 3 41
of the International Law Commission articles on responsibility of States for internationally
wrongful acts”, adding that “the question is essentially one of interpretation, and does not
seem to be determined by any presumption”.[157] 23
[A/62/62, para. 17]
Noble Ventures, Inc. v. Romania
In its 2005 award, the arbitral tribunal constituted to hear the Noble Ventures, Inc. v.
Romania case, in the context of its interpretation of article II(2)(c) of the bilateral investment
treaty at issue, noted that the distinction between municipal law and international
law as two separate legal systems was reflected, inter alia, in article 3 finally adopted by the
International Law Commission in 2001:
… The Tribunal recalls the well established rule of general international law that in normal circumstances
per se a breach of a contract by the State does not give rise to direct international responsibility
on the part of the State. This derives from the clear distinction between municipal law on the
one hand and international law on the other, two separate legal systems (or orders) the second of
which treats the rules contained in the first as facts, as is reflected in inter alia Article Three of the
International Law Commission’s Articles on State Responsibility adopted in 2001.[158] 24
[A/62/62, para. 18]
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited v. The Russian Federation, Yukos Universal Limited v. The Russian
Federation and Veteran Petroleum Limited v. The Russian Federation
In its interim award on jurisdiction and admissibility in Hulley Enterprises Limited v.
The Russian Federation,[159] 24 Yukos Universal Limited v. The Russian Federation[160] 25 and
Veteran Petroleum Limited v. The Russian Federation,[161] 26 the arbitral tribunal, as part of
its consideration of the relationship between international and domestic law in the treaty
context, accepted an expert opinion, submitted by James Crawford, which cited articles 3
and 32 in support of the proposition that there existed “a strong presumption of the separation
of international from national law”.[162] 27
[A/68/72, para. 24]
[157] 23 ICSID, Case No. ARB/02/6, Decision on Objections to Jurisdiction, 29 January 2004,
para. 122 and footnote 54. The tribunal was referring more particularly to paragraph (7) of the commentary
to article 3, mentioning the possibility that “the provisions of internal law are actually incorporated
in some form, conditionally or unconditionally, into [the international] standard”.
[158] 24 ICSID, Case No. ARB/01/11, Award, 12 October 2005, para. 53.
[159] 24 PCA, Case No. AA 226, Interim Award on Jurisdiction and Admissibility, 30 November 2009.
[160] 25 Ibid., Yukos Universal Limited v. The Russian Federation, Case No. AA 227, Interim Award
on Jurisdiction and Admissibility, 30 November 2009.
[161] 26 Ibid., Veteran Petroleum Limited v. The Russian Federation, Case No. AA 228, Interim Award
on Jurisdiction and Admissibility, 30 November 2009.
[162] 27 See footnotes [159] 24, [160] 25 and [161] 26 above, para. 316.
42 Article 3
Ad hoc committee (under the ICSID Convention)
Helnan International Hotels A/S v. Arab Republic of Egypt
The ad hoc committee constituted to consider the Application for Annulment of the
Award rendered in the Helnan International Hotels A/S v. Arab Republic of Egypt case relied
upon article 3 in finding that “a decision by a municipal court … could not preclude the
international tribunal from coming to another conclusion applying international law”.[163] 28
[A/68/72, para. 25]
Total S.A. v. Argentine Republic
The arbitral tribunal in Total S.A. v. Argentine Republic referred to article 3 as a
restatement of the “general principle of customary international law according to which,
for the purpose of State responsibility for the commission of an internationally wrongful
act, the characterization of an act as lawful under the State’s law is irrelevant”.[164] 29
[A/68/72, para. 26]
International arbitral tribunal
Claimant v. The Slovak Republic
The arbitral tribunal constituted to hear the Claimant v. The Slovak Republic case
referred to article 3 in support of the assertion that, even where municipal law may be
relevant to the merits, it was “not the ‘governing’ law, but it constitute[d] a factual circumstance
to be considered for ascertaining whether the host State committed a breach of its
international duties in the enforcement of its own law”.[165] 30
[A/68/72, para. 27]
International arbitral tribunal (under the ICSID Convention)
[El Paso Energy International Company v. The Argentine Republic
The arbitral tribunal in El Paso Energy International Company v. The Argentine
Republic referred to articles 1 and 3 of the State responsibility articles in determining that
“the primary governing law in this case is the BIT, supplemented by international law to
which the BIT itself makes reference in various provisions”.[166] 16
[See A/68/72, footnote 23 and para. 18]]
[163] 28 ICSID, Case No. ARB/05/19, Decision of the Ad Hoc Committee, 14 June 2010, para. 51,
footnote 48.
[164] 29 ICSID, Case No. ARB/04/1, Decision on Liability, 27 December 2010, para. 40, footnote 21.
[165] 30 Ad hoc Arbitration, Award, 5 March 2011, para. 197, footnote 217 (citing ICSID, Compañia de
Aguas del Aconquija S.A. and Vivendi Universal v. The Argentine Republic, Case No. ARB/97/3, Decision on
Annulment, 3 July 2002, para. 94 and footnotes (commenting on article 3)).
[166] [16 See footnote [56] 16, para. 130.]
Article 3 43
EDF International S.A., et al. v. Argentine Republic
In its award, the arbitral tribunal in EDF International S.A., et al. v. Argentine Republic
referred to article 3 in support of the assertion that “the legality of the Respondent’s acts under
national law does not determine their lawfulness under international legal principles”.[167] 31
[A/68/72, para. 28]
Iberdrola Energía S.A. v. The Republic of Guatemala
The arbitral tribunal in Iberdrola Energía S.A. v. The Republic of Guatemala referred
to article 3 in agreeing that “the legality of the conduct of a State under its domestic law
does not necessarily lead to the legality of such conduct under international law”.[168] 32
[A/68/72, para. 29]
Permanent Court of Arbitration (under UNCITRAL Rules)
Luigiterzo Bosca v. Lithuania
The arbitral tribunal in Luigiterzo Bosca v. Lithuania relied on article 3 to explain that
it “ha[d] to base its conclusions on the substantive provisions of that Agreement [Between
the Government of the Republic of Lithuania and the Government of the Italian Republic
on the Promotion and Protection of Investments of 1994]”.[169] 26
[A/71/80, para. 24]
International arbitral tribunal (under the ICSID Convention)
The Rompetrol Group N.V. v. Romania
The arbitral tribunal in The Rompetrol Group N.V. v. Romania cited article 3 and the
commentary thereto when outlining
two elementary propositions: first, that it is well established that a breach of local law injuring a
foreigner does not, in and of itself, amount to a breach of international law; second, that the provisions
or requirements of local law cannot be advanced as an excuse for non-compliance with an
international obligation.[170] 27
[A/71/80, para. 25]
Convial Callao S.A. and CCI v. Peru
In Convial Callao S.A. and CCI v. Peru, the arbitral tribunal cited article 3 when it
indicated that:
Es un principio bien establecido del derecho internacional, que se trate de la responsabilidad internacional
del Estado o de la validez de normas o de figuras jurídicas de derecho interno en derecho
[167] 31 ICSID, Case No. ARB/03/23, Award, 11 June 2012, paras. 906–907.
[168] 32 ICSID, Case No. ARB/09/5, Award, 17 August 2012, para. 367, footnote 354.
[169] 26 PCA, Case No. 2011–05, Award, 17 May 2013, para. 199.
[170] 27 See note [17] 5 above, para. 174, footnote 299.
44 Article 3
internacional, que este último es independiente del primero cuando se trata de analizar la validez
y el alcance internacionales del derecho interno o de los comportamientos estatales de carácter
interno. Así, en el terreno de la responsabilidad, la violación de derecho interno no significa necesariamente
que el derecho internacional resulte violado, y en el terreno de la validez de normas y
figuras jurídicas internas en el derecho internacional, tampoco significa que aquellas gocen de plena
validez en el derecho internacional y sean oponibles a terceros Estados.[171] 28
[A/71/80, para. 26]
Inter-American Court of Human Rights
Case of the Ituango Massacres v. Colombia
In Case of the Ituango Massacres v. Colombia, the Inter-American Court of Human
Rights, in an order regarding compliance of the State with its previous judgment, referred
to the State responsibility articles in conjunction with the principle codified in article 27 of
the Vienna Convention on the Law of Treaties that “a party may not invoke the provisions
of its internal law as justification for its failure to perform a treaty”.[172] 29
[A/71/80, para. 27]
European Court of Human Rights
Anchugov and Gladkov v. Russia
In Anchugov and Gladkov v. Russia, the European Court of Human Rights referred to
article 3 and excerpts of the commentary thereto as relevant international law.[173] 30
[A/71/80, para. 28]
Permanent Court of Arbitration (under UNCITRAL Rules)
ECE Projektmanagement v. The Czech Republic
The arbitral tribunal, in ECE Projektmanagement v. The Czech Republic, noted that the
principle that an unlawful act under domestic law does not necessarily mean that the act was
unlawful under international law
forms part of the more general principle, recognised in Article 27 of the Vienna Convention on the
Law of Treaties, and more generally in Article 3 of the ILC’s Articles on the Responsibility of States
for Internationally Wrongful Acts, that the characterisation of a given act as internationally wrongful
is independent of its characterisation as lawful under the internal law of a State.[174] 31
The arbitral tribunal further noted that, “[a]s indicated in the ILC’s Commentary, the
principle embodies two elements”, first that only a breach of an international obligation
can be characterized as internationally wrongful, and second, that a State cannot escape
[171] 28 ICSID, Case No. ARB/10/2, Final Award, 21 May 2013, para. 405, footnote 427 (footnotes omitted).
[172] 29 IACHR, Order, 21 May 2013, para. 27, footnote 20 (quoting article 27 of the Vienna Convention
on the Law of Treaties).
[173] 30 ECHR, First Section, Application No. 11157/04, Judgment, 4 July 2013, para 37.
[174] 31 PCA, Case No. 2010–5, Award, 19 September 2013, para. 4.749.
Article 3 45
that characterization as internationally wrongful “by pleading that its conduct conforms
to the provisions of its internal law”.[175] 32
[A/71/80, para. 29]
Inter-American Court of Human Rights
Gutiérrez and Family v. Argentina
In Gutiérrez and Family v. Argentina, the Inter-American Court of Human Rights
cited article 3 when “reiterat[ing] that, in cases such as this one, it must rule on the conformity
of the State’s actions with the American Convention”.[176] 33
[A/71/80, para. 30]
Rights and guarantees of children in the context of migration and/or in need of international
protection
In its advisory opinion on Rights and guarantees of children in the context of migration
and/or in need of international protection, the Inter-American Court of Human Rights, citing
article 3, stated that its mandate “consists, essentially, in the interpretation and application
of the American Convention or other treaties for which it has jurisdiction, in order
to determine … the international responsibility of the State under international law”.[177] 34
[A/71/80, para. 31]
International arbitral tribunal (under the ICSID Convention)
Perenco Ecuador Ltd. v. Ecuador
In Perenco Ecuador Ltd. v. Ecuador, the arbitral tribunal noted, on the basis of the
“well-established principle” recognized in article 3, that international law prevails in case
of conflict with internal law.[178] 35 It further noted that
under well-established principles of international law, as codified in Article 3 of the ILC Articles on
State Responsibility, the fact that a law has been declared constitutional by the local courts, even by the
highest court of the land, is not dispositive of whether it was in conformity with international law.[179] 36
[A/71/80, para. 32]
Vigotop Limited v. Hungary
In Vigotop Limited v. Hungary, the arbitral tribunal, referring to article 3, agreed with
the claimant’s submission that “even though a finding that the termination violated the
[175] 32 Ibid., para. 4.750 (quoting para. (1) of the commentary to article 3).
[176] 33 See note [112] 22 above, footnote 242.
[177] 34 IACHR, Advisory Opinion, 19 August 2014, footnote 52 (footnotes omitted).
[178] 35 ICSID, Case No. ARB/08/6, Decision on Remaining Issues of Jurisdiction and on Liability,
12 September 2014, para. 534.
[179] 36 Ibid., para. 583.
46 Article 3
terms of the Concession Contract or provisions of Hungarian law may be relevant to its
expropriation analysis, such a finding is neither necessary nor sufficient to conclude that
Article 4 of the Treaty was violated”.[180] 37
[A/71/80, para. 33]
International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia)
In Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), the International Court of Justice noted that
in either of these situations [of showing that genocide as defined in the Genocide Convention has
been committed], the Court applies the rules of general international law on the responsibility of
States for internationally wrongful acts. Specifically, Article 3 of the ILC Articles on State Responsibility,
which reflects a rule of customary law, states that ‘[t]he characterization of an act of a State
as internationally wrongful is governed by international law’.[181] 38
[A/71/80, para. 34]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Crystallex International Corporation v. Bolivarian Republic of Venezuela
In Crystallex International Corporation v. Bolivarian Republic of Venezuela, the arbitral
tribunal cited article 3 when noting that “[a]s is well-established in investment treaty
jurisprudence, treaty and contract claims are distinct issues”.[182] 21
[A/74/83, p. 8]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Vestey Group Limited Ltd. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Vestey Group Limited Ltd. v. Bolivarian Republic of Venezuela
decided “not [to] consider the provisions of the Land Law in assessing [applicant’s] ownership
over allegedly expropriated land”, noting that this was also in line with article 3 of the
State responsibility articles as a “cornerstone rule of international law”.[183] 22
[A/74/83, p. 8]
[180] 37 ICSID, Case No. ARB/11/22, Award, 1 October 2014, para. 327.
[181] 38 ICJ, Judgment of 3 February 2015, para. 128.
[182] 21 ICSID, (Additional Facility), Case No. ARB(AF)/11/2, Award, 4 April 2016, para. 474, citing
Compañía de Aguas del Aconquija S.A. and Vivendi Universal v. Argentina Republic, ICSID Case
No. ARB/97/3, Decision on Annulment, 3 July 2002, paras. 95–96.
[183] 22 ICSID, Case No. ARB/06/4, Award, 15 April 2016, para. 254 and footnote 234.
Article 3 47
Permanent Court of Arbitration (under UNCITRAL Rules)
Flemingo DutyFree Shop Private Limited v. The Republic of Poland
In Flemingo DutyFree Shop Private Limited v. The Republic of Poland, the arbitral tribunal
cited article 3 to emphasize that “the circumstance that an entity is not considered a
State organ under domestic law does not prevent that entity from being considered as such
under international law for State responsibility purposes”.[184] 23
[A/74/83, p. 8]
International arbitral tribunal (under the ICSID Convention)
Pac Rim Casado Llc v. Republic of El Salvador
In Pac Rim Casado Llc v. Republic of El Salvador, the arbitral tribunal, citing article 3, noted
that “[i]t is well established that a State cannot justify the non-observance of its international
obligations in an international arbitration by invoking provisions of its domestic law”.[185] 24
[A/74/83, p. 8]
Ad hoc committee (under the ICSID Convention)
Venezuela Holdings BV and ors v. Venezuela
In Venezuela Holdings BV and ors v. Venezuela, the ad hoc committee constituted to
decide on the annulment of the award referred to the commentary to article 3 of the State
responsibility when stating that it seemed “obvious that in an appropriate case the resolution
of a disputed issue under international law can itself entail the application of national
law, simply because that is what the international rule requires”.[186] 25
[A/74/83, p. 9]
Arbitration Institute of the Stockholm Chamber of Commerce
SunReserve Luxco Holdings S.R.L. v. Italy
The arbitral tribunal in SunReserve Luxco Holdings S.R.L. v. Italy considered that
article 3 of the State responsibility articles and article 27 of the Vienna Convention on the
Law of Treaties “codify the principles that a State cannot invoke its domestic law to either
(i) influence or affect the characterization of an internationally wrongful act; or (ii) justify
its failure to perform a treaty obligation”.[187] 20
[A/77/74, p. 8]
[184] 23 PCA, Award, IIC 883 (2016), 12 August 2016, para. 433.
[185] 24 ICSID, Case No. ARB/09/12, Award, 14 October 2016, para. 5.62.
[186] 25 ICSID, Case No. ARB/07/27, Decision on annulment, 9 March 2017, paras. 161 and 181.
[187] 20 SCC, Case No. 132/2016, Final Award, 25 March 2020, para. 982.
48 Article 3
International arbitral tribunal (under the ICSID Convention)
Addiko Bank AG and Addiko Bank d.d. v. Republic of Croatia
In Addiko Bank AG and Addiko Bank d.d. v. Republic of Croatia, the arbitral tribunal
analysed the role of domestic law and whether investments had to be carried out under
Croatian law to qualify for protection under the investment treaty. The tribunal recalled
that in the decision on annulment in Azurix v. Argentine Republic, the committee had used
article 3 and its commentary as the framework for a similar analysis, under which “‘internal
law is relevant to the question of international responsibility’, but ‘this is because the
rule of international law makes it relevant’”, particularly when the provisions of internal
law “‘are actually incorporated in some form, conditionally or unconditionally, into that
standard’, but international law remains the governing law of the dispute”.[188] 21
[A/77/74, p. 8]
Court of Justice of the European Union
European Commission v. Hungary
In European Commission v. Hungary, the Grand Chamber of the Court of Justice of
the European Union referred to article 3,
which codif[ies] customary international law and [is] applicable to the Union, the characterization
of an act of a State as being ‘internationally wrongful’ is governed solely by international law.
Consequently, that characterization cannot be affected by any characterization of the same act that
might be made under [European Union] law.[189] 22
[A/77/74, p. 8]
International arbitral tribunal (under the ICSID Convention)
BayWa r.e. Renewable Energy GmbH and BayWa r.e. Asset Holding GmbH v. Kingdom of Spain
In BayWa r.e. Renewable Energy GmbH and BayWa r.e. Asset Holding GmbH v. Kingdom
of Spain, the arbitral tribunal referred to article 3 in stating that, “[i]n an international
forum such as the present one, a host State may not rely on its domestic law as a ground for
non-fulfilment of its international obligations”.[190] 23
[A/77/74, p. 8]
[188] 21 ICSID, Case No. ARB/17/37, Decision on Croatia’s Jurisdictional Objection Related to the
Alleged Incompatibility of the BIT with the EU Acquis, 12 June 2020, para. 263, citing Azurix Corp. v.
Argentine Republic, ICSID Case No. ARB/01/12, Decision on Annulment, 1 September 2009, para. 149.
[189] 22 CJEU, Grand Chamber, Case No. C-66/18, Judgment, 6 October 2020, para. 88.
[190] 23 ICSID, Case No. ARB/15/16, Award, 25 January 2021, para. 569 (a).
Article 3 49
International arbitral tribunal (under the ICSID Additional Facility Rules)
América Móvil S.A.B. de C.V. v. Colombia
The arbitral tribunal in América Móvil S.A.B. de C.V. v. Colombia noted that “it is
undisputable … that international law does not permit States to shield themselves behind
their domestic law in order to evade their responsibility under international law, since
international law excludes the possibility of the international lawfulness of the conduct of
a State being assessed on the basis of domestic law”, a “fundamental principle” that was
codified in article 27 of the Vienna Convention on the Law of Treaties and article 3 of the
State responsibility articles.[191] 24 Furthermore, the arbitral tribunal noted that “referring to
Colombian law to determine the existence of a right to non-reversion clearly does not violate
the principle codified in article 3 of the articles on State responsibility, which prevent
a State from using its internal law to absolve itself of its international responsibility”.[192] 25
[A/77/74, p. 8]
International arbitral tribunal (under the ICSID Convention)
Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine
Republic
In Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine
Republic, the arbitral tribunal quoted article 3,[193] 26 going on to explain “[t]hat a treaty
claim remains governed by treaty law does not mean, however, that domestic law is wholly
irrelevant for the determination of compliance with, or liability under, a BIT, including the BIT
governing the present dispute”. The tribunal noted that an investment treaty “may expressly
refer to domestic law” for the determination of questions such as the investor’s nationality “or
compliance with domestic law under an in-accordance-with-host-State-law clause”, as “certain
elements of a treaty can only be determined by recourse to domestic law (such as whether
an investor has title to a certain asset or what the treatment afforded under domestic law is for
purposes of assessing compliance with a national treatment provision)”.[194] 27
[A/77/74, p. 9]
[191] 24 ICSID, Case No. ARB(AF)/16/5, Award, 7 May 2021, para. 417.
[192] 25 Ibid., para. 422.
[193] 26 ICSID, Case No. ARB/14/32, Award, 5 November 2021, para. 315.
[194] 27 Ibid., para. 316.
50
Chapter II
ATTRIBUTION OF CONDUCT TO A STATE
Commentary
(1) In accordance with article 2, one of the essential conditions for the international
responsibility of a State is that the conduct in question is attributable to the State under
international law. Chapter II defines the circumstances in which such attribution is justified,
i.e. when conduct consisting of an act or omission or a series of acts or omissions is to
be considered as the conduct of the State.
(2) In theory, the conduct of all human beings, corporations or collectivities linked to the
State by nationality, habitual residence or incorporation might be attributed to the State,
whether or not they have any connection to the Government. In international law, such an
approach is avoided, both with a view to limiting responsibility to conduct which engages
the State as an organization, and also so as to recognize the autonomy of persons acting
on their own account and not at the instigation of a public authority. Thus the general rule
is that the only conduct attributed to the State at the international level is that of its organs
of government, or of others who have acted under the direction, instigation or control of
those organs, i.e. as agents of the State.[195] 92
(3) As a corollary, the conduct of private persons is not as such attributable to the State.
This was established, for example, in the Tellini case of 1923. The Council of the League of
Nations referred to a Special Commission of Jurists certain questions arising from an incident
between Italy and Greece.[196] 93 This involved the assassination on Greek territory of the
Chairman and several members of an international commission entrusted with the task of
delimiting the Greek-Albanian border. In reply to question five, the Commission stated that:
The responsibility of a State is only involved by the commission in its territory of a political crime
against the persons of foreigners if the State has neglected to take all reasonable measures for the
prevention of the crime and the pursuit, arrest and bringing to justice of the criminal.[197] 94
(4) The attribution of conduct to the State as a subject of international law is based on criteria
determined by international law and not on the mere recognition of a link of factual
[195] 92 See, e.g., I. Brownlie, System of the Law of Nations: State Responsibility, Part I (Oxford, Clarendon
Press, 1983), pp. 132–166; D. D. Caron, “The basis of responsibility: attribution and other transsubstantive
rules”, The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility,
R. B. Lillich and D. B. Magraw, eds. (Irvington-on-Hudson, N.Y., Transnational, 1998), p. 109; L.
Condorelli, “L’imputation à l’État d’un fait internationalement illicite : solutions classiques et nouvelles
tendances”, Recueil des cours … , 1984–VI (Dordrecht, Martinus Nijhoff, 1988), vol. 189, p. 9; H. Dipla, La
responsabilité de l’État pour violation des droits de l’homme: problèmes d’imputation (Paris, Pedone, 1994);
A. V. Freeman, “Responsibility of States for unlawful acts of their armed forces”, Recueil des cours … ,
1955–II (Leiden, Sijthoff, 1956), vol. 88, p. 261; and F. Przetacznik, “The international responsibility of States
for the unauthorized acts of their organs”, Sri Lanka Journal of International Law, vol. 1 (June 1989), p. 151.
[196] 93 League of Nations, Official Journal, 4th Year, No. 11 (November 1923), p. 1349.
[197] 94 Ibid., 5th Year, No. 4 (April 1924), p. 524. See also the Janes case, UNRIAA, vol. IV (Sales
No. 1951.V.1), p. 82 (1925).
Part One, C hapter II 51
causality. As a normative operation, attribution must be clearly distinguished from the characterization
of conduct as internationally wrongful. Its concern is to establish that there is
an act of the State for the purposes of responsibility. To show that conduct is attributable to
the State says nothing, as such, about the legality or otherwise of that conduct, and rules of
attribution should not be formulated in terms which imply otherwise. But the different rules
of attribution stated in chapter II have a cumulative effect, such that a State may be responsible
for the effects of the conduct of private parties, if it failed to take necessary measures to
prevent those effects. For example, a receiving State is not responsible, as such, for the acts of
private individuals in seizing an embassy, but it will be responsible if it fails to take all necessary
steps to protect the embassy from seizure, or to regain control over it.[198] 95 In this respect
there is often a close link between the basis of attribution and the particular obligation said
to have been breached, even though the two elements are analytically distinct.
(5) The question of attribution of conduct to the State for the purposes of responsibility
is to be distinguished from other international law processes by which particular organs
are authorized to enter into commitments on behalf of the State. Thus the Head of State or
Government or the minister of foreign affairs is regarded as having authority to represent
the State without any need to produce full powers.[199] 96 Such rules have nothing to do with
attribution for the purposes of State responsibility. In principle, the State’s responsibility is
engaged by conduct incompatible with its international obligations, irrespective of the level
of administration or government at which the conduct occurs.[200] 97 Thus the rules concerning
attribution set out in this chapter are formulated for this particular purpose, and not for
other purposes for which it may be necessary to define the State or its Government.
(6) In determining what constitutes an organ of a State for the purposes of responsibility,
the internal law and practice of each State are of prime importance. The structure of the State
and the functions of its organs are not, in general, governed by international law. It is a matter
for each State to decide how its administration is to be structured and which functions are to
be assumed by government. But while the State remains free to determine its internal structure
and functions through its own law and practice, international law has a distinct role.
For example, the conduct of certain institutions performing public functions and exercising
public powers (e.g. the police) is attributed to the State even if those institutions are regarded
in internal law as autonomous and independent of the executive government.[201] 98 Conduct
engaged in by organs of the State in excess of their competence may also be attributed to the
State under international law, whatever the position may be under internal law.[202] 99
(7) The purpose of this chapter is to specify the conditions under which conduct is attributed
to the State as a subject of international law for the purposes of determining its international
responsibility. Conduct is thereby attributed to the State as a subject of international law and
not as a subject of internal law. In internal law, it is common for the “State” to be subdivided
into a series of distinct legal entities. For example, ministries, departments, component units
of all kinds, State commissions or corporations may have separate legal personality under
[198] 95 See United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above).
[199] 96 See articles 7, 8, 46 and 47 of the 1969 Vienna Convention.
[200] 97 The point was emphasized, in the context of federal States, in LaGrand (footnote [150] 91
above). It is not of course limited to federal States. See further article 5 and commentary.
[201] 98 See paragraph (11) of the commentary to article 4; see also article 5 and commentary.
[202] 99 See article 7 and commentary.
52 Part One, Chapter II
internal law, with separate accounts and separate liabilities. But international law does not
permit a State to escape its international responsibilities by a mere process of internal subdivision.
The State as a subject of international law is held responsible for the conduct of all
the organs, instrumentalities and officials which form part of its organization and act in that
capacity, whether or not they have separate legal personality under its internal law.
(8) Chapter II consists of eight articles. Article 4 states the basic rule attributing to the
State the conduct of its organs. Article 5 deals with conduct of entities empowered to exercise
the governmental authority of a State, and article 6 deals with the special case where
an organ of one State is placed at the disposal of another State and empowered to exercise
the governmental authority of that State. Article 7 makes it clear that the conduct of organs
or entities empowered to exercise governmental authority is attributable to the State even
if it was carried out outside the authority of the organ or person concerned or contrary to
instructions. Articles 8 to 11 then deal with certain additional cases where conduct, not that
of a State organ or entity, is nonetheless attributed to the State in international law. Article 8
deals with conduct carried out on the instructions of a State organ or under its direction or
control. Article 9 deals with certain conduct involving elements of governmental authority,
carried out in the absence of the official authorities. Article 10 concerns the special case of
responsibility in defined circumstances for the conduct of insurrectional movements. Article
11 deals with conduct not attributable to the State under one of the earlier articles which
is nonetheless adopted by the State, expressly or by conduct, as its own.
(9) These rules are cumulative but they are also limitative. In the absence of a specific
undertaking or guarantee (which would be a lex specialis[203] 100), a State is not responsible
for the conduct of persons or entities in circumstances not covered by this chapter. As the
Iran-United States Claims Tribunal has affirmed, “in order to attribute an act to the State,
it is necessary to identify with reasonable certainty the actors and their association with
the State”.[204] 101 This follows already from the provisions of article 2.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International Tribunal for the Former Yugoslavia
Prosecutor v. Tihomir Blaškić (“Lasva Valley”)
In its 1997 judgement on the request of the Republic of Croatia for review of the
decision of Trial Chamber II of 18 July 1997 in the Blaškić case, the Appeals Chamber of
the International Tribunal for the Former Yugoslavia considered the situation in which,
following the issue of a binding order of the Tribunal to a State for the production of documents
necessary for trial, “a State official who holds evidence in his official capacity, having
been requested by his authorities to surrender it to the International Tribunal … refuses
[203] 100 See article 55 and commentary.
[204] 101 Kenneth P. Yeager v. The Islamic Republic of Iran, Iran–U.S. C.T.R., vol. 17 , p. 92, at pp. 101–
102 (1987).
Part One, Chapter II 53
to do so, and the central authorities [do] not have the legal or factual means available to
enforce the International Tribunal’s request”.[205] 25 The Appeals Chamber observed that
in this scenario, the State official, in spite of the instructions received from his Government, is
deliberately obstructing international criminal proceedings, thus jeopardizing the essential function
of the International Tribunal: dispensation of justice. It will then be for the Trial Chamber to
determine whether or not also to call to account the State; the Trial Chamber will have to decide
whether or not to make a judicial finding of the State’s failure to comply with article 29 (on the basis
of article 11 of the International Law Commission’s draft articles on State responsibility) and ask the
President of the International Tribunal to forward it to the Security Council.[206] 26
[A/62/62, para. 19]
World Trade Organization panel
United States—Certain Country of Origin Labelling (COOL) Requirements
The panel in United States—Certain Country of Origin Labelling (COOL) Requirements
observed that the “relevant provisions” of the State responsibility articles are consistent with
the notion that acts or omissions attributable to a WTO member are “in the usual case, the
acts or omissions of the organs of the state, including those of the executive branch”.[207] 33
[A/68/72, para. 30]
European Court of Human Rights
Kotov v. Russia
In Kotov v. Russia, the European Court of Human Rights referred to the commentary
to Chapter II in describing the law relevant to the attribution of international responsibility
to States.[208] 34
[A/68/72, para. 31]
[205] 25 ICTY, Appeals Chamber, Judgement on the Request of the Republic of Croatia for Review of
the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95–14, 29 October 1997, para. 51.
[206] 26 Ibid. Draft article 11, as adopted by the International Law Commission on first reading, was
deleted on second reading on the understanding that its “negative formulation” rendered it “unnecessary”
in the codification of State responsibility (Yearbook … 1998, vol. II (Part Two), p. 85, para. 419). However,
the principles reflected in that provision are referred to in paragraphs (3) and (4) of the introductory commentary
to chapter II of the articles finally adopted in 2001 (see Yearbook of the International Law Commission,
2001, vol. II (Part Two), para. 77). The text of draft article 11 adopted on first reading was the following:
Article 11
Conduct of persons not acting on behalf of the State
1. The conduct of a person or a group of persons not acting on behalf of the State shall
not be considered as an act of the State under international law.
2. Paragraph 1 is without prejudice to the attribution to a State of any other conduct
which is related to that referred to in that paragraph and which is to be considered as an act
of that State by virtue of articles 5 to 10.
[207] 33 WTO, Panel Reports, WT/DS384/R and WT/DS386/R, 18 November 2011, para. 7.16, footnote 41.
[208] 34 See footnote [16] 14 above, para. 30 (citing paragraph (6) of the commentary to Chapter II).
54 Part One, Chapter II
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
In Hulley Enterprises Limited (Cyprus) v. The Russian Federation, the arbitral tribunal noted
[t]he ILC Articles on State Responsibility are in point. … Chapter II, ‘Attribution of Conduct to
a State,’ in its introductory commentary, observes that, ‘the general rule is that the only conduct
attributed to the State at the international level is that of its organs of government, or of others who
have acted under the direction, instigation or control of those organs, i.e., as agents of the State’.[209] 39
[A/71/80, para. 35]
International arbitral tribunal (under the ICSID Convention) and Ad Hoc
Committee (under the ICSID Convention)
Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey
In Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey, the arbitral
tribunal “accept[ed] that the ILC Articles constitute a codification of customary international
law with respect to the issue of attribution of conduct to the State and apply to the
present dispute”.[210] 40 The ad hoc committee subsequently constituted to decide upon an
application to annul the award in the case, noted that “[i]nternational law contains rules
on attribution which the ILC codified and developed in Chapter II of its Articles on State
Responsibility (Articles 4–11)”.[211] 41
[A/71/80, para. 36]
European Court of Human Rights
Tagayeva and Others v. Russia
In Tagayeva and Others v. Russia, the European Court of Human Rights took note
of the State responsibility articles, in particular of the principle stated in paragraph 3 of
the commentary to chapter II, when indicating that “the conduct of private persons is not
as such attributable to the State”. As such, “human rights violations committed by private
persons are outside of the Court’s competence ratione personae”.[212] 42
[A/71/80, para. 37]
Permanent Court of Arbitration (under UNCITRAL Rules)
Mr. Kristian Almås and Mr. Geir Almås v. The Republic of Poland
The arbitral tribunal in Mr. Kristian Almås and Mr. Geir Almås v. The Republic of
Poland cited the commentary to Chapter II of the State responsibility when stating that
[209] 39 See footnote [19] 7 above, para. 1466.
[210] 40 ICSID, Case No. ARB/11/28, Award, 10 March 2014, para. 281. (See also footnote [128] 16 above.)
[211] 41 See footnote [115] 25 above, para. 184.
[212] 42 ECHR, First Section, Application No. 26562, Decision, 9 June 2015, para. 581.
Part One, Chapter II 55
“ANR [the Polish Agricultural Property Agency] does not meet the criteria usually applied
to determine whether an entity is a de facto State organ”.[213] 26
[A/74/83, p. 9]
International arbitral tribunal (under the ICSID Convention)
Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela
The arbitral tribunal in Saint-Gobain Performance Plastics Europe v. Bolivarian
Republic of Venezuela, noted that it
does not have to decide whether CVG Bauxilum’s conduct is attributable to Respondent under the
ILC Draft Articles and whether a breach of contract could give rise to Respondent’s liability under
international law in light of CVG Bauxilum’s State-granted monopoly over the supply of bauxite in
Venezuela.[214] 27
[A/74/83, p. 9]
Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
The arbitral tribunal in Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
characterized resolution 56/83 of 12 December 2001, containing the State responsibility
articles, as “as a statement of customary international law on the question of attribution for
purposes of asserting the responsibility of a State towards another State, which is applicable
by analogy to the responsibility of States towards private parties”.[215] 28
[A/74/83, p. 9]
Georg Gavrilović and Gavrilović d.o.o. v. Republic of Croatia
The arbitral tribunal in Georg Gavrilović and Gavrilović d.o.o. v. Republic of Croatia
observed that
the ILC Articles are the relevant rules on attribution that are widely considered to reflect international
law. They concern the responsibility of States for their internationally wrongful acts, given the
existence of a primary rule establishing an obligation. These principles of attribution do not operate
to attach responsibility for ‘non-wrongful acts’ for which the State is assumed to have knowledge.[216] 29
The tribunal also noted that
the rules of attribution under international law as codified in the ILC Articles do not operate to
define the content of primary obligations, the breach of which gives rise to responsibility. Rather, the
[213] 26 PCA, Case No. 2015–13, Award, 27 June 2016, para. 210 (original emphasis).
[214] 27 ICSID, Case No. ARB/12/13, Decision on Liability and the Principles of Quantum,
30 December 2016, para. 536.
[215] 28 ICSID, Case No. ARB/14/1, Award, 16 May 2018, para. 167.
[216] 29 ICSID, Case No. ARB/12/39, Award, 26 July 2018, paras. 779 and 804.
56 Part One, Chapter II
rules concern the responsibility of States for their internationally wrongful acts. It follows that the
rules of attribution cannot be applied to create primary obligations for a State under a contract.[217] 30
[A/74/83, p. 9]
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
In Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, the tribunal “determine[d] the issues
of attribution by reference to Articles 4, 5, 8 and 11 of the ILC’s Articles on State Responsibility,
being declaratory of customary international law, as argued by the Parties”.[218] 31
[A/74/83, p. 10]
[217] 30 Ibid., para. 856.
[218] 31 ICSID, Case No. ARB/14/4, Award, 31 August 2018, para. 9.49 (see also para. 9.90).
57
Article 4. Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial or any other
functions, whatever position it holds in the organization of the State, and whatever its
character as an organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance
with the internal law of the State.
Commentary
(1) Paragraph 1 of article 4 states the first principle of attribution for the purposes of State
responsibility in international law—that the conduct of an organ of the State is attributable
to that State. The reference to a “State organ” covers all the individual or collective entities
which make up the organization of the State and act on its behalf. It includes an organ of
any territorial governmental entity within the State on the same basis as the central governmental
organs of that State: this is made clear by the final phrase.
(2) Certain acts of individuals or entities which do not have the status of organs of the
State may be attributed to the State in international law, and these cases are dealt with in
later articles of this chapter. But the rule is nonetheless a point of departure. It defines
the core cases of attribution, and it is a starting point for other cases. For example, under
article 8 conduct which is authorized by the State, so as to be attributable to it, must have
been authorized by an organ of the State, either directly or indirectly.
(3) That the State is responsible for the conduct of its own organs, acting in that capacity,
has long been recognized in international judicial decisions. In the Moses case, for
example, a decision of a Mexico-United States Mixed Claims Commission, Umpire Lieber
said: “An officer or person in authority represents pro tanto his government, which in an
international sense is the aggregate of all officers and men in authority”.[219] 102 There have
been many statements of the principle since then.[220] 103
(4) The replies by Governments to the Preparatory Committee for the 1930 Hague Conference[
221] 104 were unanimously of the view that the actions or omissions of organs of the
State must be attributed to it. The Third Committee of the Conference adopted unanimously
on first reading an article 1, which provided that international responsibility shall
be incurred by a State as a consequence of “any failure on the part of its organs to carry out
the international obligations of the State”.[222] 105
(5) The principle of the unity of the State entails that the acts or omissions of all its organs
should be regarded as acts or omissions of the State for the purposes of international
[219] 102 Moore, History and Digest, vol. III, p. 3127, at p. 3129 (1871).
[220] 103 See, e.g., Claims of Italian Nationals (footnote [35] 41 above); Salvador Commercial Company,
UNRIAA, vol. XV (Sales No. 66.V.3), p. 455, at p. 477 (1902); and Finnish Shipowners (Great Britain/
Finland), ibid., vol. III (Sales No. 1949.V.2), p. 1479, at p. 1501 (1934).
[221] 104 League of Nations, Conference for the Codification of International Law, Bases of Discussion
… (footnote [147] 88 above), pp. 25, 41 and 52; Supplement to Volume III: Replies made by the Governments
to the Schedule of Points; Replies of Canada and the United States of America (document C.75(a)
M.69(a).1929.V), pp. 2–3 and 6.
[222] 105 Reproduced in Yearbook … 1956, vol. II, p. 225, document A/CN.4/96, annex 3.
58 Article 4
responsibility. It goes without saying that there is no category of organs specially designated
for the commission of internationally wrongful acts, and virtually any State organ
may be the author of such an act. The diversity of international obligations does not permit
any general distinction between organs which can commit internationally wrongful acts
and those which cannot. This is reflected in the closing words of paragraph 1, which clearly
reflect the rule of international law in the matter.
(6) Thus the reference to a State organ in article 4 is intended in the most general sense.
It is not limited to the organs of the central government, to officials at a high level or to
persons with responsibility for the external relations of the State. It extends to organs of
government of whatever kind or classification, exercising whatever functions, and at whatever
level in the hierarchy, including those at provincial or even local level. No distinction
is made for this purpose between legislative, executive or judicial organs. Thus, in the
Salvador Commercial Company case, the tribunal said that:
a State is responsible for the acts of its rulers, whether they belong to the legislative, executive, or
judicial department of the Government, so far as the acts are done in their official capacity.[223] 106
ICJ has also confirmed the rule in categorical terms. In Difference Relating to Immunity
from Legal Process of a Special Rapporteur of the Commission on Human Rights, it said:
According to a well-established rule of international law, the conduct of any organ of a State must
be regarded as an act of that State. This rule … is of a customary character.[224] 107
In that case the Court was principally concerned with decisions of State courts, but the
same principle applies to legislative and executive acts.[225] 108 As PCIJ said in Certain German
Interests in Polish Upper Silesia (Merits):
From the standpoint of International Law and of the Court which is its organ, municipal laws …
express the will and constitute the activities of States, in the same manner as do legal decisions or
administrative measures.[226] 109
[223] 106 See Salvador Commercial Company (footnote [220] 103 above). See also Chattin case,
UNRIAA, vol. IV (Sales No. 1951.V.1), p. 282, at pp. 285–286 (1927); and Dispute concerning the interpretation
of article 79 of the Treaty of Peace, ibid., vol. XIII (Sales No. 64.V.3), p. 389, at p. 438 (1955).
[224] 107 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission
on Human Rights (footnote [50] 56 above), p. 87, para. 62, referring to the draft articles on State
responsibility, article 6, now embodied in article 4.
[225] 108 As to legislative acts, see, e.g., German Settlers in Poland (footnote [86] 65 above), at
pp. 35–36; Treatment of Polish Nationals (footnote [134] 75 above), at pp. 24–25; Phosphates in Morocco
(footnote [28] 34 above), at pp. 25–26; and Rights of Nationals of the United States of America in Morocco,
Judgment, I.C.J. Reports 1952, p. 176, at pp. 193–194. As to executive acts, see, e.g., Military and Paramilitary
Activities in and against Nicaragua (footnote [30] 36 above); and ELSI (footnote [144] 85 above).
As to judicial acts, see, e.g., “Lotus” (footnote [135] 76 above); Jurisdiction of the Courts of Danzig (footnote
[141] 82 above); and Ambatielos, Merits, Judgment, I.C.J. Reports 1953, p. 10, at pp. 21–22. In some
cases, the conduct in question may involve both executive and judicial acts; see, e.g., Application of the
Convention of 1902 (footnote [142] 83 above), at p. 65.
[226] 109 Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J.,
Series A, No. 7, at p. 19.
Article 4 59
Thus article 4 covers organs, whether they exercise “legislative, executive, judicial or any
other functions”. This language allows for the fact that the principle of the separation of
powers is not followed in any uniform way, and that many organs exercise some combination
of public powers of a legislative, executive or judicial character. Moreover, the term is
one of extension, not limitation, as is made clear by the words “or any other functions”.[227] 110
It is irrelevant for the purposes of attribution that the conduct of a State organ may be classified
as “commercial” or as acta iure gestionis. Of course, the breach by a State of a contract
does not as such entail a breach of international law.[228] 111 Something further is required
before international law becomes relevant, such as a denial of justice by the courts of the
State in proceedings brought by the other contracting party. But the entry into or breach of a
contract by a State organ is nonetheless an act of the State for the purposes of article 4,[229] 112
and it might in certain circumstances amount to an internationally wrongful act.[230] 113
(7) Nor is any distinction made at the level of principle between the acts of “superior” and
“subordinate” officials, provided they are acting in their official capacity. This is expressed
in the phrase “whatever position it holds in the organization of the State” in article 4. No
doubt lower-level officials may have a more restricted scope of activity and they may not
be able to make final decisions. But conduct carried out by them in their official capacity is
nonetheless attributable to the State for the purposes of article 4. Mixed commissions after
the Second World War often had to consider the conduct of minor organs of the State, such
as administrators of enemy property, mayors and police officers, and consistently treated
the acts of such persons as attributable to the State.[231] 114
(8) Likewise, the principle in article 4 applies equally to organs of the central government
and to those of regional or local units. This principle has long been recognized. For example,
the Franco-Italian Conciliation Commission in the Heirs of the Duc de Guise case said:
For the purposes of reaching a decision in the present case it matters little that the decree of
29 August 1947 was not enacted by the Italian State but by the region of Sicily. For the Italian State
[227] 110 These functions might involve, e.g. the giving of administrative guidance to the private
sector. Whether such guidance involves a breach of an international obligation may be an issue, but
as “guidance” it is clearly attributable to the State. See, e.g., GATT, Report of the Panel, Japan–Trade
in Semi-conductors, 24 March 1988, paras. 110–111; and WTO, Report of the Panel, Japan–Measures
affecting Consumer Photographic Film and Paper (WT/DS44/R), paras. 10.12–10.16.
[228] 111 See article 3 and commentary.
[229] 112 See, e.g., the decisions of the European Court of Human Rights in Swedish Engine Drivers’
Union v. Sweden, Eur. Court H.R., Series A, No. 20 (1976), at p. 14; and Schmidt and Dahlström v. Sweden,
ibid., Series A, No. 21 (1976), at p. 15.
[230] 113 The irrelevance of the classification of the acts of State organs as iure imperii or iure gestionis
was affirmed by all those members of the Sixth Committee who responded to a specific question on this
issue from the Commission (see Yearbook … 1998, vol. II (Part Two), p. 17, para. 35).
[231] 114 See, e.g., the Currie case, UNRIAA, vol. XIV (Sales No. 65.V.4), p. 21, at p. 24 (1954); Dispute
concerning the interpretation of article 79 (footnote [223] 106 above), at pp. 431–432; and Mossé case,
UNRIAA, vol. XIII (Sales No. 64.V.3), p. 486, at pp. 492–493 (1953). For earlier decisions, see the Roper
case, ibid., vol. IV (Sales No. 1951.V.1), p. 145 (1927); Massey, ibid., p. 155 (1927); Way, ibid., p. 391, at
p. 400 (1928); and Baldwin, ibid., vol. VI (Sales No. 1955.V.3), p. 328 (1933). Cf. the consideration of the
requisition of a plant by the Mayor of Palermo in ELSI (footnote [144] 85 above), e.g. at p. 50, para. 70.
60 Article 4
is responsible for implementing the Peace Treaty, even for Sicily, notwithstanding the autonomy
granted to Sicily in internal relations under the public law of the Italian Republic.[232] 115
This principle was strongly supported during the preparatory work for the 1930 Hague
Conference. Governments were expressly asked whether the State became responsible as a
result of “[a]cts or omissions of bodies exercising public functions of a legislative or executive
character (communes, provinces, etc.)”. All answered in the affirmative.[233] 116
(9) It does not matter for this purpose whether the territorial unit in question is a component
unit of a federal State or a specific autonomous area, and it is equally irrelevant
whether the internal law of the State in question gives the federal parliament power to compel
the component unit to abide by the State’s international obligations. The award in the
“Montijo” case is the starting point for a consistent series of decisions to this effect.[234] 117
The French-Mexican Claims Commission in the Pellat case reaffirmed “the principle of the
international responsibility … of a federal State for all the acts of its separate States which
give rise to claims by foreign States” and noted specially that such responsibility “… cannot
be denied, not even in cases where the federal Constitution denies the central Government
the right of control over the separate States or the right to require them to comply, in their
conduct, with the rules of international law”.[235] 118 That rule has since been consistently
applied. Thus, for example, in the LaGrand case, ICJ said:
Whereas 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; whereas the United States should take all
measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in
these proceedings; whereas, according to the information available to the Court, implementation of
the measures indicated in the present Order falls within the jurisdiction of the Governor of Arizona;
whereas the Government of the United States is consequently under the obligation to transmit the
present Order to the said Governor; whereas the Governor of Arizona is under the obligation to act
in conformity with the international undertakings of the United States.[236] 119
(10) The reasons for this position are reinforced by the fact that federal States vary widely in
their structure and distribution of powers, and that in most cases the constituent units have no
separate international legal personality of their own (however limited), nor any treaty-making
power. In those cases where the constituent unit of a federation is able to enter into international
agreements on its own account,[237] 120 the other party may well have agreed to limit itself to
[232] 115 UNRIAA, vol. XIII (Sales No. 64.V.3), p. 150, at p. 161 (1951). For earlier decisions, see, e.g.,
the Pieri Dominique and Co. case, ibid., vol. X (Sales No. 60.V.4), p. 139, at p. 156 (1905).
[233] 116 League of Nations, Conference for the Codification of International Law, Bases of Discussion
… (footnote [147] 88 above), p. 90; Supplement to Vol. III … (footnote [221] 104 above), pp. 3 and 18.
[234] 117 See Moore, History and Digest, vol. II, p. 1440, at p. 1440 (1874). See also De Brissot and
others, Moore, History and Digest, vol. III, pp. 2967, at pp. 2970–2971 (1855); Pieri Dominique and Co.
(footnote [232] 115 above), at pp. 156–157; Davy case, UNRIAA, vol. IX (Sales No. 59.V.5), p. 467, at p. 468
(1903); Janes case (footnote [197] 94 above); Swinney, UNRIAA, vol. IV (Sales No. 1951.V.1), p. 101 (1925);
Quintanilla, ibid., p. 101, at p. 103 (1925); Youmans, ibid., p. 110, at p. 116 (1925); Mallén, ibid., p. 173, at
p. 177 (1927); Venable, ibid., p. 218, at p. 230 (1925); and Tribolet, ibid., p. 598, at p. 601 (1925).
[235] 118 UNRIAA, vol. V (Sales No. 1952.V.3), p. 534, at p. 536 (1929).
[236] 119 LaGrand, Provisional Measures (footnote [150] 91 above). See also LaGrand (Germany v.
United States of America), Judgment, I.C.J. Reports 2001, p. 466, at p. 495, para. 81.
[237] 120 See, e.g., articles 56, paragraph 3, and 172, paragraph 3, of the Constitution of the Swiss
Confederation of 18 April 1999.
Article 4 61
recourse against the constituent unit in the event of a breach. In that case the matter will not
involve the responsibility of the federal State and will fall outside the scope of the present articles.
Another possibility is that the responsibility of the federal State under a treaty may be limited
by the terms of a federal clause in the treaty.[238] 121 This is clearly an exception to the general rule,
applicable solely in relations between the States parties to the treaty and in the matters which the
treaty covers. It has effect by virtue of the lex specialis principle, dealt with in article 55.
(11) Paragraph 2 explains the relevance of internal law in determining the status of a State
organ. Where the law of a State characterizes an entity as an organ, no difficulty will arise.
On the other hand, it is not sufficient to refer to internal law for the status of State organs. In
some systems the status and functions of various entities are determined not only by law but
also by practice, and reference exclusively to internal law would be misleading. The internal
law of a State may not classify, exhaustively or at all, which entities have the status of “organs”.
In such cases, while the powers of an entity and its relation to other bodies under internal
law will be relevant to its classification as an “organ”, internal law will not itself perform the
task of classification. Even if it does so, the term “organ” used in internal law may have a
special meaning, and not the very broad meaning it has under article 4. For example, under
some legal systems the term “government” refers only to bodies at the highest level such as
the Head of State and the cabinet of ministers. In others, the police have a special status,
independent of the executive; this cannot mean that for international law purposes they are
not organs of the State.[239] 122 Accordingly, a State cannot avoid responsibility for the conduct
of a body which does in truth act as one of its organs merely by denying it that status under
its own law. This result is achieved by the use of the word “includes” in paragraph 2.
(12) The term “person or entity” is used in article 4, paragraph 2, as well as in articles 5
and 7. It is used in a broad sense to include any natural or legal person, including an individual
office holder, a department, commission or other body exercising public authority,
etc. The term “entity” is used in a similar sense[240] 123 in the draft articles on jurisdictional
immunities of States and their property, adopted in 1991.
(13) Although the principle stated in article 4 is clear and undoubted, difficulties can arise
in its application. A particular problem is to determine whether a person who is a State
organ acts in that capacity. It is irrelevant for this purpose that the person concerned may
have had ulterior or improper motives or may be abusing public power. Where such a
person acts in an apparently official capacity, or under colour of authority, the actions in
question will be attributable to the State. The distinction between unauthorized conduct
of a State organ and purely private conduct has been clearly drawn in international arbitral
decisions. For example, the award of the Mexico-United States General Claims Commission
in the Mallén case involved, first, the act of an official acting in a private capacity and,
secondly, another act committed by the same official in his official capacity, although in
an abusive way.[241] 124 The latter action was, and the former was not, held attributable to the
[238] 121 See, e.g., article 34 of the Convention for the Protection of the World Cultural and Natural
Heritage.
[239] 122 See, e.g., the Church of Scientology case, Germany, Federal Supreme Court, Judgment of
26 September 1978, case No. VI ZR 267/76, Neue Juristische Wochenschrift, No. 21 (May 1979), p. 1101;
ILR, vol. 65, p. 193; and Propend Finance Pty Ltd. v. Sing, England, Court of Appeal, ILR, vol. 111, p. 611
(1997). These were State immunity cases, but the same principle applies in the field of State responsibility.
[240] 123 See Yearbook … 1991, vol. II (Part Two), pp. 14–18.
[241] 124 Mallén (footnote [234] 117 above), at p. 175.
62 Article 4
State. The French-Mexican Claims Commission in the Caire case excluded responsibility
only in cases where “the act had no connexion with the official function and was, in fact,
merely the act of a private individual”.[242] 125 The case of purely private conduct should not
be confused with that of an organ functioning as such but acting ultra vires or in breach
of the rules governing its operation. In this latter case, the organ is nevertheless acting in
the name of the State: this principle is affirmed in article 7.[243] 126 In applying this test, of
course, each case will have to be dealt with on the basis of its own facts and circumstances.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Iran-United States Claims Tribunal
International Technical Products Corporation and ITP Export Corporation, its whollyowned
subsidiary v. Islamic Republic of Iran and its agencies, The Islamic Republic Iranian
Air Force, and the Ministry of National Defense, acting for the Civil Aviation Organization
In its 1985 award in the International Technical Products Corp. v. Islamic Republic
of Iran case, the Tribunal, in examining the issue whether Bank Tejarat, a Governmentowned
bank with a separate legal personality, had acted in its capacity as a State organ in
taking control of a building owned by the claimants, referred in a footnote to the text of
draft article 5 provisionally adopted by the International Law Commission[244] 27 and the
commentary thereto.[245] 28 The Tribunal found, with regard to the taking of property, that
Bank Tejarat had not acted on instructions of the Government of the Islamic Republic of
Iran or otherwise performed governmental functions.
[A/62/62, para. 20]
Yeager v. Islamic Republic of Iran
In its 1987 award in the Yeager v. Islamic Republic of Iran case, the tribunal, in determining
whether its jurisdiction over the case was precluded by paragraph 11 of the Dec-
[242] 125 UNRIAA, vol. V (Sales No. 1952.V.3), p. 516, at p. 531 (1929). See also the Bensley case
in Moore, History and Digest, vol. III, p. 3018 (1850) (“a wanton trespass … under no color of official
proceedings, and without any connection with his official duties”); and the Castelain case ibid., p. 2999
(1880). See further article 7 and commentary.
[243] 126 See paragraph (7) of the commentary to article 7.
[244] 27 This provision was amended and incorporated in article 4 finally adopted by the International
Law Commission in 2001. The text of draft article 5 provisionally adopted by the Commission
was the following:
Article 5
Attribution to the State of the conduct of its organs
For the purposes of the present articles, conduct of any State organ having that status
under the internal law of that State shall be considered as an act of the State concerned under
international law, provided that organ was acting in that capacity in the case in question.
(Yearbook … 1980, vol. II (Part Two), para. 34.)
[245] 28 IUSCT, Award No. 196–302–3, 24 October 1985, Iran-United States Claims Tribunal
Reports, vol. 9 (1985-II), p. 238, footnote 35.
Article 4 63
laration of the Government of Algeria of 19 January 1981 (also known as the “General
Declaration”),[246] 29 referred in the following terms to draft articles 5 et seq. of the articles
provisionally adopted by the International Law Commission:
… the exclusion [referred to in paragraph 11(d) of the General Declaration] would only apply to acts
“which are not an act of the Government of Iran”. The Claimant relies on acts which he contends are
attributable to the Government of Iran. Acts “attributable” to a State are considered “acts of State”.
See draft articles on State responsibility adopted by the International Law Commission on first reading
(“ILC-Draft”, articles 5 et seq., 1980 Yearbook International Law Commission, vol. II, Part 2, at
pp. 30–34, United Nations doc. A/CN.4/SER.A/1980/Add.1 (Part 2). Therefore, paragraph 11 of the
General Declaration does not effectively restrict the Tribunal’s jurisdiction over this Claim.[247] 30
[A/62/62, para. 21]
International arbitral tribunal (under the ICSID Convention)
Amco Asia Corporation and Others v. Republic of Indonesia
In its 1984 award on the merits, the arbitral tribunal constituted to hear the Amco
Indonesia Corporation and Others v. Indonesia case considered that draft article 5 provisionally
adopted by the International Law Commission (as well as articles 3 and 10 provisionally
adopted), which it quoted in extenso, constituted “an expression of accepted
principles of international law”. The relevant passage is reproduced [on page 25] above.
[A/62/62, para. 22]
International Tribunal for the Former Yugoslavia
Prosecutor v. Tihomir Blaškić (“Lasva Valley”)
In its 1997 decision on the objection of the Republic of Croatia to the issuance of subpoenae
duces tecum in the Blaškić case, Trial Chamber II, in examining the question whether individuals
could be subject to orders (more specifically subpoenae duces tecum) from the International
Tribunal, quoted in a footnote, without any comment, but together with draft article 1,[248] 31
the text of draft article 5 adopted by the International Law Commission on first reading.[249] 32
[A/62/62, para. 23]
[246] 29 Under paragraph 11 of the Declaration of the Government of Algeria of 19 January 1981, the
United States of America agreed to “bar and preclude prosecution against Iran of any pending or future
claim … arising out of events occurring before the date of this Declaration related to … (d) injury to the
United States nationals or their property as a result of popular movements in the course of the Islamic
Revolution in Iran which were not an act of the Government of Iran”.
[247] 30 IUSCT, Award No. 324–10199–1, 2 November 1987, Iran-United States Claims Tribunal
Reports, vol. 17 (1987-IV), pp. 100–101, para. 33. (See also footnote [204] 101 above.)
[248] 31 See footnote [54] 10 and accompanying text above.)
[249] 32 ICTY, Trial Chamber II, Decision on the Objection of the Republic of Croatia to the Issuance
of Supoenae Duces Tecum, Case No. IT-95–14, 18 July 1997, para. 95, footnote 156. The text of draft article
5 adopted by the International Law Commission on first reading (see Yearbook … 1996, vol. II (Part
Two), para. 65) was identical to that of draft article 5 provisionally adopted (see footnote [244] 27 above).
64 Article 4
Prosecutor v. Tihomir Blaškić (“Lasva Valley”)
The decision of the Blaškić case (above) was later submitted, on request by the Republic of Croatia, to review by the Appeals Chamber.[250] 33 In its 1997 judgement on this matter in the Blaškić case, the Appeals Chamber observed that Croatia had submitted in its brief that the International Tribunal could not issue binding orders to State organs acting in their official capacity. The Appeals Chamber noted that, in support of this contention, Croatia had argued, inter alia,
that such a power, if there is one, would be in conflict with well-established principles of international law, in particular the principle, restated in article 5 of the draft articles on State responsibility adopted by the International Law Commission, whereby the conduct of any State organ must be considered as an act of the State concerned, with the consequence that any internationally wrongful act of a State official entails the international responsibility of the State as such and not that of the official.[251] 34
In dealing with this issue, the Appeals Chamber did not refer explicitly to the draft articles adopted by the International Law Commission. It observed nevertheless that:
It is well known that customary international law protects the internal organization of each sovereign State: it leaves it to each sovereign State to determine its internal structure and in particular to designate the individuals acting as State agents or organs. Each sovereign State has the right to issue instructions to its organs, both those operating at the internal level and those operating in the field of international relations, and also to provide for sanctions or other remedies in case of non-compliance with those instructions. The corollary of this exclusive power is that each State is entitled to claim that acts or transactions performed by one of its organs in its official capacity be attributed to the State, so that the individual organ may not be held accountable for those acts or transactions.[252] 35
The Appeals Chamber considered that there were no provisions or principles of the Statute of the International Tribunal which justified a departure from this well-established rule of international law and concluded that, both under general international law and the Statute itself, judges or a trial chamber could not address binding orders to State officials.[253] 36
[A/62/62, para. 24]
International Court of Justice
Difference relating to immunity from legal process of a special rapporteur of the Commission on Human Rights
In its 1999 advisory opinion on the Difference relating to immunity from legal process of a special rapporteur of the Commission on Human Rights, the Court considered that the principle embodied in draft article 6 adopted by the International Law Commission on first reading[254] 37 was “of a customary character” and constituted “a well-established rule of international law”:
[250] 33 See footnote [52] 8 above.
[251] 34 ICTY, Appeals Chamber, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95–14, 29 October 1997, para. 39. Croatia was referring to draft article 5 adopted by the International Law Commission on first reading.
[252] 35 Ibid., para. 41.
[253] 36 Ibid., paras. 42–43.
[254] 37 This provision was amended and incorporated in article 4 finally adopted by the International Law Commission in 2001. The text of draft article 6 adopted on first reading was the following:
Article 4 65
According to a well-established rule of international law, the conduct of any organ of a State must be
regarded as an act of that State. This rule, which is of a customary character, is reflected in article 6
of the draft articles on State responsibility adopted provisionally by the International Law Commission
on first reading … [255] 38
[A/62/62, para. 25]
International Tribunal for the Former Yugoslavia
Prosecutor v. Duško Tadić
In its 1999 judgement in the Tadić case, the Appeals Chamber, in commenting on the
1986 judgment of the International Court of Justice in the Military and Paramilitary Activities
in and against Nicaragua case, took note of the further statement made by the International
Court of Justice in its 1999 advisory opinion quoted above in the following terms:
It would … seem that in Nicaragua the Court distinguished between three categories of individuals.
The first comprised those who did have the status of officials: members of the Government administration
or armed forces of the United States. With regard to these individuals, the Court clearly started
from a basic assumption, which the same Court recently defined as ‘a well-established rule of international
law’ [see the advisory opinion on the Difference relating to immunity from legal process of a
special rapporteur of the Commission on Human Rights quoted [… ] above], that a State incurs responsibility
for acts in breach of international obligations committed by individuals who enjoy the status of
organs under the national law of that State or who at least belong to public entities empowered within
the domestic legal system of the State to exercise certain elements of governmental authority.[256] 39
In a footnote to this passage, the Appeals Chamber observed that “customary law
on the matter is correctly restated in article 5 of the draft articles on State responsibility
adopted in its first reading by the United Nations International Law Commission”.[257] 40
It further quoted the text of that provision, as well as of the corresponding draft article
provisionally adopted by the Commission’s Drafting Committee in 1998,[258] 41 which it
considered “even clearer” in that regard.
[A/62/62, para. 26]
Article 6
Irrelevance of the position of the organ in the organization of the State
The conduct of an organ of the State shall be considered as an act of that State under
international law, whether that organ belongs to the constituent, legislative, executive, judicial
or other power, whether its functions are of an international or an internal character,
and whether it holds a superior or a subordinate position in the organization of the State.
(Yearbook … 1980, vol. II (Part Two), para. 34.)
[255] 38 See footnote [50] 56 above, para. 62.
[256] 39 ICTY, Appeals Chamber, Case No. IT-94–1-A, 15 July 1999, para. 109 (footnotes omitted).
[257] 40 Ibid., para. 109, footnote 129.
[258] 41 The text of draft article 4 adopted by the Drafting Committee in 1998 was the following:
1. For the purposes of the present articles, the conduct of any State organ acting in that
capacity shall be considered an act of that State under international law, whether the organ
exercises legislative, executive, judicial or any other functions, whatever position it holds in
the organization of the State, and whatever its character as an organ of the central government
or of a territorial unit of the State.
2. For the purposes of paragraph 1, an organ includes any person or body which has that
status in accordance with the internal law of the State. (Yearbook … 2000, vol. II (Part Two), p. 65.)
66 Article 4
World Trade Organization panel
Korea—Measures Affecting Government Procurement
In its 2000 report on Korea—Measures Affecting Government Procurement, the panel
rejected the Republic of Korea’s argument according to which it would not be responsible for
the answer given by its ministry of commerce to questions asked by the United States during
the negotiations for the Republic of Korea’s accession to the Agreement on Government
Procurement based on the fact that the issues dealt with were under the competence of the
ministry of transportation. The panel considered that its finding according to which such
answer was given on behalf of the whole Korean Government was “supported by the long
established international law principles of State responsibility” by which “the actions and
even omissions of State organs acting in that capacity are attributable to the State as such
and engage its responsibility under international law”. In a footnote, the panel then referred
to draft articles 5 and 6, and the commentary thereto, as adopted by the International Law
Commission on first reading, which it considered applicable to the context of negotiations of
a multilateral agreement such as the Agreement on Government Procurement.[259] 42
[A/62/62, para. 27]
Ad hoc arbitral tribunal (MERCOSUR)
Import Prohibition of Remolded Tires from Uruguay
In its 2002 award, the ad hoc arbitral tribunal of MERCOSUR constituted to hear the
dispute presented by Uruguay against Brazil on the import prohibition of remolded tires
from Uruguay, in response to Brazil’s argument according to which some of the relevant
norms, rulings, reports and other acts from administrative organs were opinions from
various sectors of the public administration that had no specific competence regarding
the regulation of the country’s foreign trade policy, invoked the articles finally adopted
by the International Law Commission in 2001, and more particularly article 4, which it
considered a codification of customary law:
It should be recalled that the draft articles of the International Law Commission on State responsibility,
that codify customary law, state that, under international law, the conduct of any State organ shall
be considered an act of that State, whether the organ exercises legislative, executive, judicial or any other
functions, whatever position it holds in the organization of the State, and whatever its character as
an organ of the central government or of a territorial unit of the State (see article 4 of the draft articles
on State responsibility, adopted by the International Law Commission at its fifty-third session … )[260] 43
The tribunal thus considered that all the said acts of the administration were attributable
to Brazil.
[A/62/62, para. 28]
[259] 42 WTO, Panel Report, WT/DS163/R, 1 May 2000, para. 6.5, footnote 683.
[260] 43 MERCOSUR, Ad Hoc Tribunal, 9 January 2002, p. 39 (unofficial English translation).
Article 4 67
Ad Hoc Committee (under the ICSID Convention)
Compañia de Aguas del Aconquija SA and Vivendi Universal (formerly Compagnie générale
des eaux) v. Argentine Republic
In its 2002 decision on annulment in the CAA and Vivendi Universal v. Argentina case,
the ICSID ad hoc committee referred to the text and commentaries to articles 2, 4 and 12
finally adopted by the International Law Commission. The relevant passage is quoted [on
page 26 above]. Later in the same decision, when commenting on a passage of the challenged
award which “appears to imply that conduct of Tucumán carried out in the purported exercise
of its rights as a party to the Concession Contract could not, a priori, have breached”
the bilateral investment treaty concerned, the ad hoc committee again referred to the commentaries
to articles 4 and 12 in support of the statement that “there is no basis for such an
assumption: whether particular conduct involves a breach of a treaty is not determined by
asking whether the conduct purportedly involves an exercise of contractual rights.”[261] 44
[A/62/62, para. 29]
International arbitral tribunal (under ICSID Additional Facility Rules)
Mondev International Ltd. v. United States of America
In its 2002 award, the arbitral tribunal constituted in accordance with chapter 11
of NAFTA to hear the Mondev v. United States case noted that the United States had not
disputed that the decisions of the City of Boston, the Boston Redevelopment Authority and
the Massachusetts courts that were at stake in that case were attributable to it for purposes
of NAFTA. In a footnote, it referred to article 105 of NAFTA and to article 4 of the International
Law Commission articles as finally adopted in 2001.[262] 45
[A/62/62, para. 30]
ADF Group Inc. v. United States of America
In its 2003 award, the arbitral tribunal constituted in accordance with chapter 11 of
NAFTA to hear the ADF Group Inc. v. United States case, after having found that an “existing
non-conforming measure” of a “Party” saved by article 1108(1) of NAFTA might “not
only be a federal government measure but also a state or provincial government measure
and even a measure of a local government”,[263] 46 considered that its view was “in line with
[261] 44 ICSID, Ad Hoc Committee, Case No. ARB/97/3, Decision of Annulment, 3 July 2002,
para. 110 and footnote 78, reproduced in ICSID Review—Foreign Investment Law Journal, vol. 19, No. 1,
2004, p. 134. The committee referred, in particular, to paragraph (6) of the commentary to article 4 and
paragraphs (9) and (10) of the commentary to article 12 (see Yearbook of the International Law Commission,
2001, vol. II (Part Two), para. 77).
[262] 45 NAFTA (ICSID Additional Facility), Case No. ARB(AF)/99/2, Award, 11 October 2002,
para. 67, footnote 12, reproduced in International Law Reports, vol. 125, p. 130.
[263] 46 NAFTA (ICSID Additional Facility), Case No. ARB(AF)/00/1, Award, 9 January 2003,
para. 165, reproduced in ICSID Review—Foreign Investment Law Journal, vol. 18, No. 1, 2003, pp. 269–
270. As noted by the tribunal, the pertinent part of article 1108(1) of NAFTA states that articles 1102,
1103, 1106 and 1107 of the agreement do not apply to any “existing non-conforming measure” main68
Article 4
the established rule of customary international law”, formulated in article 4 finally adopted
by the International Law Commission in 2001, that “acts of all its governmental organs
and entities and territorial units are attributable to the State and that that State as a subject
of international law is, accordingly, responsible for the acts of all its organs and territorial
units”.[264] 47 The tribunal then quoted the text of that provision and observed in a footnote,
with reference to the commentary thereto, that
[t]he international customary law status of the rule is recognized in, inter alia, Differences relating to
immunity from legal process of a special rapporteur of the Commission on Human Rights … [see page 65
above]. See also paras. (8), (9) and (10) of the commentary of the International Law Commission [to
article 4], stressing that “the principle in article 4 applies equally to organs of the central government
and to those of regional or local units” (para. (8) ([Yearbook of the International Law Commission,
2001, vol. II (Part Two)],, para. 77)), and that “[i]t does not matter for this purpose whether the territorial
unit in question is a component unit of a federal State or a specific autonomous area, and it is
equally irrelevant whether the internal law of the State in question gives the federal parliament power
to compel the component unit to abide by the State’s international obligations. (para. (9) [ibid.]).[265] 48
[A/62/62, para. 31]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Técnicas Medioambientales Tecmed S.A. v. United Mexican States
In its 2003 award, the arbitral tribunal constituted to hear the Técnicas Medioambientales
Tecmed S.A. v. United Mexican States case referred to the text of article 4 finally
adopted by the International Law Commission in 2001, as well as to the commentary
thereto, in support of its finding that actions by the National Ecology Institute of Mexico,
an entity of the United Mexican States in charge of designing Mexican ecological and
environmental policy and of concentrating the issuance of all environmental regulations
and standards, were attributable to Mexico.[266] 49
[A/62/62, para. 32]
International arbitral tribunal
Dispute concerning Access to Information under Article 9 of the OSPAR Convention (Ireland
v. United Kingdom)
In its 2003 final award, the arbitral tribunal established to resolve the dispute between
Ireland and the United Kingdom concerning access to information under article 9 of the
OSPAR Convention explained that its proposed interpretation of article 9(1) of the Convention
was “consistent with contemporary principles of State responsibility”, and in partained
“by (i) a Party at the federal level, as set out in its Schedule to Annex I or III, [or] (ii) a state or
province, for two years after the date of entry into force of [NAFTA] … , or (iii) a local government”.
[264] 47 Ibid., p. 270, para. 166.
[265] 48 Ibid., p. 270, para. 166, footnote 161.
[266] 49 ICSID, Case No. ARB(AF)/00/2, Award, 29 May 2003, para. 120 (unofficial English translation
of the Spanish original).
Article 4 69
ticular with the principle according to which “[a] State is internationally responsible for
the acts of its organs”.[267] 50 It added that:
… this submission is confirmed by articles 4 and 5 of the International Law Commission draft articles
on the responsibility of States for internationally wrongful acts, providing for rules of attribution of
certain acts to States. On the international plane, acts of “competent authorities” are considered to be
attributable to the State as long as such authorities fall within the notion of state organs or entities that
are empowered to exercise elements of the government authority. As the International Court of Justice
stated in the LaGrand case, “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”.[268] 51
[A/62/62, para. 33]
International arbitral tribunal (under the ICSID Convention)
CMS Gas Transmission Company v. Argentine Republic
In its 2003 decision on objections to jurisdiction, the arbitral tribunal constituted to
hear the CMS Transmission Company v. Argentina case stated, with reference to article 4
as finally adopted by the International Law Commission in 2001:
Insofar as the international liability of Argentina under the Treaty is concerned, it also does not matter
whether some actions were taken by the judiciary and others by an administrative agency, the executive
or the legislative branch of the State. Article 4 of the articles on State responsibility adopted by
the International Law Commission is abundantly clear on this point. Unless a specific reservation is
made in accordance with articles 19, 20 and 23 of the Vienna Convention on the Law of Treaties, the
responsibility of the State can be engaged and the fact that some actions were taken by the judiciary
and others by other State institutions does not necessarily make them separate disputes. No such reservation
took place in connection with the [relevant bilateral investment treaty].[269] 52
[A/62/62, para. 34]
Tokios Tokelés v. Ukraine
In its 2004 decision on jurisdiction, the arbitral tribunal constituted to hear the Tokios
Tokelés v. Ukraine case found evidence of extensive negotiations between the claimant and
municipal government authorities and, having recalled that “actions of municipal authorities
are attributable to the central government”, quoted in a footnote part of the text of
article 4 finally adopted by the International Law Commission in 2001.[270] 53
[A/62/62, para. 35]
[267] 50 Decision, 2 July 2003, para. 144, UNRIAA, vol. XXIII (Sales No. E/F.04.V.15), p. 100.
[268] 51 Ibid., para. 145 (footnotes omitted), p. 101.
[269] 52 ICSID, Case No. ARB/01/8, Decision on Objections to Jurisdiction, 17 July 2003, para. 108
(footnote omitted).
[270] 53 ICSID, Case No. ARB/02/18, Decision on Jurisdiction, 29 April 2004, para. 102 and footnote
113, reproduced in ICSID Review—Foreign Investment Law Journal, vol. 20, No. 1, 2005, p. 242. In
the original of the decision, the tribunal inadvertently indicates that the text it quotes, which is actually
taken from article 4, belongs to article 17 of the International Law Commission articles.
70 Article 4
World Trade Organization panel
United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services
In its 2004 report on United States—Measures Affecting the Cross-Border Supply of
Gambling and Betting Services, the panel considered that its finding according to which
the actions taken by the United States International Trade Commission (an agency of the
United States Government) pursuant to its responsibilities and powers were attributable to
the United States was supported by article 4 and its commentary, as finally adopted by the
International Law Commission in 2001, which it considered to be a “provision … not binding
as such, but … reflect[ing] customary principles of international law concerning attribution”:
6.128. This conclusion is supported by the International Law Commission articles on the responsibility
for States for internationally wrongful acts. Article 4, which is based on the principle of the unity of
the State, defines generally the circumstances in which certain conduct is attributable to a State. This
provision is not binding as such, but does reflect customary principles of international law concerning
attribution. As the International Law Commission points out in its commentary on the articles on State
responsibility, the rule that “the State is responsible for the conduct of its own organs, acting in that capacity,
has long been recognized in international judicial decisions”. As explained by the International Law
Commission, the term “State organ” is to be understood in the most general sense. It extends to organs
from any branch of the State, exercising legislative, executive, judicial or any other functions.[271] 54
[A/62/62, para. 36]
International arbitral tribunal
Eureko B.V. v. Republic of Poland
In its 2005 partial award, the arbitral tribunal constituted to hear the Eureko BV v.
Republic of Poland case, in considering whether actions undertaken by the Minister of the
State Treasury with respect to a shared purchase agreement with the claimant were attributable
to Poland, observed that “it is now a well settled rule that the conduct of any State organ
is considered an act of that State and that an organ includes any person or entity which
has that status in accordance with the internal law of that State”. It then quoted the text of
article 4 finally adopted by the International Law Commission in 2001, which it considered
“crystal clear” in that regard,[272] 55 and later referred to the commentary thereto.[273] 56
[A/62/62, para. 37]
International arbitral tribunal (under the ICSID Convention)
Noble Ventures, Inc. v. Romania
In its 2005 award, the arbitral tribunal constituted to hear the Noble Ventures, Inc. v.
Romania case, in determining whether the acts of a Romanian “institution of public interest”
(the State Ownership Fund, subsequently replaced by the Authority for Privatization
and Management of the State Ownership), which were alleged to have constituted violations
of the bilateral investment treaty at issue, were attributable to Romania, referred to
[271] 54 WTO, Panel Report, WT/DS285/R, 10 November 2004, para. 6.128 (footnotes omitted).
[272] 55 See footnote [55] 11 above, paras. 127–128.
[273] 56 Ibid., paras. 130–131. The arbitral tribunal referred in particular to paragraphs (6) and (7) of the
commentary to article 4 (Yearbook of the International Law Commission, 2001, vol. II (Part Two), para. 77).
Article 4 71
article 4 finally adopted by the International Law Commission in 2001, which it considered
to lay down a “well-established rule”:
As States are juridical persons, one always has to raise the question whether acts committed by natural
persons who are allegedly in violation of international law are attributable to a State. The bilateral investment
treaty does not provide any answer to this question. The rules of attribution can only be found in
general international law which supplements the bilateral investment treaty in this respect. Regarding
general international law on international responsibility, reference can be made to the draft articles on
State responsibility as adopted on second reading in 2001 by the International Law Commission and as
commended to the attention of Governments by the United Nations General Assembly in res. 56/83 of
12 December 2001 … While those draft articles are not binding, they are widely regarded as a codification
of customary international law. The 2001 International Law Commission draft provides a whole set
of rules concerning attribution. Article 4 of the 2001 International Law Commission draft lays down the
well-established rule that the conduct of any State organ, being understood as including any person or
entity which has that status in accordance with the internal law of the State, shall be considered an act
of that State under international law. This rule concerns attribution of acts of so-called de jure organs
which have been expressly entitled to act for the State within the limits of their competence.[274] 57
Later in the award, in response to an argument by the respondent that a distinction should
be drawn between attribution of governmental and commercial conduct, the latter not
being attributable, the arbitral tribunal observed, with reference to the commentary of the
International Law Commission to article 4, that
… in the context of responsibility, it is difficult to see why commercial acts, so called acta iure gestionis,
should by definition not be attributable while governmental acts, so call acta iure imperii,
should be attributable. The International Law Commission draft does not maintain or support such
a distinction. Apart from the fact that there is no reason why one should not regard commercial
acts as being in principle also attributable, it is difficult to define whether a particular act is governmental.
There is a widespread consensus in international law, as in particular expressed in the
discussions in the International Law Commission regarding attribution, that there is no common
understanding in international law of what constitutes a governmental or public act. Otherwise
there would not be a need for specified rules such as those enunciated by the International law Commission
in its draft articles, according to which, in principle, a certain factual link between the State
and the actor is required in order to attribute to the State acts of that actor.[275] 58
[A/62/62, para. 38]
Jan de Nul NV and Dredging International NV v. Arab Republic of Egypt
In its 2006 decision on jurisdiction, the arbitral tribunal constituted to hear the Jan
de Nul NV and Dredging International NV v. Arab Republic of Egypt case explained that,
when assessing the merits of the dispute, it would rule on the issue of attribution under
international law, especially by reference to the articles finally adopted by the International
Law Commission in 2001 (more particularly articles 4 and 5), which it considered “a codification
of customary international law”. The tribunal briefly described the contents of the
two provisions it intended to apply.[276] 59
[A/62/62, para. 39]
[274] 57 ICSID, Case No. ARB/01/11, Award, 12 October 2005, para. 69.
[275] 58 Ibid., para. 82.
[276] 59 ICSID, Case No. ARB/04/13, Decision on Jurisdiction, 16 June 2006, para. 89.
72 Article 4
World Trade Organization panel
European Communities—Selected Customs Matters
In its 2006 report on European Communities—Selected Customs Matters, the panel
noted that the European Communities had invoked article 4, paragraph 1, finally adopted
by the International Law Commission in 2001 as a statement of “international law”, to
contradict the United States allegation according to which only executive authorities, but
not judicial authorities, of the member States should be recognized as authorities of the
Community when implementing community law for the purposes of complying with article
X.3(b) of GATT 1994.[277] 60 According to the European Communities (EC):
4.706. The US arguments are … incompatible with principles of general international law regarding
responsibility for wrongful acts. In this regard, the EC would refer to article 4(1) of the articles on responsibility
of States for internationally wrongful acts elaborated by the International Law Commission.
4.707. It follows clearly from this provision that, when it comes to the acts of a State under international
law, there is no distinction between acts of the legislative, executive and judicial organs. For
this very same reason, it would seem unjustifiable to consider that only the executive authorities
of the member States, but not the judicial authorities of the member States, can act as EC organs.
4.708. Similarly, it follows from the International Law Commission’s articles on state responsibility
that the responsibility for internationally wrongful acts extends not only to organs of the central
government, but also to organs of territorial units. Accordingly, the EC has never contested that it
is responsible in international law for the compliance by EC member States with the obligations of
the EC under the WTO Agreements.[278] 61
The panel found that “the European Communities may comply with its obligations
under Article X.3(b) of GATT 1994 through organs of its member States”, on the basis of
an interpretation of the terms of that provision. It further observed, in a footnote, that this
finding also followed article 4 of the International Law Commission articles.[279] 62
[A/62/62, para. 40]
[277] 60 Under that provision:
Each contracting party shall maintain, or institute as soon as practicable, judicial, arbitral
or administrative tribunals or procedures for the purpose, inter alia, of the prompt review
and correction of administrative action relating to customs matters. Such tribunals or procedures
shall be independent of the agencies entrusted with administrative enforcement and
their decisions shall be implemented by, and shall govern the practice of, such agencies unless
an appeal is lodged with a court or tribunal of superior jurisdiction within the time prescribed
for appeals to be lodged by importers; Provided that the central administration of such agency
may take steps to obtain a review of the matter in another proceeding if there is good cause to
believe that the decision is inconsistent with established principles of law or the actual facts.
[278] 61 WTO, Panel Report, WT/DS315/R, 16 June 2006, paras. 4.706–4.708.
[279] 62 Ibid., para. 7.552 and footnote 932. This aspect of the panel report was not reversed on appeals:
see WTO, Appellate Body, European Communities—Selected Customs Matters, WT/DS315/AB/R,
13 November 2006.
Article 4 73
International arbitral tribunal (under the ICSID Convention)
Azurix Corp. v. Argentina Republic
In its 2006 award, the arbitral tribunal constituted to hear the Azurix Corp. v. Argentina
case observed that the claimant, in arguing that Argentina was responsible for the actions of the
Argentine Province of Buenos Aires under the 1991 Treaty Concerning the Reciprocal Encouragement
and Protection of Investment between the Argentine Republic and the United States
of America and customary international law, had referred in particular to “the responsibility of
the State for acts of its organs under customary international law and [had] cite[d], as best evidence,
articles 4 and 7 of the draft articles on responsibility of States for internationally wrongful
acts of the International Law Commission”.[280] 63 The tribunal considered, in this regard, that
[t]he responsibility of States for acts of its organs and political subdivisions is well accepted under international
law. The draft articles, as pointed out by the Claimant, are the best evidence of such acceptance and
as such have been often referred to by international arbitral tribunals in investor-State arbitration.[281] 64
[A/62/62, para. 41]
International arbitral tribunal (under UNCITRAL Rules)
Grand River Enterprises Six Nations Ltd. et al. v. United States
In its 2006 decision on objections to jurisdiction, the arbitral tribunal constituted
in accordance with chapter 11 of NAFTA under the UNCITRAL rules to hear the Grand
River Enterprises Six Nations Ltd. et al. v. United States case, having noted that the defendant
acknowledged its responsibility under NAFTA for actions taken by states of the United
States, referred in a footnote, inter alia, to the text and commentary to article 4 finally
adopted by the International Law Commission in 2001.[282] 65
[A/62/62, para. 42]
International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro)
In its 2007 judgment in the Genocide case, the Court, in examining the question
whether the massacres committed at Srebrenica (which it had found to be a crime of genocide
within the meaning of articles II and III, paragraph (a), of the Genocide Convention)
were attributable, in whole or in part, to the Respondent, considered the question whether
those acts had been perpetrated by organs of the latter. The Court referred to article 4
finally adopted by the International Law Commission in 2001, stating that this question
[280] 63 ICSID, Case No. ARB/01/12, Award, 14 July 2006, para. 46.
[281] 64 Ibid., para. 50.
[282] 65 NAFTA, Decision on Objections to Jurisdiction, 20 July 2006, para. 1, footnote 1. The arbitral
tribunal referred in particular to paragraph (4) of the commentary to article 4 (Yearbook of the International
Law Commission, 2001, vol. II (Part Two), para. 77).
74 Article 4
relates to the well-established rule, one of the cornerstones of the law of State responsibility, that the
conduct of any State organ is to be considered an act of the State under international law, and therefore
gives rise to the responsibility of the State if it constitutes a breach of an international obligation
of the State. This rule, which is one of customary international law, is reflected in Article 4 of the ILC
Articles on State Responsibility … . [283] 3
The Court thereafter applied this rule to the facts of the case. In that context, it observed
inter alia that “[t]he expression ‘State organ’, as used in customary international law and in
Article 4 of the ILC Articles, applies to one or other of the individual or collective entities
which make up the organization of the State and act on its behalf (cf. ILC commentary to
Art. 4, para. (1))”.[284] 4 The Court concluded that “the acts of genocide at Srebrenica cannot be
attributed to the Respondent as having been committed by its organs or by persons or entities
wholly dependent upon it, and thus do not on this basis entail the Respondent’s international
responsibility”[285] 5 and it went on to consider the question of attribution of the Srebrenica
genocide to the Respondent on the basis of direction or control (see [pages 144–146] below).
[A/62/62/Add.1, para. 2]
World Trade Organization panel
Brazil—Measures Affecting Imports of Retreaded Tyres
In its 2007 report, the panel in the Brazil—Measures Affecting Imports of Retreaded Tyres
case, cited, in a footnote, article 4 of the State responsibility articles, in support of its finding
that Brazilian domestic court rulings did not exonerate Brazil from its obligation to comply
with the requirements of article XX of the General Agreement on Tariffs and Trade 1994.[286] 10
[A/65/76, para. 15]
World Trade Organization Appellate Body
United States—Measures Relating to Zeroing and Sunset Reviews, recourse to Article 21.5
of the DSU by Japan
In its 2009 report in the United States—Measures Relating to Zeroing and Sunset
Reviews case, the WTO Appellate Body referred to article 4 of the State responsibility
articles in support of its assertion that:
[i]rrespective of whether an act is defined as “ministerial” or otherwise under United States law, and
irrespective of any discretion that the authority issuing such instructions or taking such action may
have, the United States, as a Member of the WTO, is responsible for those acts in accordance with
the covered agreements and international law.[287] 11
[A/65/76, para. 16]
[283] 3 [ICJ, Judgment, I.C.J. Reports 2007, p. 43], para. 385.
[284] 4 Ibid., para. 388.
[285] 5 Ibid., para. 395.
[286] 10 WTO, Panel Report, WT/DS332/R, 12 June 2007, para. 7.305, footnote 1480.
[287] 11 WTO, Appellate Body, Case No. AB-2009–2, Report of the Appellate Body, 18 August 2009,
para. 183 and footnote 466.
Article 4 75
International arbitral tribunal (under the ICSID Convention)
Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia
The arbitral tribunal constituted to hear the Ioannis Kardassopoulos and Ron Fuchs v.
The Republic of Georgia case determined that, although the tribunal invoked article 7 during
the jurisdictional phase, articles 4, 5 and 11 were equally applicable to the dispute.[288] 36 The
tribunal concluded that “there can be no real question in these arbitrations as to the attribution
of any acts or omissions on the part of [the relevant entities] to the Respondent”.[289] 37
[A/68/72, para. 32]
Ad hoc committee (under the ICSID Convention)
Helnan International Hotels A/S v. Arab Republic of Egypt
The ad hoc committee constituted to hear the annulment proceeding in the case of
Helnan International Hotels A/S v. Arab Republic of Egypt referred to article 4 of the State
responsibility articles in finding that: “the decision of a Government Minister, taken at the
end of an administrative process … is one for which the State is undoubtedly responsible at
international law, in the event that it breaches the international obligations of the State”.[290] 38
[A/68/72, para. 33]
[International arbitral tribunal (under the ICSID Convention)
Gustav F W Hamester GmbH & Co KG v. Republic of Ghana
In its award, the arbitral tribunal constituted to hear the Gustav F W Hamester GmbH
& Co KG v. Republic of Ghana case indicated that “[i]n order for an act to be attributed
to a State, it must have a close link to the State”.[291] 56 Referring to articles 4, 5, and 8, the
tribunal stated that such a link could result when
the person performing the act is part of the State’s organic structure (Article 4); or is utilising the
State’s specific governmental powers to perform such act, even if it is a separate entity (Article 5); or is
acting under the effective control … of the State, even if it is a private or public party (Article 8).[292] 57
[See A/68/72, footnote 35 and para. 45]]
Alpha Projektholding GmbH v. Ukraine
The arbitral tribunal in Alpha Projektholding GmbH v. Ukraine referred to articles 4,
5 and 8 as part of its analysis of the question of attribution. The tribunal concluded that
the conduct of a “State organ … is clearly attributable to the State under Article 4(1) of the
[288] 36 ICSID, Case Nos. ARB/05/18 and ARB/07/15, Award, 3 March 2010, para. 274 (quoting
articles 4, 5 and 11).
[289] 37 Ibid., paras. 274 and 280.
[290] 38 See footnote [163] 28 above, para. 51, footnote 47.
[291] [56 See footnote [105] 20 above, para. 172.]
[292] [57 Ibid.]
76 Article 4
ILC Articles”.[293] 39 The tribunal also relied upon the commentary to article 4 in finding
that whether or not a State organ’s conduct “was based on commercial or other reasons is
irrelevant with respect to the question of attribution”.[294] 40
[A/68/72, para. 34]
[World Trade Organization Appellate Body
United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products
from China
In its report in the United States—Definitive Anti-Dumping and Countervailing Duties on
Certain Products from China case, the Appellate Body considered whether the rules of attribution
contained in the State responsibility articles are “relevant rules of international law applicable
in the relations between the parties”.[295] 64 The Appellate Body held that, “[t]o the extent
that Articles 4, 5 and 8 of the ILC Articles concern[ed] the same subject matter as [a provision]
of the SCM Agreement, they would be ‘relevant’ in the sense of the Vienna Convention [on the
Law of Treaties]”.[296] 65 The Appellate Body indicated that both the State responsibility articles
and the SCM Agreement “set out rules relating to the question of attribution of conduct to a
State”, though it noted “certain differences” in their respective approach to attribution.[297] 66
Concerning whether the State responsibility articles are “rules of international law
… applicable in the relations between the parties”, the Appellate Body noted that “Articles
4, 5 and 8 are not binding by virtue of being part of an international treaty. However,
insofar as they reflect customary international law or general principles of law, these Articles
are applicable in the relations between the parties”.[298] 67
[See A/68/72, paras. 50–51]]
International arbitral tribunal (under UNCITRAL Rules)
Sergei Paushok et al. v. The Government of Mongolia
The arbitral tribunal in the Sergei Paushok et al. v. The Government of Mongolia case
referred to articles 4, 5 and 9 as constituting “international law rules of attribution” applicable
to the dispute “which are generally considered as representing current customary international
law”.[299] 41 While noting that the State responsibility articles “do not contain a definition
[293] 39 ICSID, Case No. ARB/07/16, Award, 8 November 2010, para. 401.
[294] 40 Ibid., para. 402.
[295] [64 See footnote [13] 11 above, paras. 307 et seq. (quoting the Vienna Convention on the Law
of Treaties, 1963, art. 31(3)(c)).]
[296] [65 Ibid., para. 308.]
[297] [66 Ibid., para. 309.]
[298] [67 Ibid., para. 308; see below the text accompanying footnote [2156] 203 for discussion of the
Appellate Body’s consideration of whether articles 4, 5 and 8 of the State responsibility articles would
“be superseded by … the SCM Agreement as lex specialis regarding attribution pursuant to Article 55
of the ILC Articles”; ibid., para. 314.]
[299] 41 Award on jurisdiction and liability, 28 April 2011, paras. 576 and 577.
Article 4 77
of what constitutes an organ of the State”,[300] 42 the tribunal pointed to the commentary to article 4 which indicates the activities covered by the article’s reference to “State organ”.[301] 43
The tribunal also indicated that the distinction between articles 4 and 5 was “of particular relevance in the determination of potential liability of the State”.[302] 44
[A/68/72, paras. 35 and 36]
[White Industries Australia Limited v. The Republic of India
In its award, the arbitral tribunal in White Industries Australia Limited v. The Republic of India referred to articles 4, 5 and 8 as part of its analysis of the question of attribution. The tribunal found that the claimant properly conceded that it was not relying on articles 4 or 5 as the entity in question was “patently[] not an organ of the state within the meaning of Article 4, nor [did] it exercise elements of Governmental authority within the meaning of Article 5.”[303] 87
[See A/68/72, footnote 35 and para. 67]]
Permanent Court of Arbitration
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador referred to the State responsibility articles and recalled that, “as a matter of international law, a State may be responsible for the conduct of its organs, including its judicial organs … ”.[304] 45
[A/68/72, para. 37]
International arbitral tribunal (under UNCITRAL Rules)
Claimants v. Slovak Republic
The arbitral tribunal in Claimants v. Slovak Republic, indicated that “there are three possible bases for attribution of wrongful acts to a State. They are found in Articles 4, 5 and 8 of the Articles on State Responsibility of the International Law Commission … ”.[305] 46 Upon consideration of article 4, Slovak law and the relevant factual circumstances, the tribunal determined that certain entities and individuals were State organs, “responsible for the actions they have performed in their official capacity in accordance with Article 4 of the ILC Articles”,[306] 47 while others were not.[307] 48
[A/68/72, para. 38]
[300] 42 Ibid., para. 581.
[301] 43 Ibid., para. 582.
[302] 44 Ibid., para. 580.
[303] [87 Final Award, 30 November 2011, para. 8.1.2.]
[304] 45 PCA, Case No. 2009–23, First Interim Award on Interim Measures, 25 January 2012, para. [2.10.2].
[305] 46 Final Award, 23 April 2012, paras. 150–151.
[306] 47 Ibid., para. 152.
[307] 48 Ibid., paras. 155 and 163.
78 Article 4
Permanent Court of Arbitration (under UNCITRAL Rules)
Ulysseas, Inc. v. The Republic of Ecuador
The arbitral tribunal constituted to hear the Ulysseas, Inc. v. The Republic of Ecuador case
relied upon article 4 in determining that certain entities were not organs of the Ecuadorian State,
notwithstanding that they were “part of the Ecuadorian public sector and [were] subject to a
system of controls by the State in view of the public interests involved in their activity … ”.[308] 49
[A/68/72, para. 39]
International arbitral tribunal (under the ICSID Convention)
Occidental Petroleum Corporation and Occidental Exploration and Production Company
v. The Republic of Ecuador
The arbitral tribunal in Occidental Petroleum Corporation and Occidental Exploration
and Production Company v. The Republic of Ecuador noted that, “[u]nder international law, a
State can be found to have discriminated either by law, regulation or decree. Article 4.1 of the
Articles on Responsibility of States for Internationally Wrongful Acts … is controlling”.[309] 50
[A/68/72, para. 40]
[Bosh International, Inc. v. B & P Ltd. Foreign Investments Enterprise
In its 2012 award, the arbitral tribunal constituted to hear the Bosh International, Inc.
v. B & P Ltd. Foreign Investments Enterprise case referred to article 4 in its analysis of a claim
brought under the relevant bilateral investment treaty umbrella clause. The tribunal concluded
that the term “Party”, as used in the umbrella clause, referred “to any situation where the Party
is acting qua State”, namely “where the conduct of entities can be attributed to the Parties
(under, for instance, Articles 4, 5 or 8 of the ILC Articles on State Responsibility) … ”.[310] 75
The tribunal also stated, in dictum, that it “could not agree that the [university in
question] is a ‘State organ’ within the meaning of Article 4 of the ILC Articles”.[311] 77
[See A/68/72, footnote 35 and para. 60]]
Inter-American Court of Human Rights
Castillo González et al. v. Venezuela
In its judgment in Castillo González et al. v. Venezuela, the Inter-American Court of
Human Rights indicated that articles 2 and 4 constituted part of “the basic principle of the
law on international State responsibility”.[312] 51
[308] 49 PCA, Final Award, 12 June 2012, paras. 135 and 126.
[309] 50 ICSID, Case No. ARB/06/11, Award, 5 October 2012, para. 559.
[310] [75 ICSID, Case No. ARB/08/11, Award, 25 October 2012, para. 246.]
[311] [77 Ibid., para. 163. For additional discussion regarding the tribunal’s treatment of the University
and the question of attribution, see below under article 5.]
[312] 51 See footnote [108] 51 (quoting articles 2 and 4 of the State responsibility articles).
Article 4 79
The Court also referred to article 4 in finding that “it is for the Court to determine
whether or not the actions of a State organ, such as those in charge of the investigations,
constitute a wrongful international act … ”.[313] 52
[A/68/72, paras. 41–42]
International arbitral tribunal (under the ICSID Convention)
Electrabel S.A. v. The Republic of Hungary
The arbitral tribunal constituted to hear the Electrabel S.A. v. The Republic of Hungary
case determined that “[t]here is no question that the acts of the Hungarian Parliament are
attributable to the Hungarian State, in accordance with Article 4 of the ILC Articles … ”.[314] 53
[A/68/72, para. 43]
[Teinver S.A., et al. v. The Argentine Republic
The arbitral tribunal in Teinver S.A., et al. v. The Argentine Republic, in its 2012 decision
on jurisdiction, referred to articles 4, 5 and 8 as part of its consideration of whether
the acts of certain labour unions were attributable to the Argentine Republic. As a result of
the “fact-intensive nature of [the claimants’] allegations”, the tribunal decided to postpone
adjudication of the attribution issue until the merits phase.[315] 99 Nonetheless, the tribunal
accepted the assertion of both parties “that article 8, and not articles 4 and 5, would be
relevant to the analysis of the unions’ conduct … ”.[316] 100
[See A/68/72, footnote 35 and para. 73]]
Vannessa Ventures Ltd. v. The Bolivarian Republic of Venezuela
In its January 2013 award, the arbitral tribunal in Vannessa Ventures Ltd. v. The Bolivarian
Republic of Venezuela cited the commentary to article 4 in support of the assertion
that “[i]t is well established that, in order to amount to an expropriation under international
law, it is necessary that the conduct of the State should go beyond that which an
ordinary contracting party could adopt”.[317] 54
[A/68/72, para. 44]
[313] 52 Ibid., para. 160, footnote 94 (citing article 4.1 of the State responsibility articles) (internal
footnote omitted).
[314] 53 ICSID, Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability,
30 November 2012, para. 7.89. For an extended account of the tribunal’s consideration of the State
responsibility articles and the question of attribution under international law, see below p. 150.
[315] [99 ICSID, Case No. ARB/09/1, Decision on Jurisdiction, 21 December 2012, para. 274.]
[316] [100 Ibid., para. 275.]
[317] 54 ICSID (Additional Facility), Case No. ARB/(AF)/04/6, Award, 16 January 2013, para. 209,
note 209 (citing para. (6) of the commentary to article 4).
80 Article 4
Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador
In Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador,
the arbitral tribunal confirmed and restated its Third Order on Interim Measures,[318] 44
providing that
as a matter of international law, a State may be responsible for the conduct of its organs, including its
judicial organs, as expressed in Chapter II of Part One [of the State responsibility articles] … If it were
established that any judgment made by an Ecuadorian court in the Lago Agrio Case was a breach of
an obligation by the Respondent owed to the Claimants as a matter of international law, the Tribunal
records that any loss arising from the enforcement of such judgment (within and without Ecuador)
may be losses for which the Respondent would be responsible to the Claimants under international law,
as expressed in Part Two of the International Law Commission’s Articles on State Responsibility.[319] 45
[A/71/80, para. 38]
International arbitral tribunal (under the ICSID Convention)
Mr Franck Charles Arif v. Republic of Moldova
The arbitral tribunal in Mr Franck Charles Arif v. Republic of Moldova found
that as a matter of principle, in accordance with Article 4 of the ILC Articles on State Responsibility,
court decisions can engage a State’s responsibility, including for unlawful expropriation, without there
being any requirement to exhaust local remedies (unless claims for denial of justice have been made).[320] 46
[A/71/80, para. 39]
The Rompetrol Group N.V. v. Romania
The arbitral tribunal in The Rompetrol Group N.V. v. Romania referred to articles 4 and 7
when affirming that “there was no dispute that all of the authorities and agencies in question
were at all material times organs of the Romanian State, and that their conduct was accordingly
attributable to the Romanian State for the purposes of the law of State responsibility”.[321] 47
[A/71/80, para. 40]
TECO Guatemala Holdings LLC v. Republic of Guatemala
In TECO Guatemala Holdings LLC v. Republic of Guatemala, the arbitral tribunal
acknowledged, citing the text of article 4, that “[t]he conduct of a state organ such as the
CNEE [National Commission of Electric Energy] is indeed attributable to the State”.[322] 48
[A/71/80, para. 41]
[318] 44 PCA, Case No. 2009–23, Third Order on Interim Measures, 28 January 2011, paras. 2–3.
[319] 45 PCA, Case No. 2009–23, Fourth Interim Award on Interim Measures, 7 February 2013,
paras. 55 and 77.
[320] 46 ICSID, Case No. ARB/11/23, Award, 8 April 2013, para. 347.
[321] 47 See footnote 17 5 above, para. 173, footnote 298.
[322] 48 ICSID, Case No. ARB/10/23, Award, 19 December 2013, para. 479.
Article 4 81
European Court of Human Rights
Jones and Others v. the United Kingdom
In Jones and Others v. the United Kingdom, the European Court of Human Rights referred to article 4 as relevant international law[323] 49 and stated that the State responsibility articles “for their part, provide for attribution of acts to a State, on the basis that they were carried out … by organs of the State as defined in Article 4”.[324] 50
[A/71/80, para. 42]
International arbitral tribunal (under the ICSID Convention)
Renee Rose Levy de Levi v. Republic of Peru
The arbitral tribunal in Renee Rose Levy de Levi v. Republic of Peru considered it “important to reproduce Article 4(1) of the International Law Commission’s draft articles on Responsibility of States for Internationally Wrongful Acts”.[325] 51
[A/71/80, para. 43]
Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey
In Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey, the arbitral tribunal quoted article 4, paragraph 2, which establishes that an “organ includes any person or entity which has that status in accordance with the internal law of the State”.[326] 52 The tribunal accepted the submission of the respondent “that there is no ‘quasi-state’ organ for the purposes of Art. 4”.[327] 53
[A/71/80, para. 44]
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
In Hulley Enterprises Limited (Cyprus) v. The Russian Federation, the arbitral tribunal stated that the respondent’s argument that the acts of a State organ were not in breach of the Energy Charter Treaty because it was acting only in a commercial capacity “runs up … against the ILC Articles on State Responsibility”. With reference to the text of article 4, the arbitral tribunal further explained that “[t]he commentary to this article specifies that ‘[i]t is irrelevant for the purposes of attribution that the conduct of a State organ may be classified as “commercial” or as “acta iure gestionis””.[328] 54
[A/71/80, para. 45]
[323] 49 ECHR, Fourth Section, Application Nos. 34356/06 and 40528/06, Judgment, 14 January 2014, para. 107.
[324] 50 Ibid., para. 207.
[325] 51 ICSID, Case No. ARB/10/17, Award, 26 February 2014, para. 157.
[326] 52 See footnote [210] 40 and [128] 16 above, para. 285 (quoting article 4).
[327] 53 Ibid., para. 288.
[328] 54 See footnote [19] 7 above, para. 1479 (quoting para. (6) of the commentary to article 4).
82 Article 4
African Court on Human and Peoples’ Rights
Lohé Issa Konaté v. Burkina Faso
The African Court on Human and Peoples’ Rights in Lohé Issa Konaté v. Burkina
Faso relied on article 4 as support for the finding that “the conduct of the Burkinabé courts
fall[s] squarely on the Respondent State”.[329] 55
[A/71/80, para. 46]
European Court of Human Rights
Čikanović v. Croatia
In Čikanović v. Croatia, the European Court of Human Rights listed article 4 as relevant
international law.[330] 56 In stating that “[m]unicipalities are public-law entities which
exercise public authority and whose acts or failures to act, notwithstanding the extent
of their autonomy vis-à-vis the central organs, can engage the responsibility of the State
under the Convention”, the Court referred to the State responsibility articles, in particular
article 4, as reflecting customary international law.[331] 57
[A/71/80, para. 47]
International arbitral tribunal (under the ICSID Convention)
Mr Hassan Awdi, Enterprise Business Consultants, Inc. and Alfa El Corporation v. Romania
The arbitral tribunal in Mr Hassan Awdi, Enterprise Business Consultants, Inc. and
Alfa El Corporation v. Romania determined that “AVAS’ [Authority for State Assets Recovery]
acts under the Contract are attributable to the State under international law based on
Article 4” of the State responsibility articles.[332] 58
[A/71/80, para. 48]
Permanent Court of Arbitration (under UNCITRAL Rules)
William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and
Bilcon of Delaware Inc. v. Government of Canada
In William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton
and Bilcon of Delaware Inc. v. Government of Canada, the arbitral tribunal indicated with
regard to articles 4 and 5 that
[329] 55 African Court on Human and Peoples’ Rights, Application No. 004/2013, Judgment,
5 December 2014, para. 170, footnote 36 (quoting article 4).
[330] 56 ECHR, First Section, Application No. 27630/07, Judgment, 5 February 2015, para. 37.
[331] 57 Ibid., para. 53.
[332] 58 ICSID, Case No. ARB/10/13, Award, 2 March 2015, para. 323.
Article 4 83
the ILC Articles quoted here are considered as statements of customary international law on the
question of attribution for purposes of asserting the responsibility of a State towards another State,
which are applicable by analogy to the responsibility of States towards private parties.[333] 59
The tribunal observed that “[a] body that exercises impartial judgment, however, can well
be an organ of the state; Article 4 of the ILC Articles, just quoted, specifically includes
those exercising ‘judicial’ functions”.[334] 60 The tribunal further quoted the commentary to
article 4 to explain that “a state cannot avoid responsibility for the conduct of a body which
does in truth act as one of its organs merely by denying it that status under its own law”.[335] 61
[A/71/80, para. 49]
International arbitral tribunal (under the ICSID Convention)
Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The
Argentine Republic
The arbitral tribunal in Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi
Universal S.A. v. The Argentine Republic cited article 4 of the State responsibility articles
in concluding that the relevant wrongful acts, as “actions done by state organs, were
clearly attributable to the Argentine State”.[336] 62
[A/71/80, para. 50]
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal stated
that “[i]t is clear under Article 4 of the ILC Articles and the Commentary thereon that
organs of State include, for the purposes of attribution, the President, Ministers, provincial
government, legislature, Central Bank, defence forces and the police, inter alia, as argued by
the Claimants”, and that “[r]esponsibility for the actions of these State organs is unlimited
provided the act is performed in an official capacity (i.e. it includes ultra vires acts performed
in an official capacity). Only acts performed in a purely private capacity would not
be attributable”.[337] 63 The tribunal also noted that “indirect liability for the acts of others can
also occur under Article 4—for example, the failure to stop someone doing something that
violated an obligation. It does not matter that a third party actually undertook the action, if
a State organ (such as the police) was aware of it and did nothing to prevent it”.[338] 64
[A/71/80, para. 51]
[333] 59 PCA, Case No. 2009–04, Award on Jurisdiction and Liability, 17 March 2015, paras. 306–307.
[334] 60 Ibid., para. 308.
[335] 61 Ibid., para. 315 (quoting para. (11) of the commentary to article 4).
[336] 62 See footnote [63] 16 above, para. 25, footnote 14.
[337] 63 See footnote [114] 24 above, paras. 443–444.
[338] 64 Ibid., para. 445.
84 Article 4
Inter-American Court of Human Rights
Case of Ruano Torres et. Al. v. El Salvador
In the Case of Ruano Torres et. Al. v. El Salvador, the Inter-American Court of Human
Rights referred to the State responsibility articles in support of its assertion that
en el diseño institucional de El Salvador, la Unidad de Defensoría Pública se inserta dentro de la
Procuraduría General de la República y puede ser asimilada a un órgano del Estado, por lo que su
conducta debe ser considerada como un acto del Estado en el sentido que le otorga el proyecto de
artículos sobre responsabilidad del Estado por hechos internacionalmente ilícitos realizados por
auxiliares de la administración de justicia.[339] 65
[A/71/80, para. 52]
International arbitral tribunal (under the ICSID Convention)
Adel A Hamadi Al Tamimi v. Sultanate of Oman
The arbitral tribunal in Adel A Hamadi Al Tamimi v. Sultanate of Oman referenced
article 4 as support for the assertion that the attribution of the conduct of State organs to
the State is “broadly supported in international law”.[340] 66
[A/71/80, para. 53]
Electrabel S.A. v. Republic of Hungary
In Electrabel S.A. v. Republic of Hungary, the arbitral tribunal referred to article 4
in finding that there was “no question that the acts of the Hungarian Parliament [were]
attributable to the Hungarian State”.[341] 67
[A/71/80, para. 54]
Tenaris S.A. and Talta—Trading e Marketing Sociedade Unipessoal Lda v. Bolivarian
Republic of Venezuela
In Tenaris S.A. and Talta—Trading e Marketing Sociedade Unipessoal Lda v. Bolivarian
Republic of Venezuela, the arbitral tribunal, “[o]n the basis of all the materials available
to it … concludes that CVG FMO [Ferrominera del Orinoco] is not an organ of the State
for the purposes of ILC Article 4 of the ILC Articles”.[342] 68
[A/71/80, para. 55]
Joseph Houben v. Republic of Burundi
In Joseph Houben v. Republic of Burundi, the arbitral tribunal referred to article 4 of
the State responsibility articles as a reflection of customary international law when finding
[339] 65 IACHR, Judgment, 5 October 2015, para. 160.
[340] 66 ICSID, Case No. ARB/11/33, Award, 3 November 2015, para. 344, footnote 706.
[341] 67 See footnote [22] 10 above, para. 7.89.
[342] 68 ICSID, Case No. ARB/12/23, Award, 29 January 2016, paras. 412–413.
Article 4 85
that the Burundian authorities, who were aware of the damage on Claimant’s investment,
had not only failed to take the minimum measures necessary to protect this investment,
but had also directly contributed to the damage.[343] 33
[A/74/83, p. 10]
Tenaris S.A. and Talta-Trading e Marketing Sociedade Unipessoal LDA v. Bolivarian
Republic of Venezuela
In Tenaris S.A. and Talta-Trading e Marketing Sociedade Unipessoal LDA v. Bolivarian
Republic of Venezuela, the arbitral tribunal, agreeing with the respondent, “conclude[d]
that CVG FMO is not an organ of the State for the purposes of ILC Article 4…”.[344] 34
[A/74/83, p. 10]
Permanent Court of Arbitration (under UNCITRAL Rules)
Mesa Power Group v. Government of Canada
In Mesa Power Group v. Government of Canada, the arbitral tribunal found “no basis for
holding that the OPA [the Ontario Power Authority], Hydro One and the IESO [the Independent
Electricity System Operator] are organs of Canada under Article 4 of the ILC Articles”.[345] 35
[A/74/83, p. 10]
Caribbean Court of Justice
Maurice Tomlinson v. The State of Belize and The State of Trinidad and Tobago
In Maurice Tomlinson v. The State of Belize and The State of Trinidad and Tobago, the
Caribbean Court of Justice observed that:
Article 4 clarifies that an act of State may be constituted by conduct of the legislature, executive or the
judiciary. Accordingly, in deciding whether a State has breached its international obligation, it is necessary
to examine the relevant acts of the State, that is to say, the relevant State practice, to ascertain
whether those acts are inconsistent with the international obligation of the State. In this regard, acts of the
legislature constitute important indications of State practice and as such warrant close examination.[346] 36
[A/74/83, p. 10]
Permanent Court of Arbitration (under UNCITRAL Rules)
Mr. Kristian Almås and Mr. Geir Almås v. The Republic of Poland
The arbitral tribunal in Mr. Kristian Almås and Mr. Geir Almås v. The Republic of
Poland concluded, referring to article 4 and the commentary thereto, that “[i]n light of its
[343] 33 ICSID, Case No. ARB/13/7, Award, 12 January 2016, paras. 172 and 175.
[344] 34 ICSID, Case No. ARB/11/26, Award, 29 January 2016, para. 413.
[345] 35 PCA, Case No. 2012–17, Award, 24 March 2016, para. 345.
[346] 36 CCJ, Judgment, [2016] CCJ 1 (OJ), 10 June 2016, para. 22.
86 Article 4
autonomous management and financial status, ANR [Polish Agricultural Property Agency]
is not a de facto organ of the Polish State”.[347] 37
[A/74/83, p. 11]
CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom
Devas Mauritius Limited v. The Republic of India
In CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom
Devas Mauritius Limited v. The Republic of India, the arbitral tribunal concluded that
“when entering into the Agreement, Antrix was not acting as an organ of the Respondent,
whether under the provisions of Articles 4 and 5 of the ILC Articles”.[348] 38
[A/74/83, p. 11]
Flemingo Duty Free Shop Private Limited v. The Republic of Poland
The arbitral tribunal in Flemingo Duty Free Shop Private Limited v. The Republic of
Poland observed that the conduct of the Governor of Mazovia, the Polish courts, and the Polish
custom authorities as State organs “can trigger Poland’s international responsibility under
Article 4 of the ILC articles”.[349] 39 Holding that the Polish Airports State Enterprise (PPL)
is a de facto State organ,[350] 40 the tribunal explained that “Article 4(2) of the ILC Articles,
however, only provides that entities, which in accordance with the internal law of a State are
qualified as State-organs, are State organs for purpose of State responsibility; it does not per
se exclude entities which are not qualified as State organs under domestic law”.[351] 41
[A/74/83, p. 11]
Arbitration Institute of the Stockholm Chamber of Commerce
Busta and Busta v. The Czech Republic
In Busta and Busta v. The Czech Republic, the arbitral tribunal cited article 4 of the
State responsibility articles, noting that “it is undisputed between the Parties that a State’s
police authorities are organs of that State”.[352] 42
[A/74/83, p. 11]
International arbitral tribunal (under UNCITRAL Rules)
Eli Lilly and Company v. The Government of Canada
In Eli Lilly and Company v. The Government of Canada, the arbitral tribunal, following
a reference to article 4 of the State responsibility articles in the claimant’s arguments,[353] 43
[347] 37 PCA, Case No. 2015–13, Award, 27 June 2016, para. 213 (original emphasis).
[348] 38 PCA, Case No. 2013–09, Award on Jurisdiction and Merits, 25 July 2016, para. 281.
[349] 39 PCA, Award, IIC 883 (2016), 12 August 2016, para. 424.
[350] 40 Ibid., para. 435.
[351] 41 Ibid., para. 433.
[352] 42 SCC, Case No. V (2015/014), Final Award, 10 March 2017, para. 400.
[353] 43 ICSID (UNCITRAL), Case No. UNCT/14/2, Final Award, 16 March 2017, para. 175.
Article 4 87
stated that “the judiciary is an organ of the State. Judicial acts will therefore in principle be
attributable to the State by reference to uncontroversial principles of attribution under the
law of State responsibility”.[354] 44
[A/74/83, p. 11]
International arbitral tribunal (under the ICSID Convention)
Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The
Argentine Republic
The arbitral tribunal in Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos
del Sur S.A. v. The Argentine Republic observed that “the Parties agree that insofar as the
conduct of Mr. Cirielli as the Undersecretary of Air Transportation is concerned, the applicable
principles are contained in Article IV of the ILC Articles on State Responsibility”[355] 45
and concluded “that the only conduct of Mr. Cirielli that was attributable to Respondent was
his conduct while he was in office as Undersecretary of Air Transportation”.[356] 46
[A/74/83, p. 11]
Economic Community of West African States Court of Justice
Wing Commander Danladi A Kwasu v. Republic of Nigeria
In Wing Commander Danladi A Kwasu v. Republic of Nigeria, the Economic Community
of West African States Court of Justice referred to article 4 of the State responsibility
articles when stating that
[i]nternational Law admits the duty of due diligence which enjoins States to take action to prevent
violations of human rights of persons within its territory. This obligation cannot be derogated from
nor even by any purported agreement or consent. All actions of institutions or officials of States are
imputed to a State as its own conduct.[357] 47
[A/74/83, p. 12]
Benson Olua Okomba v. Republic of Benin
In Benson Olua Okomba v. Republic of Benin, the Economic Community of West African
States Court of Justice recalled its earlier decision Tidjane Konte v. Republic of Ghana, in
which it had relied on article 4 of the State responsibility articles, and concluded that “it is
well-established that the conduct of any organ of a state is regarded as act of that state”.[358] 48
[A/74/83, p. 12]
[354] 44 Ibid., para. 221.
[355] 45 ICSID, Case No. ARB/09/1, Award of the Tribunal, 21 July 2017, para. 702.
[356] 46 Ibid., para. 711.
[357] 47 ECOWAS, Court of Justice, Case No. ECW/CCJ/JUD/04/17, Judgment, 10 October 2017, p. 25.
[358] 48 ECOWAS, Court of Justice, Case No. ECW/CCJ/JUD/05/17, Judgment, 10 October 2017,
pp. 21–22, citing Judgment No. ECW/CCJ/JUD/11/14.
88 Article 4
Dorothy Chioma Njemanze and Others v. Federal Republic of Nigeria
In Dorothy Chioma Njemanze and Others v. Federal Republic of Nigeria, the Economic
Community of West African States Court of Justice recalled its earlier decision Tidjane
Konte v. Republic of Ghana, in which it had relied on article 4 of the State responsibility
articles, noting that “[a]part from any other acts or omission alleged on the part of the State
or its officials, failure to investigate such allegations [following formal complaints] itself
constitutes a breach of the States duty under International law”.[359] 49
[A/74/83, p. 12]
International arbitral tribunal (under the ICSID Convention)
UAB E Energija (Lithuania) v. Republic of Latvia
In UAB E Energija (Lithuania) v. Republic of Latvia, the arbitral tribunal citing article
4 and the commentary thereto, found that “[p]rovided that the acts in question are
performed in an official capacity, they are attributable to the State. There is no dispute
that the acts of the Municipality in this case were performed in an official capacity …
All of the actions of the Municipality at issue in this case are therefore attributable to the
Respondent”.[360] 50 Moreover, the arbitral tribunal noted that “the nature of the Regulator
as a State organ as understood under Article 4 of the ILC Articles may be inferred from
provisions of the Public Utilities Regulators Act”.[361] 51
[A/74/83, p. 12]
Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
The arbitral tribunal in Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
referred to articles 4, 5 and 8 of the State responsibility articles when stating that “[i]n order
for an act to be attributed to a State, it must have a close link to the State”.[362] 52
[A/74/83, p. 12]
Economic Community of West African States Court of Justice
Hembadoon Chia and Others v. Federal Republic of Nigeria and Others
In Hembadoon Chia and Others v. Federal Republic of Nigeria and Others, the Economic
Community of West African States Court of Justice explained that “[a] state cannot
take refuge on the notion that the act or omissions were not carried out by its agents
in their official capacity or that the organ or official acted contrary to orders, or exceed
its authority under internal law”.[363] 53 Referring to its earlier decision in Tidjane Konte v.
[359] 49 ECOWAS, Court of Justice, Case No. ECW/CCJ/JUD/08/17, Judgment, 12 October 2017,
pp. 39–40, citing Judgment No. ECW/CCJ/JUD/11/14.
[360] 50 ICSID, Case No. ARB/12/33, Award, 22 December 2017, paras. 800–801.
[361] 51 Ibid., para. 804.
[362] 52 ICSID, Case No. ARB/14/1, Award, 16 May 2018, para. 168.
[363] 53 ECOWAS, Court of Justice, Case No. ECW/CCJ/JUD/21/18, Judgment, 3 July 2018, p. 15,
citing Judgment No. ECW/CCJ/JUD/11/14.
Article 4 89
Republic of Ghana in which it had relied on article 4 of the State responsibility articles,
Community Court of Justice concluded that “the Nigerian Police and its officers are agents
of the 1st Defendant who carried out the alleged act in their official capacity. Therefore, the
1st Defendant being responsible for the acts of its agents is a proper party in this suit”.[364] 54
[A/74/83, p. 13]
International arbitral tribunal (under the ICSID Convention)
Georg Gavrilović and Gavrilović d.o.o. v. Republic of Croatia
The arbitral tribunal in Georg Gavrilović and Gavrilović d.o.o. v. Republic of Croatia
cited the text of article 4 of the State responsibility articles and the commentary thereto
when observing that
[the] conduct of an organ of the State in an apparently official capacity may be attributable to the State,
even if the organ exceeded its competence under internal law or in breach of the rules governing its operations.
The corollary of this is that acts that an organ commits in its purely private capacity are not attributable
to the State, even if it has used the means placed at its disposal by the State for the exercise of its
function.”[365] 55 The tribunal concluded that “[i]t follows from Article 4 of the ILC Articles that the actions
of the Bankruptcy Judge and the Bankruptcy Council are, at first sight, attributable to the Respondent.[366] 56
[A/74/83, p. 13]
Marfin Investment Group Holding S.A., Alexandros Bakatselos and Others v. Republic of Cyprus
The arbitral tribunal in Marfin Investment Group Holding S.A., Alexandros Bakatselos
and Others v. Republic of Cyprus recited the text of article 4 and
agree[d] with Claimants that such organs [of Cyprus] include: the President of the Republic, the
Attorney General and the Deputy Attorney General, the CBC, the CySEC, the Cypriot courts, the
Minister of Finance and the Cypriot Parliament. Consequently, any and all acts committed by these
organs are attributable to Respondent pursuant to ILC Article 4.[367] 57
[A/74/83, p. 13]
Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v.
The Republic of Ecuador found that “by the acts of its judicial branch, attributable to the
Respondent under Article 4 of the ILC Articles on State Responsibility, the Respondent
violated its obligations under Article II(3)(c) of the Treaty, thereby committing international
wrongs towards each of Chevron and TexPet”.[368] 58
[A/74/83, p. 13]
[364] 54 Ibid.
[365] 55 ICSID, Case No. ARB/12/39, Award, 26 July 2018, para. 801.
[366] 56 Ibid., para. 803.
[367] 57 ICSID, Case No. ARB/13/27, Award, 26 July 2018, paras. 670–671.
[368] 58 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, para. 8.8.
90 Article 4
International arbitral tribunal (under the ICSID Convention)
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
In Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, the tribunal stated that
[a]rticle 4 of the ILC Articles on State Responsibility confirms that, under international law, the conduct of a State’s executive branch shall be considered as an act of that State. Hence, the conduct of the Ministry of Petroleum, as with other Ministries and the Council of Ministers, is attributable to the Respondent.[369] 59
The tribunal further stated that
[a]ccording to the ILC Commentary to Article 4, ‘[t]he reference to a ‘State organ’ covers all the individual or collective entities which make up the organization of the State and act on its behalf.’ Of course, a State may become subject to obligations entered into on its behalf by entities other that organs of the State, but this is governed by general principles of the law of agency (not attribution).[370] 60
The tribunal concluded that the Egyptian General Petroleum Corporation and the Egyptian Natural Gas Holding Company were not an organs of the respondent “within the meaning of Article 4 of the ILC Articles on State Responsibility”.[371] 61
[A/74/83, p. 13]
General Court of the European Union
Ahmed Abdelaziz Ezz et al. v. Council
In Ahmed Abdelaziz Ezz et al. v. Council, the General Court of the European Union did not accept:
[t]he applicants’ argument that the Council’s assessment does not comply with ‘general international law’… . In that regard, it suffices to note that the applicants refer to the concept of ‘organ of the State’, as defined in the commentary of the United Nations International Law Commission on the 2001 Resolution on Responsibility of States for Internationally Wrongful Acts and in international arbitral decisions ruling on responsibility of States in the context of disputes between States and private companies. Thus, those references, for reasons similar to those set out in paragraph 268 above, are irrelevant in the present case.[372] 62
[A/74/83, p. 14]
[369] 59 ICSID, Case No. ARB/14/4, Award, 31 August 2018, para. 9.92.
[370] 60 Ibid., para. 9.93.
[371] 61 Ibid., para. 9.112.
[372] 62 EU, General Court, Ahmed Abdelaziz Ezz et al. v. Council, Case T 288/15, Judgment of 27 September 2018, para. 272.
Article 4 91
World Trade Organization Panel
Thailand—Customs And Fiscal Measures On Cigarettes From The Philippines
The panel established in Thailand—Customs And Fiscal Measures On Cigarettes From
The Philippines “consider[ed] that Article 4(1) of these Articles [on State responsibility] is
an expression of customary international law”.[373] 63
[A/74/83, p. 14]
[Inter-American Court of Human Rights
Women Victims of Sexual Torture in Atenco v. Mexico
The Inter-American Court of Human Rights in Women Victims of Sexual Torture
in Atenco v. Mexico recalled that under the State responsibility articles, internationally
wrongful acts are attributable to the State not only when they are committed by organs
of that State (under Article 4), but also when the conduct of persons or entities exercising
elements of governmental authority is concerned.[374] 79
[A/74/83, p. 17]]
[World Trade Organization Panel
United States—Anti-Dumping and Countervailing Measures on Certain Coated Paper
from Indonesia
In United States—Anti-Dumping and Countervailing Measures on Certain Coated
Paper from Indonesia, the panel cited articles 4 and 7 of the State responsibility articles,
and the commentary thereto, when stating that “it is well established under international
law that an action or conduct of a government official or entity is attributable to the State
even where that action or conduct is contrary to national law”.[375] 83
[A/74/83, p. 17]]
International arbitral tribunal (under the ICSID Convention)
[Ampal-American Israel Corporation and others v. Arab Republic of Egypt
The arbitral tribunal in Ampal-American Israel Corporation and others v. Arab Republic
of Egypt quoted articles 4, 5, 8 and 11 of the State responsibility articles and
formed the view that the acts or omissions of EGPC [Egyptian General Petroleum Corporation] or
EGAS [Egyptian Natural Gas Holding Company] relevant to the conclusion and termination of the
GSPA [Gas Sale Purchase Agreement] are attributable to the Respondent under the relevant provi-
[373] 63 WTO, Panel Report, WT/DS371/RW, 12 November 2018, paras. 7.636 and 7.771 (note 1654);
see also WTO, Panel Report, Thailand—Customs And Fiscal Measures On Cigarettes From The Philippines,
WT/DS371/R, 15 November 2010, para. 7.120.
[374] [79 IACHR, Preliminary Objection, Merits, Reparations and Costs. Series C No. 371 (Spanish),
Judgment of 28 November 2018, para. 205 and footnote 303.]
[375] [83 WTO, Report of the Panel, WT/DS491/R, 6 December 2017, para. 7.179.]
92 Article 4
sions of the ILC Draft Articles on State Responsibility, which form part of the applicable customary international law.[376] 96
The tribunal further explained, referring to article 8 of the State responsibility articles, that EGPC and EGAS
were ‘in fact acting on the instructions of, or under the direction or control of’ the Respondent in relation to the particular conduct. In any event, the Tribunal finds that the Respondent subsequently ratified the termination of the GSPA and thus ‘acknowledge[d] and adopt[ed] the conduct in question as its own’ within the terms of Article 11.[377] 97
[A/74/83, p. 20]]
Staur Eiendom AS, EBO Invest AS and Rox Holding AS v. Republic of Latvia
The arbitral tribunal in Staur Eiendom AS, EBO Invest AS and Rox Holding AS v. Republic of Latvia noted that “[i]t is common ground that under Article 4, the conduct of a State organ acting as such is attributable to the State”.[378] 29 The tribunal added that “a person or entity may be characterized as an organ of the State as a matter of international law even if it does not possess that character under the State’s internal law”.[379] 30
[A/77/74, p. 9]
Iran-United States Claims Tribunal
Award No. 604-A15 (II:A)/A26 (IV)/B43-FT
In a partial award rendered in 2020, the Iran-United States Claims Tribunal noted that “[u]nder international law, as expressed in Article 4 of the ILC Articles, the conduct of a State’s judiciary is attributable to the State, since the judiciary is a branch of the State”.[380] 31
[A/77/74, p. 9]
International arbitral tribunal (under the ICSID Convention)
Ortiz Construcciones y Proyectos S.A. v. People’s Democratic Republic of Algeria
In Ortiz Construcciones y Proyectos S.A. v. People’s Democratic Republic of Algeria, the arbitral tribunal referred to article 4 and the commentary thereto and noted that it was uncontested that “any person or entity having the status of a State organ under Algerian law is a de jure organ of the State of Algeria” and that “article 4 (2) does not exclude the possibility of a person or entity that does not have that status of a State organ under Algerian law nevertheless being a de facto organ, or of the acts or omissions of such a de facto organ being
[376] [96 ICSID, Case No. ARB/12/11, Decision on Liability and Heads of Loss, 21 February 2017, para. 135.]
[377] [97 Ibid., para. 146.]
[378] 29 ICSID, Case No. ARB/16/38, Award, 28 February 2020, para. 312.
[379] 30 Ibid., para. 313.
[380] 31 IUSCT, Award No. 604-A15 (II:A)/A26 (IV)/B43-FT, Partial Award, 10 March 2020, para. 1141.
Article 4 93
attributable to the State of Algeria under article 4”.[381] 32 The tribunal stressed that articles 4 to 11 reflected customary international law on the subject of State responsibility.[382] 33
[A/77/74, p. 10]
[The tribunal distinguished the application of article 8 from that of other relevant provisions, noting that:
Conduct of entities under the effective control of the State that is unauthorized or contrary to instructions is not in principle attributable to the State. Indeed, article 7 of the articles on State responsibility “only applies to the conduct of an organ of a State or of an entity empowered to exercise elements of the governmental authority, i.e. only to those cases of attribution covered by articles 4, 5 and 6.” The only exception to this rule is situations where specific instructions have been ignored while the State was exercising effective control over the conduct in question.[383] 70
[A/77/74, p. 14]]
International arbitral tribunal (under Annex VII to the 1982 United Nations Convention on the Law of the Sea)
The “Enrica Lexie” Incident (Italy v. India)
The arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea in The “Enrica Lexie” Incident (Italy v. India) referred to article 4, suggesting that “there exists a presumption under international law that a State is right about the characterization of the conduct of its official as being official in nature”.[384] 34
[A/77/74, p. 10]
World Trade Organization Panel
Saudi Arabia—Measures concerning the Protection of Intellectual Property Rights
The panel established in Saudi Arabia—Measures concerning the Protection of Intellectual Property Rights cited the text of article 4, noting that as a consequence of such rule
a [WTO] Member is responsible for actions at all levels of government (local, municipal, federal) and for all actions taken by any agency within any level of government. Thus, the responsibility of Members under international law applies irrespective of the branch of government at the origin of the action having international repercussions.[385] 35
[A/77/74, p. 10]
[381] 32 ICSID, Case No. ARB/17/1, Award, 29 April 2020, paras. 160–161.
[382] 33 Ibid., para. 155.
[383] [70 Ibid., para. 248, citing James Crawford, Les articles de la C.D.I. sur la responsabilité de l’État: Introduction, texte et commentaires (Paris, Pedone, 2003).]
[384] 34 PCA, Case No. 2015–28, Award, 21 May 2020, para. 858.
[385] 35 WTO, Panel Report, WT/DS567/R, 16 June 2020, para. 7.50.
94 Article 4
International arbitral tribunal (under the ICSID Convention)
Carlos Ríos and Francisco Ríos v. Republic of Chile
In Carlos Ríos and Francisco Ríos v. Republic of Chile, the arbitral tribunal cited the commentary to article 4, noting that, except in the case of umbrella clauses contained in investment treaties, “in order for the international responsibility of a State to be engaged in connection with the breach of an investment treaty, the State must have acted in the exercise of sovereign prerogatives, not as a party in a contractual relationship”.[386] 36
[A/77/74, p. 10]
Arbitration Institute of the Stockholm Chamber of Commerce
State Development Corporation “VEB.RF” v. Ukraine
The arbitral tribunal in State Development Corporation “VEB.RF” v. Ukraine referred to article 4 in ascertaining whether the claimant investor should be characterized as an organ of the Russian Federation.[387] 37 The tribunal cited the commentary to article 4, paragraph 2, according to which “it is not sufficient to refer to internal law for the status of State organs. In some systems the status and functions of various entities are determined not only by law but also by practice, and reference exclusively to internal law would be misleading”.[388] 38 The tribunal concluded “that the internal law of the Russian Federation may be relevant in the characterization of the Claimant as a matter of international law, but it will not be determinative of that characterization”.[389] 39
[A/77/74, p. 10]
International arbitral tribunal (under UNCITRAL Rules)
Naturgy Energy Group, S.A., and Naturgy Electricidad Colombia, S.L. v. Republic of Colombia
In Naturgy Energy Group, S.A., and Naturgy Electricidad Colombia, S.L. v. Republic of Colombia, the arbitral tribunal analysed whether the national authorities could be responsible for the debt for non-payment of electricity bills by certain governmental entities to the investor’s local company. The tribunal referred to article 4, noting that, “while the Tribunal recognizes that the concept of State organ is broadly defined in article 4 …, the Tribunal reads this article simply as attributing the debts of regional public entities to the State”.[390] 40 However, it rejected the idea that all debts from decentralized entities, including city halls and clinics, could be considered attributable to the State.[391] 41
[A/77/74, p. 11]
[386] 36 ICSID, Case No. ARB/17/16, Award, 11 January 2021, para. 259.
[387] 37 SCC, Case No. V2019/088, Partial Award on Preliminary Objections, 31 January 2021, para. 153.
[388] 38 Ibid., para. 154.
[389] 39 Ibid., para. 155.
[390] 40 ICSID (UNCITRAL), Case No. UNCT/18/1, Award, 12 March 2021, para. 423.
[391] 41 See, generally, ibid., paras. 421–423.
Article 4 95
Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria
The arbitral tribunal in Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria took the view that “all organs of the State, including those which have an independent existence in domestic law, are to be treated as part of the State. This is customary international law, and is clear in the light of the Articles”.[392] 42 The tribunal also cited articles 1, 5, 9, 34, 36 and 38.[393] 43
[A/77/74, p. 11]
International arbitral tribunal (under the ICSID Additional Facility Rules)
América Móvil S.A.B. de C.V. v. Colombia
In América Móvil S.A.B. de C.V. v. Colombia, the arbitral tribunal recalled the duty of international judges to respect domestic judicial decisions concerning issues of domestic law, but noted that, pursuant to article 4, “in some cases, actions of the judiciary, like those of other branches of Government, may also give rise to State responsibility”.[394] 44
[A/77/74, p. 11]
International arbitral tribunal (under the ICSID Convention)
Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan
The arbitral tribunal in Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan recalled that “under international law, the State is treated as a unity”.[395] 45 Furthermore, the tribunal pointed out that “the unity of the State in international law is the reason why all conduct of any State organ is attributable to the State under ILC Article 4 … Thus, the conduct of central and local State organs will be attributable to the State, as will be the conduct of legislative, judicial or executive organs”.[396] 46
Furthermore, citing the commentary to article 4, the tribunal noted that “it is irrelevant if the State organ’s conduct is sovereign or commercial in nature. While the nature of the conduct can be determinative for a liability analysis, for purposes of attribution under ILC Article 4, a State organ’s commercial conduct will also be deemed an act of the State”.[397] 47 It considered that
the fact that an entity is not specifically classified as a State organ under domestic law, while relevant, is not outcome-determinative for the attribution inquiry under ILC Article 4, which is carried out pursuant to international law. Equally, the fact that an entity may have separate legal personality is not per se an impediment to that entity qualifying as a State organ.[398] 48
The tribunal considered a number of factors to determine “whether an entity can be deemed a State organ in international law”:
[392] 42 Final Award, 26 March 2021, para. 72.
[393] 43 Ibid., paras. 72 and 134–135.
[394] 44 See footnote [191] 24 above, para. 345.
[395] 45 See footnote [128] 16 above, para. 742.
[396] 46 Ibid., para. 743.
[397] 47 Ibid., para. 744.
[398] 48 Ibid., para. 745.
96 Article 4
(i) whether the entity carries out an overwhelming governmental purpose; (ii) whether the entity relies on other State organs for making and implementing decisions; (iii) whether the entity is in a relationship of complete dependence on the State; and (iv) whether the entity carries out the role of an executive agency, merely implementing decisions taken by State organs.[399] 49
The tribunal concluded that “the conduct of State ministries and State agencies, and the conduct of subdivisions of State, such as provinces and municipalities, are always attributable to a State under ILC Article 4”.[400] 50
[A/77/74, p. 11]
Eco Oro Minerals Corp. v. Republic of Colombia
The arbitral tribunal in Eco Oro Minerals Corp. v. Republic of Colombia referred to article 4 in the context of attribution, and found that “Colombia should have ensured that its various arms took the necessary steps to comply with [its] … obligation”.[401] 51
[A/77/74, p. 12]
Pawlowski AG and Project Sever s.r.o. v. Czech Republic
In Pawlowski AG and Project Sever s.r.o. v. Czech Republic, the arbitral tribunal concluded that “[t]he Mayor of Benice represents an organ of the Czech Republic at a territorial level, and in accordance with Article 4 of the ILC Articles her conduct must be attributed to the Czech Republic”.[402] 52
[A/77/74, p. 12]
Inter-American Court of Human Rights
Manuela et al. v. El Salvador
In Manuela et al. v. El Salvador, the Inter-American Court of Human Rights analysed whether the actions of public defenders could be attributable to the State. It referred to article 4, noting that
[t]he Public Defenders’ Unit is part of the Office of the Attorney General and can be considered an organ of the State; therefore, its actions should be considered acts of the State in the sense accorded to this by the articles on Responsibility of States for Internationally Wrongful Acts drawn up by the International Law Commission.[403] 53
[A/77/74, p. 12
[399] 49 Ibid., para. 746.
[400] 50 Ibid., para. 749.
[401] 51 ICSID, Case No. ARB/16/41, Decision on Jurisdiction, Liability and Directions on Quantum, 9 September 2021, para. 821.
[402] 52 ICSID, Case No. ARB/17/11, Award, 1 November 2021, para. 373.
[403] 53 IACHR, Series C, No. 441, Judgment (Preliminary Objections, Merits, Reparations and Costs), 2 November 2021, para. 123.
97
Article 5. Conduct of persons or entities exercising elements of governmental authority
The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.
Commentary
(1) Article 5 deals with the attribution to the State of conduct of bodies which are not State organs in the sense of article 4, but which are nonetheless authorized to exercise governmental authority. The article is intended to take account of the increasingly common phenomenon of parastatal entities, which exercise elements of governmental authority in place of State organs, as well as situations where former State corporations have been privatized but retain certain public or regulatory functions.
(2) The generic term “entity” reflects the wide variety of bodies which, though not organs, may be empowered by the law of a State to exercise elements of governmental authority. They may include public corporations, semi-public entities, public agencies of various kinds and even, in special cases, private companies, provided that in each case the entity is empowered by the law of the State to exercise functions of a public character normally exercised by State organs, and the conduct of the entity relates to the exercise of the governmental authority concerned. For example, in some countries private security firms may be contracted to act as prison guards and in that capacity may exercise public powers such as powers of detention and discipline pursuant to a judicial sentence or to prison regulations. Private or State-owned airlines may have delegated to them certain powers in relation to immigration control or quarantine. In one case before the Iran-United States Claims Tribunal, an autonomous foundation established by the State held property for charitable purposes under close governmental control; its powers included the identification of property for seizure. It was held that it was a public and not a private entity, and therefore within the tribunal’s jurisdiction; with respect to its administration of allegedly expropriated property, it would in any event have been covered by article 5.[404] 127
(3) The fact that an entity can be classified as public or private according to the criteria of a given legal system, the existence of a greater or lesser State participation in its capital, or, more generally, in the ownership of its assets, the fact that it is not subject to executive control—these are not decisive criteria for the purpose of attribution of the entity’s conduct to the State. Instead, article 5 refers to the true common feature, namely that these entities are empowered, if only to a limited extent or in a specific context, to exercise specified elements of governmental authority.
(4) Parastatal entities may be considered a relatively modern phenomenon, but the principle embodied in article 5 has been recognized for some time. For example, the replies to the request for information made by the Preparatory Committee for the 1930 Hague Conference indicated strong support from some Governments for the attribution to the State of the conduct of autonomous bodies exercising public functions of an administrative or legislative character. The German Government, for example, asserted that:
[404] 127 Hyatt International Corporation v. The Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 9, p. 72, at pp. 88–94 (1985).
98 Article 5
when, by delegation of powers, bodies act in a public capacity, e.g., police an area … the principles governing the responsibility of the State for its organs apply with equal force. From the point of view of international law, it does not matter whether a State polices a given area with its own police or entrusts this duty, to a greater or less extent, to autonomous bodies.[405] 128
The Preparatory Committee accordingly prepared the following basis of discussion, though the Third Committee of the Conference was unable in the time available to examine it:
A State is responsible for damage suffered by a foreigner as the result of acts or omissions of such … autonomous institutions as exercise public functions of a legislative or administrative character, if such acts or omissions contravene the international obligations of the State.[406] 129
(5) The justification for attributing to the State under international law the conduct of “parastatal” entities lies in the fact that the internal law of the State has conferred on the entity in question the exercise of certain elements of the governmental authority. If it is to be regarded as an act of the State for purposes of international responsibility, the conduct of an entity must accordingly concern governmental activity and not other private or commercial activity in which the entity may engage. Thus, for example, the conduct of a railway company to which certain police powers have been granted will be regarded as an act of the State under international law if it concerns the exercise of those powers, but not if it concerns other activities (e.g. the sale of tickets or the purchase of rolling-stock).
(6) Article 5 does not attempt to identify precisely the scope of “governmental authority” for the purpose of attribution of the conduct of an entity to the State. Beyond a certain limit, what is regarded as “governmental” depends on the particular society, its history and traditions. Of particular importance will be not just the content of the powers, but the way they are conferred on an entity, the purposes for which they are to be exercised and the extent to which the entity is accountable to government for their exercise. These are essentially questions of the application of a general standard to varied circumstances.
(7) The formulation of article 5 clearly limits it to entities which are empowered by internal law to exercise governmental authority. This is to be distinguished from situations where an entity acts under the direction or control of the State, which are covered by article 8, and those where an entity or group seizes power in the absence of State organs but in situations where the exercise of governmental authority is called for: these are dealt with in article 9. For the purposes of article 5, an entity is covered even if its exercise of authority involves an independent discretion or power to act; there is no need to show that the conduct was in fact carried out under the control of the State. On the other hand, article 5 does not extend to cover, for example, situations where internal law authorizes or justifies certain conduct by way of self-help or self-defence; i.e. where it confers powers upon or authorizes conduct by citizens or residents generally. The internal law in question must specifically authorize the conduct as involving the exercise of public authority; it is
[405] 128 League of Nations, Conference for the Codification of International Law, Bases of Discussion … (footnote [147] 88 above), p. 90. The German Government noted that these remarks would extend to the situation where “the State, as an exceptional measure, invests private organisations with public powers and duties or authorities [sic] them to exercise sovereign rights, as in the case of private railway companies permitted to maintain a police force”, ibid.
[406] 129 Ibid., p. 92.
Article 5 99
not enough that it permits activity as part of the general regulation of the affairs of the community. It is accordingly a narrow category.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Iran-United States Claims Tribunal
Phillips Petroleum Co. Iran v. Islamic Republic of Iran
In its 1987 award in the Phillips Petroleum Co. Iran v. Islamic Republic of Iran case, the Tribunal, in determining whether the Islamic Republic of Iran was responsible for expropriation of goods of the claimant when it allegedly took the latter’s property interests through the National Iranian Oil Company (NIOC), observed in a footnote, with reference to draft article 7 provisionally adopted by the International Law Commission:[407] 66
International law recognizes that a State may act through organs or entities not part of its formal structure. The conduct of such entities is considered an act of the State when undertaken in the governmental capacity granted to it under the internal law. See article 7(2) of the draft articles on State responsibility adopted by the International Law Commission, Yearbook International Law Commission 2 (1975), at p. 60. The 1974 Petroleum Law of Iran explicitly vests in NIOC “the exercise and ownership right of the Iranian nation on the Iranian Petroleum Resources”. NIOC was later integrated into the newly-formed Ministry of Petroleum in October 1979.[408] 67
[A/62/62, para. 43]
World Trade Organization panel
Canada—Measures Affecting the Importation of Milk and the Exportation of Dairy Products
In its 1999 reports on Canada—Measures Affecting the Importation of Milk and the Exportation of Dairy Products, the panel referred to draft article 7, paragraph 2, adopted by the International Law Commission on first reading[409] 68 in support of its finding that
[407] 66 This provision was amended and incorporated in article 5 finally adopted by the International Law Commission in 2001. The text of draft article 7 provisionally adopted was as follows:
Article 7
Attribution to the State of the conduct of other entities empowered
to exercise elements of the government authority
1. The conduct of an organ of a territorial governmental entity within a State shall also be considered as an act of that State under international law, provided that organ was acting in that capacity in the case in question.
2. The conduct of an organ of an entity which is not part of the formal structure of the State or of a territorial governmental entity, but which is empowered by the internal law of that State to exercise elements of the governmental authority, shall also be considered as an act of the State under international law, provided that organ was acting in that capacity in the case in question. (Yearbook … 1980, vol. II (Part Two), para. 34.)
[408] 67 IUSCT, Award No. 326–10913–2, 3 November 1987, Iran-United States Claims Tribunal Reports, vol. 21 (1989), p. 79, para. 89, footnote 22.
[409] 68 Draft article 7 adopted on first reading was amended and incorporated in article 5 as finally adopted by the International Law Commission in 2001. The text of that provision (see Yearbook … 1996, vol. II
100 Article 5
the Canadian provincial marketing boards acting under the explicit authority delegated to them by either the federal Government or a provincial Government were “agencies” of those Governments in the sense of article 9.1(a) of the Agreement on Agriculture, even if they were not formally incorporated as Government agencies. In a footnote, the panel reproduced the text of article 7, paragraph 2, and noted that this provision “might be considered as reflecting customary international law”.[410] 69
[A/62/62, para. 44]
International Tribunal for the Former Yugoslavia
Prosecutor v. Duško Tadić
In its 1999 judgement in the Tadić case, the Appeals Chamber, in commenting on the 1986 judgment of the International Court of Justice in the Military and Paramilitary Activities in and against Nicaragua case, observed:
It would … seem that in Nicaragua the Court distinguished between three categories of individuals. The first comprised those who did have the status of officials: members of the Government administration or armed forces of the United States. With regard to these individuals, the Court clearly started from a basic assumption, which the same Court recently defined as “a well-established rule of international law” [see page 65 above], that a State incurs responsibility for acts in breach of international obligations committed by individuals who enjoy the status of organs under the national law of that State or who at least belong to public entities empowered within the domestic legal system of the State to exercise certain elements of governmental authority.[411] 70
In a footnote,[412] 71 the Appeals Chamber quoted draft article 7 adopted by the International Law Commission on first reading, as well as the corresponding draft article provisionally adopted by the Commission’s Drafting Committee in 1998.[413] 72
Later in the same judgement, the Appeals Chamber twice referred to draft article 7 adopted by the ILC on first reading in the context of its examination of the rules applicable for the attribution to States of acts performed by private individuals.[414] 73 In a footnote corresponding to the statement that “the whole body of international law on State responsibility is based on a realistic concept of accountability, which disregards legal formalities and aims at ensuring that States entrusting some functions to individuals or groups of indi(Part Two), para. 65) was identical to that of article 7 provisionally adopted. (See footnote [407] 66 above.)
[410] 69 WTO, Panel Report, WT/DS103/R and WT/DS113/R, 17 May 1999, para. 7.77, footnote 427.
[411] 70 ICTY, Appeals Chamber, Judgement, Case No. IT-94–1-A, 15 July 1999, para. 109 (footnotes omitted).
[412] 71 Ibid., para. 109, footnote 130.
[413] 72 The text of draft article 5 (Attribution to the State of the conduct of entities exercising elements of the governmental authority) adopted by the International Law Commission Drafting Committee in 1998 was the following:
The conduct of an entity which is not an organ of the State under article 5 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the entity was acting in that capacity in the case in question. (Yearbook … 2000, vol. II (Part Two), p. 65.)
[414] 73 For the complete passage of the Appeals Chamber’s judgement on that issue, see [p. 128] below.
Article 5 101
viduals must answer for their actions, even when they act contrary to their directives”,[415] 74 the Appeals Chamber noted that
[t]his sort of “objective” State responsibility also arises in a different case. Under the relevant rules on State responsibility as laid down in article 7 of the International Law Commission draft, a State incurs responsibility for acts of organs of its territorial governmental entities (regions, Länder, provinces, member states of federal States, etc.) even if under the national Constitution these organs enjoy broad independence or complete autonomy.[416] 75
Subsequently, the Appeals Chamber also observed that
[i]n the case envisaged by article 10 of the draft on State responsibility (as well as in the situation envisaged in article 7 of the same draft), State responsibility objectively follows from the fact that the individuals who engage in certain internationally wrongful acts possess, under the relevant legislation, the status of State officials or of officials of a State’s public entity.[417] 76
[A/62/62, para. 45]
International arbitral tribunal (under the ICSID Convention)
Maffezini v. Kingdom of Spain
In its 2000 decision on objections to jurisdiction, the arbitral tribunal constituted to hear the Maffezini v. Spain case, in deciding whether the acts of the private corporation Sociedad para el Desarrollo Industrial de Galicia (with which the claimant had made various contractual dealings) were imputable to Spain, referred to draft article 7, paragraph 2, adopted by the International Law Commission on first reading:
a State will not necessarily escape responsibility for wrongful acts or omissions by hiding behind a private corporate veil. Paragraph 2 of article 7 of the International Law Commission’s draft articles on State responsibility supports this position.[418] 77
[A/62/62, para. 46]
International arbitral tribunal
Dispute concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v. United Kingdom)
In its 2003 final award, the arbitral tribunal established to resolve the dispute between Ireland and the United Kingdom concerning access to information under article 9 of the OSPAR Convention referred to article 5 (as well as article 4) finally adopted by the International Law Commission in 2001. The relevant passage is quoted [on page 69] above.
[A/62/62, para. 47]
[415] 74 ICTY, Appeals Chamber, Judgement, Case No. IT-94–1-A, 15 July 1999, para. 122.
[416] 75 Ibid., para. 122, footnote 140.
[417] 76 ICTY, Appeals Chamber, Judgement, Case No. IT-94–1-A, 15 July 1999, para. 123 (footnotes omitted).
[418] 77 ICSID, Case No. ARB/97/7, Decision on Objections to Jurisdiction, 25 January 2000, para. 78 (footnotes omitted), reproduced in ICSID Review—Foreign Investment Law Journal, vol. 16, No. 1, 2001, p. 29.
102 Article 5
International arbitral tribunal
Eureko B.V. v. Republic of Poland
In its 2005 partial award, the arbitral tribunal constituted to hear the Eureko BV v. Republic of Poland case, in considering whether actions undertaken by the Minister of the State Treasury with respect to a shared purchase agreement with the claimant were attributable to Poland, referred to the commentary to article 5 finally adopted by the International Law Commission in 2001.[419] 78
[A/62/62, para. 48]
International arbitral tribunal (under the ICSID Convention)
Noble Ventures, Inc. v. Romania
In its 2005 award, the arbitral tribunal constituted to hear the Noble Ventures, Inc. v. Romania case, in determining whether the acts of a Romanian “institution of public interest” (the State Ownership Fund, subsequently replaced by the Authority for Privatization and Management of the State Ownership), which were alleged to have constituted violations of the bilateral investment treaty at issue, were attributable to Romania, referred to article 5 finally adopted by the International Law Commission in 2001:
The 2001 draft articles … attribute to a State the conduct of a person or entity which is not a de jure organ but which is empowered by the law of that State to exercise elements of governmental authority provided that person or entity is acting in that capacity in the particular instance. This rule is equally well established in customary international law as reflected by article 5 of the 2001 International Law Commission draft.[420] 79
[A/62/62, para. 49]
Consorzio Groupement LESI-DIPENTA v. People’s Democratic Republic of Algeria and LESI, S.p.A. and Astaldi, S.p.A. v. People’s Democratic Republic of Algeria
In its 2005 and 2006 awards, the arbitral tribunal constituted to hear the Consorzio Groupement LESI-DIPENTA v. Algeria and the LESI and Astaldi v. Algeria cases referred, inter alia, to article 6 finally adopted by the International Law Commission in 2001 in support of its finding according to which “the responsibility of the State can be engaged in contracts signed by public enterprises distinct from the State, when the State still retains important or dominant influence”.[421] 80
[A/62/62, para. 50]
[419] 78 See footnote [55] 11 above, para. 132. The arbitral tribunal referred in particular to paragraph (1) of the commentary to article 5 (Yearbook of the International Law Commission, 2001, vol. II (Part Two), para. 77).
[420] 79 ICSID, Case No. ARB/01/11, Award, 12 October 2005, para. 70.
[421] 80 ICSID, Case No. ARB/03/08, Award, 10 January 2005, para. 19, reproduced in ICSID Review—Foreign Investment Law Journal, vol. 19, No. 2, 2004, pp. 455–456 (unofficial English translation by ICSID of the French original) and Case No. ARB/05/3, Award, 12 July 2006, para. 78. Although in these awards the tribunal inadvertently refers to article 8 (concerning the conduct of private persons directed or controlled by a State), the situation it was dealing with involved the conduct of a public entity
Article 5 103
International arbitral tribunal (under UNCITRAL Rules)
Encana Corporation v. Republic of Ecuador
In its 2006 award, the arbitral tribunal constituted to hear the EnCana Corp. v. Ecuador case under the Canada-Ecuador investment treaty and the UNCITRAL arbitration rules, after having found that the conduct at issue of Petroecuador, a State-owned and State-controlled instrumentality of Ecuador, was attributable to the latter, noted that it “does not matter for this purpose whether this result flows from the principle stated in article 5 of the International Law Commission’s articles on responsibility of States for internationally wrongful acts or that stated in article 8”, and quoted the text of these provisions as finally adopted by the Commission in 2001.[422] 81
[A/62/62, para. 51]
International arbitral tribunal (under the ICSID Convention)
Jan de Nul NV and Dredging International NV v. Arab Republic of Egypt
In its 2006 decision on jurisdiction, the arbitral tribunal constituted to hear the Jan de Nul NV and Dredging International NV v. Arab Republic of Egypt case referred, inter alia, to article 5 finally adopted by the International Law Commission in 2001.
[A/62/62, para. 52]
Helnan International Hotels A/S v. The Arab Republic of Egypt
The arbitral tribunal in the Helnan International Hotels A/S v. Egypt case considered a challenge by the Respondent to its jurisdiction on the ground that the actions of the domestic entity under scrutiny in the case were not attributable to Egypt, despite the fact that the entity was wholly owned by the Government of Egypt. While the tribunal found that it did have jurisdiction on other grounds, it nonetheless proceeded to consider the Respondent’s challenge and found that the claimant had convincingly demonstrated that the entity in question was “under the close control of the State”. In making this finding, it referred to the commentary to article 5 of the State responsibility articles, first by way of acknowledgment that the
fact that an entity can be classified as public or private according to the criteria of a given legal system, the existence of a greater or lesser State participation in its capital or, more generally, in the ownership of its assets, the fact that it is not subject to executive control—these are not decisive criteria for the purpose of attribution of the entity’s conduct to the State.[423] 12
Nonetheless, the tribunal noted that “[the domestic entity] was an active operator in the privatisation of the tourism industry on behalf of the Egyptian Government” and proceeded to recall article 5 (which is quoted in full) and then held that “[e]ven if [the domestic entity] exercising elements of governmental authority, which is covered by article 5 of the International Law Commission articles. These references are accordingly included under this section of the compilation.
[422] 81 London Court of International Arbitration, Case No. UN3481, Award, 3 February 2006, para. 154.
[423] 12 Paragraph (3) of the commentary to article 5.
104 Article 5
has not been officially empowered by law to exercise elements of the governmental authority, its actions within the privatisation process are attributable to the Egyptian State”.[424] 13
[A/65/76, para. 17]
Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia
The arbitral tribunal constituted to hear the Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia case determined that, although the tribunal invoked article 7 during the jurisdictional phase, articles 4, 5 and 11 were equally applicable to the dispute.[425] 36 The tribunal concluded that “there can be no real question in these arbitrations as to the attribution of any acts or omissions on the part of [the relevant entities] to the Respondent”.[426] 37
[See A/68/72, footnote 55 and para. 32]
Gustav F W Hamester GmbH & Co KG v. Republic of Ghana
In its award, the arbitral tribunal constituted to hear the Gustav F W Hamester GmbH & Co KG v. Republic of Ghana case indicated that “[i]n order for an act to be attributed to a State, it must have a close link to the State”.[427] 56 Referring to articles 4, 5, and 8, the tribunal stated that such a link could result when “the person performing the act is part of the State’s organic structure (Article 4); or is utilising the State’s specific governmental powers to perform such act, even if it is a separate entity (Article 5); or is acting under the effective control … of the State, even if it is a private or public party (Article 8)”.[428] 57 The tribunal noted that, under article 5, “[i]t is clear that two cumulative conditions have to be present [for attribution]: an entity empowered with governmental authority; and an act performed through the exercise of governmental authority”.[429] 58
Upon consideration of the relevant law and facts, the tribunal concluded that, under article 5, the entity exercised “elements of governmental authority”.[430] 59 Nonetheless, the tribunal indicated that such a conclusion
in itself clearly does not resolve the issue of attribution … . [F]or an act of a separate entity exercising elements of governmental authority to be attributed to the State, it must be shown that the precise act in question was an exercise of such governmental authority and not merely an act that could be performed by a commercial entity. This approach has been followed in national as well as international case law.[431] 60
In applying article 5 to the particular acts at issue, the tribunal “concentrated on the utilisation of governmental power”, and assessed whether the entity in question
[424] 13 ICSID, Case No. ARB 05/19, Decision on Objection to Jurisdiction, 17 October 2006, paras. 92 and 93.
[425] [36 See footnote [288] 36, para. 274 (quoting articles 4, 5 and 11).]
[426] [37 Ibid., paras. 274 and 280.]
[427] 56 See footnote [105] 20 above, para. 172.
[428] 57 Ibid.
[429] 58 Ibid., paras. 175–177.
[430] 59 Ibid., para. 192.
[431] 60 Ibid., para. 193.
Article 5 105
acted like any contractor/shareholder, or rather as a State entity enforcing regulatory powers … . It is not enough for an act of a public entity to have been performed in the general fulfilment of some general interest, mission or purpose to qualify as an attributable act.[432] 61
The tribunal also distinguished the attribution analysis under article 5 from the analysis under article 8, indicating that “attribution or non-attribution under Article 8 [was] independent of the status of [the entity], and dependent only on whether the acts were performed ‘on the instructions of, or under the direction or control’ of that State”.[433] 62
[A/68/72, paras. 45–48]
[Alpha Projektholding GmbH v. Ukraine
The arbitral tribunal in Alpha Projektholding GmbH v. Ukraine referred to articles 4, 5 and 8 as part of its analysis of the question of attribution. The tribunal concluded that the conduct of a “State organ … is clearly attributable to the State under Article 4(1) of the ILC Articles”.[434] 39 The tribunal also relied upon the commentary to article 4 in finding that whether or not a State organ’s conduct “was based on commercial or other reasons is irrelevant with respect to the question of attribution”.[435] 40
[See A/68/72, footnote 55 and para. 34]]
International Tribunal for the Law of the Sea (Seabed Disputes Chamber)
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area
In its advisory opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, the Seabed Disputes Chamber indicated that certain rules on the liability of sponsoring States in UNCLOS
are in line with the rules of customary international law on this issue. Under international law, the acts of private entities are not directly attributable to States except where the entity in question is empowered to act as a State organ (article 5 of the ILC Articles on State Responsibility) or where its conduct is acknowledged and adopted by a State as its own (article 11 of the ILC Articles on State Responsibility).[436] 63
[A/68/72, para. 49]
World Trade Organization Appellate Body
United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China
In its report in the United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China case, the Appellate Body considered whether the rules of
[432] 61 Ibid., para. 202; see also paras. 255, 266 and 284.
[433] 62 Ibid., para. 198.
[434] [39 See footnote [293] 39, para. 401.]
[435] [40 Ibid., para. 402.]
[436] 63 See footnote [12] 10 above, para. 182.
106 Article 5
attribution contained in the State responsibility articles are “relevant rules of international law applicable in the relations between the parties”.[437] 64 The Appellate Body held that, “[t]o the extent that Articles 4, 5 and 8 of the ILC Articles concern[ed] the same subject matter as [a provision] of the SCM Agreement, they would be ‘relevant’ in the sense of the Vienna Convention [on the Law of Treaties]”.[438] 65 The Appellate Body indicated that both the State responsibility articles and the SCM Agreement “set out rules relating to the question of attribution of conduct to a State”, though it noted “certain differences” in their respective approach to attribution.[439] 66
Concerning whether the State responsibility articles are “rules of international law … applicable in the relations between the parties”, the Appellate Body noted that “Articles 4, 5 and 8 are not binding by virtue of being part of an international treaty. However, insofar as they reflect customary international law or general principles of law, these Articles are applicable in the relations between the parties”.[440] 67
The Appellate Body also indicated that, “despite certain differences between the attribution rules”, its interpretation of the term “public body” as found in the SCM Agreement “coincides with the essence of Article 5”.[441] 68
In the light of its determination that article 5 supported, rather than contradicted, its interpretation of the SCM Agreement, and “because the outcome of [its] analysis [did] … not turn on Article 5”, the Appellate Body indicated that it was “not necessary … to resolve definitively the question of to what extent Article 5 of the ILC Articles reflects customary international law”.[442] 69
[A/68/72, paras. 50–53]
International arbitral tribunal (under UNCITRAL Rules)
[Sergei Paushok et al. v. The Government of Mongolia
The arbitral tribunal in the Sergei Paushok et al. v. The Government of Mongolia case referred to articles 4, 5 and 9 as constituting “international law rules of attribution” applicable to the dispute “which are generally considered as representing current customary international law”.[443] 41 While noting that the State responsibility articles “do not contain a definition of what constitutes an organ of the State”,[444] 42 the tribunal pointed to the commentary to article 4 which indicates the activities covered by the article’s reference to “State organ”.[445] 43
[437] 64 See footnote [13] 11 above, paras. 307 et seq. (quoting the Vienna Convention on the Law of Treaties, art. 31(3)(c)).
[438] 65 Ibid., para. 308.
[439] 66 Ibid., para. 309.
[440] 67 Ibid., para. 308; see below, p. 537, for discussion of the Appellate Body’s consideration of whether articles 4, 5 and 8 of the State responsibility articles would “be superseded by … the SCM Agreement as lex specialis regarding attribution pursuant to Article 55 of the ILC Articles”; ibid., para. 314.
[441] 68 Ibid., para. 310.
[442] 69 Ibid., para. 311.
[443] [41 See footnote [299] 41, paras. 576 and 577.]
[444] [42 Ibid., para. 581.]
[445] [43 Ibid., para. 582.]
Article 5 107
The tribunal also indicated that the distinction between articles 4 and 5 was “of particular relevance in the determination of potential liability of the State”.[446] 44]
[See A/68/72, footnote 55 and paras. 35–36]
[White Industries Australia Limited v. The Republic of India
In its award, the arbitral tribunal in White Industries Australia Limited v. The Republic of India referred to articles 4, 5 and 8 as part of its analysis of the question of attribution. The tribunal found that the claimant properly conceded that it was not relying on articles 4 or 5 as the entity in question was “patently … not an organ of the state within the meaning of Article 4, nor [did] it exercise elements of Governmental authority within the meaning of Article 5.”[447] 87
[See A/68/72, footnote 55 and para. 67]]
European Court of Human Rights
Kotov v. Russia
In its judgment in Kotov v. Russia, the European Court of Human Rights referred to the commentary to article 5 as part of its elaboration of the law relevant to the attribution of international responsibility to States.[448] 70 The Court quoted excerpts of the commentary relevant to the determination of which entities, including “parastatal entities”, were to be regarded as “governmental” for the purposes of attribution under international law.[449] 71
[A/68/72, para. 54]
International arbitral tribunal (under UNCITRAL Rules)
Claimants v. Slovak Republic
The arbitral tribunal in Claimants v. Slovak Republic noted that “there are three possible bases for attribution of wrongful acts to a State. They are found in Articles 4, 5 and 8 of the Articles on State Responsibility of the International Law Commission … ”.[450] 72 Upon consideration of articles 5 and 8, the tribunal determined that, on the basis of the evidence presented, the acts of certain non-State entities and individuals could not be said to have been “carried out in the exercise of governmental authority, nor on the instructions, or under the direction or control of the State”.[451] 73
[A/68/72, para. 55]
[446] [44 Ibid., para. 580.]
[447] [87 See footnote [303] 87 above, para. 8.1.2.]
[448] 70 See footnote [16] 14 above, paras. 31–32 (quoting paras. (3) and (6) of the commentary to article 5).
[449] 71 Ibid.
[450] 72 See footnote [305] 46 above, paras. 150–151.
[451] 73 Ibid., paras. 156–159; the tribunal added that, “if it were established that a State organ had acted under the influence of [a non-state entity], such acts would be attributable to the State.”; see also ibid., para. 163.
108 Article 5
Permanent Court of Arbitration (under UNCITRAL Rules)
Ulysseas, Inc. v. The Republic of Ecuador
The arbitral tribunal in the Ulysseas, Inc. v. The Republic of Ecuador case determined that the conduct of certain entities, despite not constituting organs of the Ecuadorian State, “may nonetheless fall within the purview of Article 5 of the ILC Articles and [the relevant] BIT to the extent governmental authority has been delegated to it with the consequence that some of their acts can be attributed to the State, provided that they are ‘acting in that capacity in the particular instance’.”[452] 74
[A/68/72, para. 56]
International arbitral tribunal (under the ICSID Convention)
Bosh International, Inc. & B and P Ltd. Foreign Investments Enterprise v. Ukraine
In its award, the arbitral tribunal in Bosh International, Inc. & B and P Ltd. Foreign Investments Enterprise v. Ukraine relied upon article 5 in its analysis of whether a university’s conduct was attributable to Ukraine.
The tribunal considered (1) whether the university was “empowered by the law of Ukraine to exercise elements of governmental authority”, and (2) whether “the conduct of the University relates to the exercise of that governmental authority”.[453] 75
With regard to the second aspect of its analysis, the tribunal relied upon the commentary to article 5 in indicating that “the question that falls for determination is whether the University’s conduct in entering into and terminating the [relevant contract] can be understood or characterised as a form of ‘governmental activity’, or as a form of ‘commercial activity’”.[454] 76
The tribunal also referred to article 5 as part of its analysis of a claim brought under the relevant bilateral investment treaty umbrella clause. The tribunal concluded that the term “Party”, as used in the umbrella clause, referred “to any situation where the Party is acting qua State”, namely “where the conduct of entities can be attributed to the Parties (under, for instance, Articles 4, 5 or 8 of the ILC Articles on State Responsibility) … ”.[455] 77
[A/68/72, paras. 57–60]
[Teinver S.A., et al. v. The Argentine Republic
The arbitral tribunal in Teinver S.A., et al. v. The Argentine Republic, in its 2012 decision on jurisdiction, referred to articles 4, 5 and 8 as part of its consideration of whether the acts of certain labour unions were attributable to the Argentine Republic. As a result of the “fact-intensive nature of [the claimants’] allegations”, the tribunal decided to postpone adjudication of the attribution issue until the merits phase.[456] 99 Nonetheless, the tribunal
[452] 74 See footnote [308] 49 above, para. 135 (quoting article 5).
[453] 75 See footnote [310] 75 above, para. 164 (citing James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), p. 100).
[454] 76 Ibid., para. 176.
[455] 77 Ibid., para. 246. The tribunal stated, in dictum, that it “could not agree that the [university in question] is a ‘State organ’ within the meaning of Article 4 of the ILC Articles”.
[456] [99 See footnote [315] 99 above, para. 274.]
Article 5 109
accepted the assertion of both parties “that article 8, and not articles 4 and 5, would be relevant to the analysis of the unions’ conduct … ”.[457] 100
[See A/68/72, footnote 55 and para. 73]]
Permanent Court of Arbitration (under UNCITRAL Rules)
Luigiterzo Bosca v. Lithuania
The arbitral tribunal in Luigiterzo Bosca v. Lithuania concluded that “[t]he SPF [State Property Fund] is an entity empowered to exercise governmental authority, as described in Article 5” of the State responsibility articles. The question for the arbitral tribunal was thus “whether the SPF was acting in a sovereign capacity”.[458] 70
[A/71/80, para. 56]
European Court of Human Rights
Jones and Others v. the United Kingdom
The European Court of Human Rights in Jones and Others v. the United Kingdom referred to article 5 as relevant international law,[459] 71 and noted that the acts of “persons empowered by the law of the State to exercise elements of the governmental authority and acting in that capacity, as defined in Article 5 of the Draft Articles” could be attributed to the State.[460] 72
[A/71/80, para. 57]
Samsonov v. Russia
In Samsonov v. Russia, the European Court of Human Rights referred to article 5 of the State responsibility articles as relevant international law.[461] 73
[A/71/80, para. 58]
Permanent Court of Arbitration (under UNCITRAL Rules)
William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada
In William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, the arbitral tribunal indicated with regard to articles 4 and 5 that “the ILC Articles quoted here are considered as statements of customary international law on the question of attribution for purposes of asserting the re-sponsibility of a State towards another State, which are applicable by analogy to the respon-sibility of States towards private parties”.[462] 59
[457] [100 Ibid., para. 275.]
[458] 70 See footnote [169] 26 above, para. 127 (misnumbered).
[459] 71 See footnote [323] 49 above, paras. 107–109.
[460] 72 Ibid., para. 207.
[461] 73 See footnote [20] 8 above, paras. 30–32 for further references to the State responsibility articles.
[462] [59 See footnote [333] 59 above, para. 308]
110 Article 5
The arbitral tribunal, relying on article 5, agreed with the investor’s contention that even if the Joint Review Panel was not “an integral part of the government apparatus of Canada … it is empowered to exercise elements of Canada’s governmental authority”.[463] 74
[A/71/80, paras. 49 and 59]
International arbitral tribunal (under the ICSID Convention)
Dan Cake S.A. v. Hungary
The arbitral tribunal in Dan Cake S.A. v. Hungary considered that “it is not relevant to the question whether the liquidator is, pursuant to Article 5 of the ILC Draft Articles on State Responsibility, ‘a person or entity … which is empowered by the law of [the] State to exercise elements of the governmental authority’”.[464] 75
[A/71/80, para. 60]
Inter-American Court of Human Rights
Gonzales Lluy et al. v. Ecuador
In Gonzales Lluy et al. v. Ecuador, the Inter-American Court of Human Rights cited the case of Ximenes Lopes v. Brazil, noting that in that case the Court had
indicated that the assumptions of State responsibility for violation of rights established in the Convention may include the conduct described in the Resolution of the International Law Commission, ‘of a person or entity that, although not a State body, is authorized by the laws of the State to exercise powers entailing the authority of the State. Such conduct, by either a natural or legal person, must be deemed to be an act of the State, provided that the latter was acting in this capacity’.[465] 76
[A/71/80, para. 61]
International arbitral tribunal (under the ICSID Convention)
Adel A Hamadi Al Tamimi v. Sultanate of Oman
In Adel A Hamadi Al Tamimi v. Sultanate of Oman, the arbitral tribunal noted that article 5 “provides a useful guide as to the dividing line between sovereign and commercial acts”.[466] 77
[A/71/80, para. 62]
Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey
The arbitral tribunal in Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey stated that as regards attribution of the conduct of Emlak to Turkey under
[463] 74 Ibid.
[464] 75 ICSID, Case No. ARB/12/9, Decision on Jurisdiction and Liability, 24 August 2015, para. 158 (quoting article 5).
[465] 76 IACHR, Judgment, 1 September 2015, note 205 (quoting Case of Ximenes Lopes v. Brazil, Merits, Reparations and Costs, Judgment, 4 July, 2006, para. 86).
[466] 77 See footnote [340] 66 above, para. 324.
Article 5 111
article 5 “it must be established both that (1) Emlak is empowered by the law of Turkey to exercise elements of governmental authority; and (2) The conduct by Emlak that the Claimant complains of relates to the exercise of that governmental authority”.[467] 78
[A/71/80, para. 63]
Tenaris S.A. and Talta—Trading e Marketing Sociedade Unipessoal Lda v. Bolivarian Republic of Venezuela
In Tenaris S.A. and Talta—Trading e Marketing Sociedade Unipessoal Lda v. Bolivarian Republic of Venezuela, the arbitral tribunal considered the question
whether CVG FMO [Ferrominera del Orinoco] was empowered by Venezuela to exercise elements of governmental authority, and was so acting in the case of the Supply Contract, and, specifically, the discriminatory supply of pellets, such that its actions might be attributed to Venezuela pursuant to Article 5 of the ILC Articles.[468] 79
[A/71/80, para. 64]
[The arbitral tribunal in Tenaris S.A. and Talta-Trading e Marketing Sociedade Unipessoal LDA v. Bolivarian Republic of Venezuela was “mindful of Note 3 of the commentary to Article 5” of the State responsibility articles when rejecting the applicant’s submission that “[CVG FMO]’s actions might be attributed to Venezuela pursuant to Article 5 of the ILC Articles”.[469] 65
[A/74/83, p. 14]]
[Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
The arbitral tribunal in Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain referred to articles 4, 5 and 8 of the State responsibility articles when stating that “[i]n order for an act to be attributed to a State, it must have a close link to the State”.[470] 52
[A/74/83, p. 12]]
Permanent Court of Arbitration (under UNCITRAL Rules)
[CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom Devas Mauritius Limited v. The Republic of India
In CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom Devas Mauritius Limited v. The Republic of India, the arbitral tribunal concluded that “when entering into the Agreement, Antrix was not acting as an organ of the Respondent, whether under the provisions of Articles 4 and 5 of the ILC Articles”.[471] 38
[A/74/83, p. 11]]
[467] 78 See footnotes [210] 40 and [128] 16 above, para. 292.
[468] 79 See footnote [342] 68 above, para. 414.
[469] [65 ICSID, Case No. ARB/11/26, Award, 29 January 2016, paras. 414–415.]
[470] [52 ICSID, Case No. ARB/14/1, Award, 16 May 2018, para. 168.]
[471] [38 PCA, Case No. 2013–09, Award on Jurisdiction and Merits, 25 July 2016, para. 281.]
112 Article 5
Mesa Power Group v. Government of Canada
In Mesa Power Group v. Government of Canada, the arbitral tribunal relied on article 5 of the State responsibility articles to find that “the OPA [Ontario Power Authority] was acting in the exercise of delegated governmental authority. Thus, the OPA’s acts in ranking and evaluating the FIT Applications are attributable to Canada”.[472] 66
[A/74/83, p. 15]
[In Mesa Power Group v. Government of Canada, the arbitral tribunal referred to arti-cle 55 of the State responsibility articles when finding that “Article 1503(2) [of NAFTA] constitutes a lex specialis that excludes the application of Article 5 of the ILC Articles”.[473] 249
[A/74/83, p. 42]]
Ad hoc committee (under the ICSID Convention)
Antoine Abou Lahoud et Leila Bounafeh-Abou Lahoud v. République Démocratique du Congo
In Antoine Abou Lahoud et Leila Bounafeh-Abou Lahoud v. République Démocratique du Congo, the committee established to annul the award found that the arbitral tribunal did not exceed its powers because, as its mandate required, it had verified the criteria for attribution of conduct under article 5 of the State responsibility articles.[474] 67
[A/74/83, p. 15]
Permanent Court of Arbitration (under UNCITRAL Rules)
Mr. Kristian Almås and Mr. Geir Almås v. The Republic of Poland
The arbitral tribunal in Mr. Kristian Almås and Mr. Geir Almås v. The Republic of Poland found that “the termination of the Lease Agreement was not attributable to Poland under ILC Article 5”[475] 68 after deciding that the Polish Agricultural Property Agency’s termination of the Lease Agreement took place in a “purported exercise of contractual powers”.
[A/74/83, p. 15]
Flemingo DutyFree Shop Private Limited v. The Republic of Poland
In Flemingo DutyFree Shop Private Limited v. The Republic of Poland, the arbitral tribunal noted that
[t]he Ministry of Transport, by statutory provisions, delegated to PPL the task of modernising and operating Polish airports, controlled PPL, and held it accountable for the exercise of its powers. It is thus an entity exercising governmental authority, as envisaged by Article 5 of the ILC Articles.[476] 69
[A/74/83, p. 15]
[472] 66 PCA, Case No. 2012–17, Award, 24 March 2016, para. 371.
[473] [249 PCA, Case No. 2012–17, Award, 24 March 2016, paras. 359, 362 and 365.]
[474] 67 ICSID, Case No. ARB/10/4, Decision on Annulment, 29 March 2016, para. 185.
[475] 68 PCA, Case No. 2015–13, Award, 27 June 2016, para. 251.
[476] 69 PCA, Award, IIC 883 (2016), 12 August 2016, para. 439.
Article 5 113
International arbitral tribunal (under the ICSID Convention)
Garanti Koza LLP v. Turkmenistan
The arbitral tribunal in Garanti Koza LLP v. Turkmenistan, citing article 5 of the State responsibility articles,
confirm[ed] that the acts of TAY [State Concern ‘Turkmenavtoyollary’] in furtherance of the Contract were attributable to Turkmenistan. Road and bridge construction is in any event a core function of government. Any entity empowered by a State to exercise elements of governmental authority is for that purpose acting as an organ of State.[477] 70
[A/74/83, p. 15]
Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela
In Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela, the arbitral tribunal noted that “although PDVSA is a State-owned company with distinct legal personality, its conduct is attributable to [the] Respondent pursuant to Article 5 of the ILC Draft Articles” because “[b]oth in its alleged function as a ‘caretaker’ and its capacity as supervisor and promoter of the nationalization of the plant, PDVSA was vested with governmental authority”.[478] 71
[A/74/83, p. 15]
Permanent Court of Arbitration (under UNCITRAL Rules)
WNC Factoring Limited v. The Czech Republic
In WNC Factoring Limited v. The Czech Republic, the arbitral tribunal stated that “[b]ased on the material available to the Tribunal, there are serious issues which arise in attributing the conduct of CEB [Czech Export Bank] and GAP [Export Guarantee and Insurance Corporation] to the Respondent under Article 5 of the ILC Articles”.[479] 72
[A/74/83, p. 16]
International arbitral tribunal (under the ICSID Convention)
Beijing Urban Construction Group Co. Ltd. v. Yemen
In Beijing Urban Construction Group Co. Ltd. v. Yemen, the arbitral tribunal stated that the so-called Broches factors used to determine the jurisdiction of ICSID under article 25 of the ICSID Convention were “the mirror image of the attribution rules in Articles 5 and 8 of the ILC’s Articles on State Responsibility”.[480] 73
[A/74/83, p. 16]
[477] 70 ICSID, Case No. ARB/11/20, Award, 19 December 2016, para. 335.
[478] 71 ICSID, Case No. ARB/12/13, Decision on Liability and the Principles of Quantum, 30 December 2016, paras. 457–458.
[479] 72 PCA, Case No. 2014–34, Award, 22 February 2017, para. 376.
[480] 73 ICSID, Case No. ARB/14/30, Decision on Jurisdiction, 31 May 2017, para. 34.
114 Article 5
UAB E Energija (Lithuania) v. Republic of Latvia
The arbitral tribunal in UAB E Energija (Lithuania) v. Republic of Latvia stated:
Like Article 4, Article 5 of the ILC Articles merely codifies a well-established rule of international law. […] There are thus three aspects to the analysis: (i) the Regulator must have exercised elements of governmental authority; (ii) it must have been empowered by the Respondent’s law to do so; and (iii) it was acting in that capacity in regulating tariffs and granting or revoking licences.[481] 74
The tribunal found that “even if Rēzeknes Siltumtīkli and Rēzeknes Enerģija had been empowered to exercise any element of governmental authority, they were not exercising such authority ‘in the particular instance’, as Article 5 requires”.[482] 75
[A/74/83, p. 16]
Georg Gavrilović and Gavrilović d.o.o. v. Republic of Croatia
The arbitral tribunal in Georg Gavrilović and Gavrilović d.o.o. v. Republic of Croatia cited article 5 of the State responsibility articles and noted that “[t]he Croatian Fund is an entity empowered by Croatian law to exercise elements of governmental authority, as exemplified above, and there is no suggestion that the Fund acted other than in its professional capacity. The Croatian Fund may thus be considered an entity within the ambit of Article 5.”[483] 76 The tribunal concluded that “the Claimants have not made out any wrongful conduct in violation of the BIT on the part of the Croatian Fund that is to be attributed to the Respondent. The principles of attribution, as codified in the ILC Articles, do not otherwise operate in respect of the Croatian Fund”.[484] 77
[A/74/83, p. 16]
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
In Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, the arbitral tribunal relied on article 5 of the State responsibility to find that:
[t]he Tribunal does not consider that the Claimant’s case is separately advanced by Article 5 of the ILC Articles in regard to EGPC [Egyptian General Petroleum Corporation] and EGAS [Egyptian Natural Gas Holding Company]. The Claimant has not established that EGPC or EGAS are ‘empowered’ by Egyptian law to exercise governmental authority … The Tribunal has not been shown any provision of Egyptian law ‘specifically authorising’ EGPC to conclude the SPA [Natural Gas Sale and Purchase Agreement] in the exercise of the Respondent’s public authority.[485] 78
[A/74/83, p. 16]
[481] 74 ICSID, Case No. ARB/12/33, Award, 22 December 2017, paras. 806–807.
[482] 75 Ibid., para. 816.
[483] 76 ICSID, Case No. ARB/12/39, Award, 26 July 2018, paras. 810–811.
[484] 77 Ibid., para. 816.
[485] 78 ICSID, Case No. ARB/14/4, Award, 31 August 2018, para. 9.114.
Article 5 115
Inter-American Court of Human Rights
Women Victims of Sexual Torture in Atenco v. Mexico
The Inter-American Court of Human Rights in Women Victims of Sexual Torture in Atenco v. Mexico recalled that under the State responsibility articles, internationally wrongful acts are attributable to the State not only when they are committed by organs of that State (under Article 4), but also when the conduct of persons or entities exercising elements of governmental authority is concerned.[486] 79
[A/74/83, p. 17]
International arbitral tribunal (under the ICSID Convention)
[Ampal-American Israel Corporation and others v. Arab Republic of Egypt
The arbitral tribunal in Ampal-American Israel Corporation and others v. Arab Republic of Egypt quoted articles 4, 5, 8 and 11 of the State responsibility articles and
formed the view that the acts or omissions of EGPC [Egyptian General Petroleum Corporation] or EGAS [Egyptian Natural Gas Holding Company] relevant to the conclusion and termination of the GSPA [Gas Sale Purchase Agreement] are attributable to the Respondent under the relevant provisions of the ILC Draft Articles on State Responsibility, which form part of the applicable customary international law.[487] 96
The tribunal further explained, referring to article 8 of the State responsibility articles, that EGPC and EGAS
were ‘in fact acting on the instructions of, or under the direction or control of’ the Respondent in relation to the particular conduct. In any event, the Tribunal finds that the Respondent subsequently ratified the termination of the GSPA and thus ‘acknowledge[d] and adopt[ed] the conduct in question as its own’ within the terms of Article 11.[488] 97
[A/74/83, p. 20]]
[Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan
The arbitral tribunal in Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan concluded, citing the text of articles 5 and 8 of the State responsibility articles, that “Lakhra’s acts related to the conclusion and execution of the Contract were directed, instructed or controlled by Pakistan, and are accordingly attributable to Pakistan”.[489] 101
[A/74/83, p. 20]]
[486] 79 IACHR, Preliminary Objection, Merits, Reparations and Costs. Series C No. 371 (Spanish), Judgment, 28 November 2018, para. 205 and footnote 303.
[487] [96 ICSID, Case No. ARB/12/11, Decision on Liability and Heads of Loss, 21 February 2017, para. 135.]
[488] [97 Ibid., para. 146.]
[489] [101 ICSID, Case No. ARB/13/1, Award, 22 August 2017, paras. 566–569 and 582.]
116 Article 5
[International arbitral tribunal (under UNCITRAL Rules)
Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria
The arbitral tribunal in Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal
Republic of Nigeria took the view that “all organs of the State, including those which have
an independent existence in domestic law, are to be treated as part of the State. This is customary
international law, and is clear in the light of the Articles”.[490] 42 The tribunal also
cited articles 1, 5, 9, 34, 36 and 38.[491] 43
[A/77/74, p. 11]]
International arbitral tribunal (under the ICSID Convention)
Ortiz Construcciones y Proyectos S.A. v. People’s Democratic Republic of Algeria
In Ortiz Construcciones y Proyectos S.A. v. People’s Democratic Republic of Algeria, the
arbitral tribunal cited the text of article 5 and the commentary thereto,[492] 54 and noted that
“jurisprudence consistently indicates that article 5 … imposes two conditions that must
both be fulfilled, namely: (i) under national law, the entity in question is authorized to
exercise elements of governmental authority, and (ii) the act in question involves the exercise
of governmental authority.”[493] 55 The tribunal noted that “acts jure gestionis of public
or private entities cannot be attributed to the State in principle under article 5, since the
article concerns precisely the determination of whether the entity in question is exercising
the functions, or elements, of governmental authority”.[494] 56
Furthermore, the tribunal noted that, despite the absence in the State responsibility
articles of a definition of the term “elements of governmental authority”, it took the view
that “this involves establishing in each case, in the light of the circumstances and evidence
of the effective exercise of elements of sovereign authority, what the situation is”,[495] 57 and
that the commentary “provides certain criteria that make it possible to identify the scope
of governmental authority, such as (i) the content of the powers, (ii) the way they are conferred
on an entity, (iii) the purposes for which they are to be exercised and (iv) the extent
to which the entity is accountable to government for their exercise”.[496] 58
[A/77/74, p. 12]
[The tribunal distinguished the application of article 8 from that of other relevant
provisions, noting that:
Conduct of entities under the effective control of the State that is unauthorized or contrary to
instructions is not in principle attributable to the State. Indeed, article 7 of the articles on State
[490] [42 Final Award, 26 March 2021, para. 72.]
[491] [43 Ibid., paras. 72 and 134–135.]
[492] 54 See footnote [381] 32 above, paras. 193 and 195–197.
[493] 55 Ibid., para. 194; see also paras. 196–197.
[494] 56 Ibid., para. 200.
[495] 57 Ibid., para. 201.
[496] 58 Ibid., para. 202.
Article 5 117
responsibility “only applies to the conduct of an organ of a State or of an entity empowered to
exercise elements of the governmental authority, i.e. only to those cases of attribution covered by
articles 4, 5 and 6.” The only exception to this rule is situations where specific instructions have been
ignored while the State was exercising effective control over the conduct in question.[497] 70
[A/77/74, p. 14]]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Strabag SE v. Libya
In Strabag SE v. Libya, the arbitral tribunal analysed whether Libya had entered into
a contract with the investor through the conduct of local authorities.[498] 59 The tribunal
considered that to interpret “Libya” as only the Government of Libya would fail to take
into account that, as noted in the commentary to article 5, “States may operate through
‘parastatal entities, which exercise elements of governmental authority in place of State
organs … ]’. The Tribunal therefore believes that [the text of the treaty] does not mean only
the Government of Libya, but may also include other Libyan bodies”.[499] 60
[A/77/74, p. 13]
Permanent Court of Arbitration (under UNCITRAL Rules)
Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
referred to article 5, noting that “[t]he concept of ‘governmental authority’ is not defined
in the ILC Articles. What, however, is required is that the law of the State authorizes an
entity to exercise some aspects of that State’s power, that is, public authority”.[500] 61
[A/77/74, p. 13]
International arbitral tribunal (under the ICSID Convention)
Interocean Oil Development Company and Interocean Oil Exploration Company v. Federal
Republic of Nigeria
In Interocean Oil Development Company and Interocean Oil Exploration Company v.
Federal Republic of Nigeria, the arbitral tribunal recalled that “[i]n principle, State-controlled
entities are considered as separate from the State, unless they exercise elements of
governmental authority within the meaning of ILC Article 5”.[501] 62
[A/77/74, p. 13]
[497] [70 Ibid., para. 248, citing James Crawford, Les articles de la C.D.I. sur la responsabilité de l’État:
Introduction, texte et commentaires (Paris, Pedone, 2003).]
[498] 59 ICSID (Additional Facility), Case No. ARB(AF)/15/1, Award, 29 June 2020, para. 168.
[499] 60 Ibid., para. 170.
[500] 61 See footnote [126] 14 above, para. 198.
[501] 62 ICSID, Case No. ARB/13/20, Award, 6 October 2020, para. 297.
118
Article 6. Conduct of organs placed at the disposal of a State by another State
The conduct of an organ placed at the disposal of a State by another State shall be considered
an act of the former State under international law if the organ is acting in the exercise
of elements of the governmental authority of the State at whose disposal it is placed.
Commentary
(1) Article 6 deals with the limited and precise situation in which an organ of a State is
effectively put at the disposal of another State so that the organ may temporarily act for its
benefit and under its authority. In such a case, the organ, originally that of one State, acts
exclusively for the purposes of and on behalf of another State and its conduct is attributed
to the latter State alone.
(2) The words “placed at the disposal of” in article 6 express the essential condition that
must be met in order for the conduct of the organ to be regarded under international law
as an act of the receiving and not of the sending State. The notion of an organ “placed at
the disposal of” the receiving State is a specialized one, implying that the organ is acting
with the consent, under the authority of and for the purposes of the receiving State. Not
only must the organ be appointed to perform functions appertaining to the State at whose
disposal it is placed, but in performing the functions entrusted to it by the beneficiary
State, the organ must also act in conjunction with the machinery of that State and under its
exclusive direction and control, rather than on instructions from the sending State. Thus
article 6 is not concerned with ordinary situations of inter-State cooperation or collaboration,
pursuant to treaty or otherwise.[502] 130
(3) Examples of situations that could come within this limited notion of a State organ
“placed at the disposal” of another State might include a section of the health service or
some other unit placed under the orders of another country to assist in overcoming an epidemic
or natural disaster, or judges appointed in particular cases to act as judicial organs
of another State. On the other hand, mere aid or assistance offered by organs of one State to
another on the territory of the latter is not covered by article 6. For example, armed forces
may be sent to assist another State in the exercise of the right of collective self-defence or
for other purposes. Where the forces in question remain under the authority of the sending
State, they exercise elements of the governmental authority of that State and not of
the receiving State. Situations can also arise where the organ of one State acts on the joint
instructions of its own and another State, or there may be a single entity which is a joint
organ of several States. In these cases, the conduct in question is attributable to both States
under other articles of this chapter.[503] 131
(4) Thus, what is crucial for the purposes of article 6 is the establishment of a functional
link between the organ in question and the structure or authority of the receiving State.
[502] 130 Thus, the conduct of Italy in policing illegal immigration at sea pursuant to an agreement
with Albania was not attributable to Albania: Xhavara and Others v. Italy and Albania, application
No. 39473/98, Eur. Court H.R., decision of 11 January 2001. Conversely, the conduct of Turkey taken
in the context of the Turkey-European Communities customs union was still attributable to Turkey:
see WTO, Report of the Panel, Turkey: Restrictions on Imports of Textile and Clothing Products
(WT/DS34/R), 31 May 1999, paras. 9.33–9.44.
[503] 131 See also article 47 and commentary.
Article 6 119
The notion of an organ “placed at the disposal” of another State excludes the case of State
organs, sent to another State for the purposes of the former State or even for shared purposes,
which retain their own autonomy and status: for example, cultural missions, diplomatic
or consular missions, foreign relief or aid organizations. Also excluded from the
ambit of article 6 are situations in which functions of the “beneficiary” State are performed
without its consent, as when a State placed in a position of dependence, territorial occupation
or the like is compelled to allow the acts of its own organs to be set aside and replaced
to a greater or lesser extent by those of the other State.[504] 132
(5) There are two further criteria that must be met for article 6 to apply. First, the organ in
question must possess the status of an organ of the sending State; and secondly its conduct
must involve the exercise of elements of the governmental authority of the receiving State.
The first of these conditions excludes from the ambit of article 6 the conduct of private
entities or individuals which have never had the status of an organ of the sending State.
For example, experts or advisers placed at the disposal of a State under technical assistance
programmes do not usually have the status of organs of the sending State. The second condition
is that the organ placed at the disposal of a State by another State must be “acting in
the exercise of elements of the governmental authority” of the receiving State. There will
only be an act attributable to the receiving State where the conduct of the loaned organ
involves the exercise of the governmental authority of that State. By comparison with the
number of cases of cooperative action by States in fields such as mutual defence, aid and
development, article 6 covers only a specific and limited notion of “transferred responsibility”.
Yet, in State practice the situation is not unknown.
(6) In the Chevreau case, a British consul in Persia, temporarily placed in charge of the
French consulate, lost some papers entrusted to him. On a claim being brought by France,
Arbitrator Beichmann held that “the British Government cannot be held responsible for
negligence by its Consul in his capacity as the person in charge of the Consulate of another
Power.”[505] 133 It is implicit in the Arbitrator’s finding that the agreed terms on which the
British Consul was acting contained no provision allocating responsibility for the Consul’s
acts. If a third State had brought a claim, the proper respondent in accordance with article
6 would have been the State on whose behalf the conduct in question was carried out.
(7) Similar issues were considered by the European Commission of Human Rights in two
cases relating to the exercise by Swiss police in Liechtenstein of “delegated” powers.[506] 134
At the relevant time Liechtenstein was not a party to the Convention for the Protection of
Human Rights and Fundamental Freedoms (European Convention on Human Rights),
so that if the conduct was attributable only to Liechtenstein no breach of the Convention
could have occurred. The Commission held the case admissible, on the basis that under
the treaty governing the relations between Switzerland and Liechtenstein of 1923, Switzerland
exercised its own customs and immigration jurisdiction in Liechtenstein, albeit with
the latter’s consent and in their mutual interest. The officers in question were governed
[504] 132 For the responsibility of a State for directing, controlling or coercing the internationally
wrongful act of another, see articles 17 and 18 and commentaries.
[505] 133 UNRIAA, vol. II (Sales No. 1949.V.1), p. 1113, at p. 1141 (1931).
[506] 134 X and Y v. Switzerland, application Nos. 7289/75 and 7349/76, decision of 14 July 1977;
Council of Europe, European Commission of Human Rights, Decisions and Reports, vol. 9, p. 57; and
Yearbook of the European Convention on Human Rights, 1977, vol. 20 (1978), p. 372, at pp. 402–406.
120 Article 6
exclusively by Swiss law and were considered to be exercising the public authority of Switzerland.
In that sense, they were not “placed at the disposal” of the receiving State.[507] 135
(8) A further, long-standing example, of a situation to which article 6 applies is the Judicial
Committee of the Privy Council, which has acted as the final court of appeal for a
number of independent States within the Commonwealth. Decisions of the Privy Council
on appeal from an independent Commonwealth State will be attributable to that State and
not to the United Kingdom. The Privy Council’s role is paralleled by certain final courts of
appeal acting pursuant to treaty arrangements.[508] 136 There are many examples of judges
seconded by one State to another for a time: in their capacity as judges of the receiving
State, their decisions are not attributable to the sending State, even if it continues to pay
their salaries.
(9) Similar questions could also arise in the case of organs of international organizations
placed at the disposal of a State and exercising elements of that State’s governmental
authority. This is even more exceptional than the inter-State cases to which article 6 is
limited. It also raises difficult questions of the relations between States and international
organizations, questions which fall outside the scope of these articles. Article 57 accordingly
excludes from the ambit of the articles all questions of the responsibility of international
organizations or of a State for the acts of an international organization. By the
same token, article 6 does not concern those cases where, for example, accused persons
are transferred by a State to an international institution pursuant to treaty.[509] 137 In cooperating
with international institutions in such a case, the State concerned does not assume
responsibility for their subsequent conduct.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
[International arbitral tribunal (under the ICSID Convention)
Swisslion DOO Skopje v. The Former Yugoslav Republic of Macedonia
In its award, the arbitral tribunal in Swisslion DOO Skopje v. The Former Yugoslav
Republic of Macedonia referred to articles 1 and 6 of the State responsibility articles in
support of the assertion that, “under customary international law, every wrongful act of
a State entails the international responsibility of that State. This covers the conduct of any
State organ, including the judiciary”.[510] 17
[See A/68/72, footnote 78 and para. 19]]
[507] 135 See also Drozd and Janousek v. France and Spain, Eur. Court H.R., Series A, No. 240 (1992),
paras. 96 and 110. See also Controller and Auditor-General v. Davison (New Zealand, Court of Appeal),
ILR, vol. 104 (1996), p. 526, at pp. 536–537 (Cooke, P.) and pp. 574–576 (Richardson, J.). An appeal to the
Privy Council on other grounds was dismissed, Brannigan v. Davison, ibid., vol. 108, p. 622.
[508] 136 For example, Agreement relating to Appeals to the High Court of Australia from the Supreme
Court of Nauru (Nauru, 6 September 1976) (United Nations, Treaty Series, vol. 1216, No. 19617, p. 151).
[509] 137 See, e.g., article 89 of the Rome Statute of the International Criminal Court.
[510] [17 See footnote [57] 17 above, para. 261, footnote 323.]
Article 6 121
European Court of Human Rights
Catan and Others v. Moldova and Russia
In its 2012 judgment in the case of Catan and Others v. Moldova and Russia, the European
Court of Human Rights referred to articles 6 and 8 of the State responsibility articles
as relevant international law.[511] 79
[A/68/72, para. 61]
International arbitral tribunal (under the ICSID Convention)
Electrabel S.A. v. The Republic of Hungary
The arbitral tribunal in Electrabel S.A. v. The Republic of Hungary referred to article 6
in considering the legal effect of a decision of the European Commission. Relying upon
article 6 and the commentary thereto, the tribunal determined that “[w]hilst the European
Union is not a State under international law, in the Tribunal’s view, it may yet by analogy
be so regarded as a Contracting Party to the [relevant treaty], for the purpose of applying
Article 6 of the ILC Articles in the present case”.[512] 80
[A/68/72, para. 62]
European Court of Human Rights
Jaloud v. The Netherlands
The European Court of Human Rights in Jaloud v. The Netherlands cited articles 2, 6
and 8 of the State responsibility articles, as well as the respective commentaries, as relevant
international law.[513] 80 In establishing jurisdiction in respect of the Netherlands, the Court
could not find that
the Netherlands’ troops were placed ‘at the disposal’ of any foreign power, whether it be Iraq or the
United Kingdom or any other power, or that they were ‘under the exclusive direction or control’
of any other State (compare, mutatis mutandis, Article 6 of the International Law Commission’s
Articles on State Responsibility).[514] 81
[A/71/80, para. 65]
International arbitral tribunal (under the ICSID Convention)
Electrabel S.A. v. Republic of Hungary
In Electrabel S.A. v. Republic of Hungary, the arbitral tribunal stated that “[w]hilst the
European Union is not a State under international law, in the Tribunal’s view, it may yet
[511] 79 ECHR, Grand Chamber, Application Nos. 43370/04, 8252/05 and 18454/06, Judgment,
19 October 2012, para. 74.
[512] 80 See footnote [314] 53 above, para. 6.74.
[513] 80 ECHR, Grand Chamber, Application No. 47708/08, Judgment, 20 November 2014, para. 98.
[514] 81 Ibid., para. 151.
122 Article 6
by analogy be so regarded as a Contracting Party to the ECT, for the purpose of applying
Article 6 of the ILC Articles in the present case”.[515] 82
[A/71/80, para. 66]
European Court of Human Rights
Big Brother Watch and others v. the United Kingdom
In Big Brother Watch and others v. the United Kingdom, the European Court of
Human Rights noted that the State responsibility articles
would only be relevant if the foreign intelligence agencies were placed at the disposal of the respondent
State and were acting in exercise of elements of the governmental authority of the respondent
State (Article 6); if the respondent State aided or assisted the foreign intelligence agencies in intercepting
the communications where that amounted to an internationally wrongful act for the State
responsible for the agencies, the United Kingdom was aware of the circumstances of the internationally
wrongful act, and the act would have been internationally wrongful if committed by the United
Kingdom (Article 16); or if the respondent State exercised direction or control over the foreign
Government (Article 17).[516] 80
[A/74/83, p. 17]
Big Brother Watch and others v. United Kingdom
In Big Brother Watch and others v. United Kingdom, the Grand Chamber of the European
Court of Human Rights stated that article 6 would be relevant in a case of interception
of communications by foreign intelligence services “if the foreign intelligence services
were placed at the disposal of the receiving State and were acting in exercise of elements of
the governmental authority of that State”.[517] 63
[A/77/74, p. 13]
[International arbitral tribunal (under the ICSID Convention)
Ortiz Construcciones y Proyectos S.A. v. People’s Democratic Republic of Algeria
The tribunal distinguished the application of article 8 from that of other relevant
provisions, noting that:
Conduct of entities under the effective control of the State that is unauthorized or contrary to
instructions is not in principle attributable to the State. Indeed, article 7 of the articles on State
responsibility “only applies to the conduct of an organ of a State or of an entity empowered to
exercise elements of the governmental authority, i.e. only to those cases of attribution covered by
[515] 82 See footnote [22] 10 above, para. 6.74.
[516] 80 ECHR, First Section, Applications Nos. 58170/13, 62322/14 and 24960/15, Judgment, 13 September
2018, para. 420.
[517] 63 ECHR, Grand Chamber, Applications No. 58170/13, No. 62322/14 and No. 24960/15, Judgment,
25 May 2021, para. 495.
Article 6 123
articles 4, 5 and 6.” The only exception to this rule is situations where specific instructions have been
ignored while the State was exercising effective control over the conduct in question.[518] 70
[A/77/74, p. 14]]
[518] [70 See footnote [381] above, para. 248, citing James Crawford, Les articles de la C.D.I. sur la
responsabilité de l’État: Introduction, texte et commentaires (Paris, Pedone, 2003).]
124
Article 7. Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity empowered to exercise
elements of the governmental authority shall be considered an act of the State under
international law if the organ, person or entity acts in that capacity, even if it exceeds
its authority or contravenes instructions.
Commentary
(1) Article 7 deals with the important question of unauthorized or ultra vires acts of State
organs or entities. It makes it clear that the conduct of a State organ or an entity empowered
to exercise elements of the governmental authority, acting in its official capacity, is attributable
to the State even if the organ or entity acted in excess of authority or contrary to instructions.
(2) The State cannot take refuge behind the notion that, according to the provisions of
its internal law or to instructions which may have been given to its organs or agents, their
actions or omissions ought not to have occurred or ought to have taken a different form. This
is so even where the organ or entity in question has overtly committed unlawful acts under
the cover of its official status or has manifestly exceeded its competence. It is so even if other
organs of the State have disowned the conduct in question.[519] 138 Any other rule would contradict
the basic principle stated in article 3, since otherwise a State could rely on its internal
law in order to argue that conduct, in fact carried out by its organs, was not attributable to it.
(3) The rule evolved in response to the need for clarity and security in international relations.
Despite early equivocal statements in diplomatic practice and by arbitral tribunals,[520] 139
State practice came to support the proposition, articulated by the British Government in
response to an Italian request, that “all Governments should always be held responsible for
all acts committed by their agents by virtue of their official capacity”.[521] 140 As the Spanish
Government pointed out: “If this were not the case, one would end by authorizing abuse, for
in most cases there would be no practical way of proving that the agent had or had not acted
on orders received.”[522] 141 At this time the United States supported “a rule of international
law that sovereigns are not liable, in diplomatic procedure, for damages to a foreigner when
arising from the misconduct of agents acting out of the range not only of their real but of
their apparent authority”.[523] 142 It is probable that the different formulations had essentially
the same effect, since acts falling outside the scope of both real and apparent authority would
[519] 138 See, e.g., the “Star and Herald” controversy, Moore, Digest, vol. VI, p. 775.
[520] 139 In a number of early cases, international responsibility was attributed to the State for the
conduct of officials without making it clear whether the officials had exceeded their authority: see, e.g.,
the following cases: “Only Son”, Moore, History and Digest, vol. IV, pp. 3404–3405; “William Lee”, ibid.,
p. 3405; and Donougho’s, ibid., vol. III, p. 3012. Where the question was expressly examined tribunals
did not consistently apply any single principle: see, e.g., the Lewis’s case, ibid., p. 3019; the Gadino case,
UNRIAA, vol. XV (Sales No. 66.V.3), p. 414 (1901); the Lacaze case, Lapradelle-Politis, vol. II, p. 290,
at pp. 297–298; and the “William Yeaton” case, Moore, History and Digest, vol. III, p. 2944, at p. 2946.
[521] 140 For the opinions of the British and Spanish Governments given in 1898 at the request of Italy in
respect of a dispute with Peru, see Archivio del Ministero degli Affari esteri italiano, serie politica P, No. 43.
[522] 141 Note verbale by Duke Almodóvar del Río, 4 July 1898, ibid.
[523] 142 “American Bible Society” incident, statement of United States Secretary of State, 17 August 1885,
Moore, Digest, vol. VI, p. 743; “Shine and Milligen”, G. H. Hackworth, Digest of International Law (Washington,
D. C., United States Government Printing Office, 1943), vol. V, p. 575; and “Miller”, ibid., pp. 570–571.
Article 7 125
not be performed “by virtue of … official capacity”. In any event, by the time of the 1930
Hague Conference, a majority of States responding to the Preparatory Committee’s request
for information were clearly in favour of the broadest formulation of the rule, providing for
attribution to the State in the case of “[a]cts of officials in the national territory in their public
capacity (actes de fonction) but exceeding their authority”.[524] 143 The Basis of Discussion prepared
by the Committee reflected this view. The Third Committee of the Conference adopted
an article on first reading in the following terms:
International responsibility is … incurred by a State if damage is sustained by a foreigner as a result
of unauthorised acts of its officials performed under cover of their official character, if the acts contravene
the international obligations of the State.[525] 144
(4) The modern rule is now firmly established in this sense by international jurisprudence,
State practice and the writings of jurists.[526] 145 It is confirmed, for example, in article 91 of
the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
protection of victims of international armed conflicts (Protocol I), which provides that:
“A Party to the conflict … shall be responsible for all acts committed by persons forming
part of its armed forces”: this clearly covers acts committed contrary to orders or instructions.
The commentary notes that article 91 was adopted by consensus and “correspond[s]
to the general principles of law on international responsibility”.[527] 146
(5) A definitive formulation of the modern rule is found in the Caire case. The case concerned
the murder of a French national by two Mexican officers who, after failing to extort
money, took Caire to the local barracks and shot him. The Commission held:
that the two officers, even if they are deemed to have acted outside their competence … and even
if their superiors countermanded an order, have involved the responsibility of the State, since they
acted under cover of their status as officers and used means placed at their disposal on account of
that status.[528] 147
(6) International human rights courts and tribunals have applied the same rule. For example,
the Inter-American Court of Human Rights in the Velásquez Rodríguez case said:
[524] 143 League of Nations, Conference for the Codification of International Law, Bases of Discussion
… (footnote [147] 88 above), point V, No. 2 (b), p. 74, and Supplement to Vol. III … (footnote [221] 104
above), pp. 3 and 17.
[525] 144 League of Nations, Conference for the Codification of International Law, Bases of Discussion
… , document C.351(c)M.145(c).1930.V (footnote [147] 88 above), p. 237. For a more detailed account of
the evolution of the modern rule, see Yearbook … 1975, vol. II, pp. 61–70.
[526] 145 For example, the 1961 revised draft by the Special Rapporteur, Mr. García Amador, provided
that “an act or omission shall likewise be imputable to the State if the organs or officials concerned exceeded
their competence but purported to be acting in their official capacity” (Yearbook … 1961, vol. II, p. 53).
[527] 146 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of
12 August 1949 (Geneva, Martinus Nijhoff, 1987), pp. 1053–1054.
[528] 147 Caire (footnote [242] 125 above). For other statements of the rule, see Maal, UNRIAA,
vol. X (Sales No. 60.V.4), pp. 732–733 (1903); La Masica, ibid., vol. XI (Sales No. 61.V.4), p. 560 (1916);
Youmans, (footnote [234] 117 above); Mallén, ibid.; Stephens, UNRIAA, vol. IV (Sales No. 1951.V.1),
pp. 267–268 (1927); and Way (footnote [231] 114 above), pp. 400–401. The decision of the United States
Court of Claims in Royal Holland Lloyd v. United States, 73 Ct. Cl. 722 (1931) (Annual Digest of Public
International Law Cases (London, Butterworth, 1938), vol. 6, p. 442) is also often cited.
126 Article 7
This conclusion [of a breach of the Convention] 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.[529] 148
(7) The central issue to be addressed in determining the applicability of article 7 to unauthorized
conduct of official bodies is whether the conduct was performed by the body in an
official capacity or not. Cases where officials acted in their capacity as such, albeit unlawfully
or contrary to instructions, must be distinguished from cases where the conduct is
so removed from the scope of their official functions that it should be assimilated to that
of private individuals, not attributable to the State. In the words of the Iran-United States
Claims Tribunal, the question is whether the conduct has been “carried out by persons
cloaked with governmental authority”.[530] 149
(8) The problem of drawing the line between unauthorized but still “official” conduct,
on the one hand, and “private” conduct on the other, may be avoided if the conduct complained
of is systematic or recurrent, such that the State knew or ought to have known of it
and should have taken steps to prevent it. However, the distinction between the two situations
still needs to be made in some cases, for example when considering isolated instances
of outrageous conduct on the part of persons who are officials. That distinction is reflected
in the expression “if the organ, person or entity acts in that capacity” in article 7. This
indicates that the conduct referred to comprises only the actions and omissions of organs
purportedly or apparently carrying out their official functions, and not the private actions
or omissions of individuals who happen to be organs or agents of the State.[531] 150 In short,
the question is whether they were acting with apparent authority.
(9) As formulated, article 7 only applies to the conduct of an organ of a State or of an
entity empowered to exercise elements of the governmental authority, i.e. only to those
cases of attribution covered by articles 4, 5 and 6. Problems of unauthorized conduct by
other persons, groups or entities give rise to distinct problems, which are dealt with separately
under articles 8, 9 and 10.
(10) As a rule of attribution, article 7 is not concerned with the question whether the conduct
amounted to a breach of an international obligation. The fact that instructions given
to an organ or entity were ignored, or that its actions were ultra vires, may be relevant
in determining whether or not the obligation has been breached, but that is a separate
issue.[532] 151 Equally, article 7 is not concerned with the admissibility of claims arising from
[529] 148 Velásquez Rodríguez (footnote [84] 63 above); see also ILR, vol. 95, p. 232, at p. 296.
[530] 149 Petrolane, Inc. v. The Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 27,
p. 64, at p. 92 (1991). See also paragraph (13) of the commentary to article 4.
[531] 150 One form of ultra vires conduct covered by article 7 would be for a State official to accept a
bribe to perform some act or conclude some transaction. The articles are not concerned with questions
that would then arise as to the validity of the transaction (cf. the 1969 Vienna Convention, art. 50). So
far as responsibility for the corrupt conduct is concerned, various situations could arise which it is not
necessary to deal with expressly in the present articles. Where one State bribes an organ of another to
perform some official act, the corrupting State would be responsible either under article 8 or article 17.
The question of the responsibility of the State whose official had been bribed towards the corrupting State
in such a case could hardly arise, but there could be issues of its responsibility towards a third party,
which would be properly resolved under article 7.
[532] 151 See ELSI (footnote [144] 85 above), especially at pp. 52, 62 and 74.
Article 7 127
internationally wrongful acts committed by organs or agents acting ultra vires or contrary
to their instructions. Where there has been an unauthorized or invalid act under local law
and as a result a local remedy is available, this will have to be resorted to, in accordance with
the principle of exhaustion of local remedies, before bringing an international claim.[533] 152
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Iran-United States Claims Tribunal
Yeager v. Islamic Republic of Iran
In its 1987 award in the Yeager v. Islamic Republic of Iran case, the Tribunal, in determining
whether an agent of Iran Air (which was controlled by the Iranian Government)
had acted in his official capacity when he had requested an additional amount of money
in order to get the claimant’s daughter onto a flight for which she had a confirmed ticket,
referred to the “widely accepted” principle codified in draft article 10 provisionally adopted
by the International Law Commission,[534] 82 and to the commentary to that provision:
It is widely accepted that the conduct of an organ of a State may be attributable to the State, even if in
a particular case the organ exceeded its competence under internal law or contravened instructions
concerning its activity. It must have acted in its official capacity as an organ, however. See International
Law Commission draft article 10. Acts which an organ commits in a purely private capacity,
even if it has used the means placed at its disposal by the State for the exercise of its function, are
not attributable to the State. See commentary on the International Law Commission draft article 10,
Yearbook of the International Law Commission, 1975, volume II, p. 61.[535] 83
The tribunal found that, in the said instance, the agent had acted in a private capacity and
not in his official capacity as an organ of Iran Air.
[A/62/62, para. 53]
[533] 152 See further article 44, subparagraph (b), and commentary.
[534] 82 This provision was amended and incorporated in article 7 finally adopted by the International
Law Commission in 2001. Draft article 10 provisionally adopted read as follows:
Article 10
Attribution to the State of conduct of organs acting outside their
competence or contrary to instructions concerning their activity
The conduct of an organ of a State, of a territorial governmental entity or of an entity
empowered to exercise elements of the governmental authority, such organ having acted in
that capacity, shall be considered as an act of the State under international law even if, in the
particular case, the organ exceeded its competence according to internal law or contravened
instructions concerning its activity. (Yearbook … 1980, vol. II (Part Two), para. 34.)
[535] 83 See footnote [204] 101 above, p. 111, para. 65.
128 Article 7
International arbitral tribunal (under the ICSID Convention)
Amco Asia Corporation and Others v. Republic of Indonesia
In its 1984 award on the merits, the arbitral tribunal constituted to hear the Amco
Indonesia Corporation and Others v. Indonesia case considered that draft article 10 provisionally
adopted by the International Law Commission (as well as draft articles 3 and 5
provisionally adopted), which it quoted in extenso, constituted “an expression of accepted
principles of international law”. The relevant passage is quoted [on page 25] above.
[A/62/62, para. 54]
International Tribunal for the Former Yugoslavia
Prosecutor v. Duško Tadić
In its 1999 judgement in the Tadić case, the Appeals Chamber, in the context of its
examination of the rules applicable for the attribution to States of acts performed by private
individuals,[536] 84 incidentally referred to draft article 10 adopted by the International
Law Commission on first reading,[537] 85 which it considered to be a restatement of “the rules
of State responsibility”:
Under the rules of State responsibility, as restated in article 10 of the draft on State responsibility as
provisionally adopted by the International Law Commission, a State is internationally accountable
for ultra vires acts or transactions of its organs. In other words it incurs responsibility even for acts
committed by its officials outside their remit or contrary to its behest. The rationale behind this
provision is that a State must be held accountable for acts of its organs whether or not these organs
complied with instructions, if any, from the higher authorities. Generally speaking, it can be maintained
that the whole body of international law on State responsibility is based on a realistic concept
of accountability, which disregards legal formalities and aims at ensuring that States entrusting
some functions to individuals or groups of individuals must answer for their actions, even when
they act contrary to their directives.[538] 86
The Appeals Chamber also indicated in this regard that:
In the case envisaged by article 10 of the draft on State responsibility (as well as in the situation envisaged
in article 7 of the same draft), State responsibility objectively follows from the fact that the individuals
who engage in certain internationally wrongful acts possess, under the relevant legislation, the
status of State officials or of officials of a State’s public entity … [I]nternational law renders any State
responsible for acts in breach of international law performed … by individuals having the formal status
of organs of a State (and this occurs even when these organs act ultra vires or contra legem) … [539] 87
[A/62/62, para. 55]
[536] 84 For the relevant passage of the Appeals Chamber’s judgement, see p. 65 above.
[537] 85 Draft article 10 adopted on first reading was amended and incorporated in article 7 finally
adopted by the International Law Commission in 2001. The text of that provision (see Yearbook …
1996, vol. II (Part Two), para. 65) was identical to that of draft article 10 provisionally adopted. (See
footnote [534] 82 above.)
[538] 86 ICTY, Appeals Chamber, Judgement, Case No. IT-94–1-A, 15 July 1999, para. 121 (footnotes
omitted).
[539] 87 Ibid., para. 123.
Article 7 129
International arbitral tribunal (under the ICSID Additional Facility Rules)
Metalclad Corporation v. United Mexican States
In its 2000 award, the arbitral tribunal constituted in accordance with chapter 11 of NAFTA
to hear the Metalclad Corporation v. Mexico case, in considering Mexico’s responsibility for
the conduct of its State and local governments (i.e., the municipality of Guadalcazar and the
State of San Luis Potosí) found that the rules of NAFTA accorded “fully with the established
position in customary international law”, and in particular with draft article 10 adopted by the
International Law Commission on first reading, which, “though currently still under consideration,
may nonetheless be regarded as an accurate restatement of the present law”.[540] 88
[A/62/62, para. 56]
ADF Group Inc. v. United States of America
In its 2003 award, the arbitral tribunal constituted in accordance with chapter 11 of
NAFTA to hear the ADF Group Inc. v. United States case, while noting that “even if the United
States measures [at issue in the case] were somehow shown or admitted to be ultra vires under
the internal law of the United States, that by itself does not necessarily render the measures
grossly unfair or inequitable under the customary international law standard of treatment
embodied in article 1105(1)” of NAFTA, stated that “[a]n unauthorized or ultra vires act of a
governmental entity of course remains, in international law, the act of the State of which the
acting entity is part, if that entity acted in its official capacity”, thereafter referring in a footnote
to article 7 finally adopted by the International Law Commission in 2001.[541] 89
[A/62/62, para. 57]
Human Rights Committee
Sarma v. Sri Lanka
In its 2003 views on communication No. 950/2000 (Sri Lanka), the Human Rights
Committee, with regard to the abduction of the son of the author of the communication
by an officer of the Sri Lankan Army, noted that “it is irrelevant in the present case that
the officer to whom the disappearance is attributed acted ultra vires or that superior officers
were unaware of the actions taken by that officer”.[542] 90 In a footnote, the Committee
referred to article 7 of the articles finally adopted by the International Law Commission,
as well as to article 2, paragraph 3, of the International Covenant on Civil and Political
Rights.[543] 91 It then concluded that, “in the circumstances, the State party is responsible
for the disappearance of the author’s son”.
[A/62/62, para. 58]
[540] 88 NAFTA (ICSID Additional Facility), Award, 30 August 2000, para. 73, reproduced in ILR,
vol. 119, p. 634.
[541] 89 NAFTA (ICSID Additional Facility), Case No. ARB(AF)/00/1, Award, 9 January 2003,
para. 190 (and footnote 184), reproduced in ICSID Review—Foreign Investment Law Journal, vol. 18,
No. 1, 2003, p. 283.
[542] 90 CCPR/C/78/D/950/2000, 31 July 2003, para. 9.2.
[543] 91 Ibid., para. 9.2, footnote 13.
130 Article 7
European Court of Human Rights
Ilaşcu and others v. Moldova and Russia
In its 2004 judgement in the Ilaşcu and others v. Moldova and Russia case, the European
Court, sitting as a Grand Chamber, in interpreting the term “jurisdiction” in article 1 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms,[544] 92
examined the issue of State responsibility and referred, inter alia, to article 7 finally adopted
by the International Law Commission in 2001 in support of its finding that a State may be
held responsible where its agents are acting ultra vires or contrary to instructions:
A State may also be held responsible even where its agents are acting ultra vires or contrary to
instructions. Under the [European] Convention [for the Protection of Human Rights and Fundamental
Freedoms], a State’s authorities are strictly liable for the conduct of their subordinates; they
are under a duty to impose their will and cannot shelter behind their inability to ensure that it is
respected (see Ireland v. the United Kingdom, judgement of 18 January 1978, Series A no. 25, p. 64,
§ 159; see also article 7 of the International Law Commission’s draft articles on the responsibility of
States for internationally wrongful acts … and the [Caire] case heard by the General Claims Commission,
(1929) Reports of International Arbitral Awards 5 (RIAA), p. 516).[545] 93
[A/62/62, para. 59]
International arbitral tribunal (under the ICSID Convention)
Noble Ventures, Inc. v. Romania
In its 2005 award, the arbitral tribunal constituted to hear the Noble Ventures, Inc. v.
Romania case, having found that the acts of a Romanian “institution of public interest”
(the State Ownership Fund (SOF), subsequently replaced by the Authority for Privatization
and Management of the State Ownership (APAPS)) were attributable to Romania, noted
that that conclusion would be the same even if those acts were regarded as ultra vires, as
established by the “generally recognized rule recorded” in article 7 finally adopted by the
International Law Commission in 2001:
Even if one were to regard some of the acts of SOF or APAPS as being ultra vires, the result would be
the same. This is because of the generally recognized rule recorded in article 7 of the 2001 International
Law Commission draft according to which the conduct of an organ of a State or of a person
or entity empowered to exercise elements of governmental authority shall be considered an act of
the State under international law if the organ, person or entity acts in that capacity, even if it exceeds
it authority or contravenes instructions. Since, from the Claimant’s perspective, SOF and APAPS
always acted as if they were entities entitled by the Respondent to do so, their acts would still have
to be attributed to the Respondent, even if an excess of competence had been shown.[546] 94
[A/62/62, para. 60]
[544] 92 Article 1 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms reads as follows:
The High Contracting Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in Section I of this Convention.
[545] 93 ECHR, Grand Chamber, Application No. 48787/99, Judgment, 8 July 2004, para. 319.
[546] 94 ICSID, Case No. ARB/01/11, Award, 12 October 2005, para. 81.
Article 7 131
Azurix Corp. v. Argentine Republic
In its 2006 award, the arbitral tribunal constituted to hear the Azurix Corp. v. Argentina
case observed that the claimant had argued that “Argentina is responsible for the
actions of the [Argentine] Province [of Buenos Aires] under the [1991 Treaty Concerning
the Reciprocal Encouragement and Protection of Investment between the Argentine
Republic and the United States of America] and customary international law”. The claimant
had referred in particular to “the responsibility of the State for acts of its organs under
customary international law and [had] cite[d], as best evidence, articles 4 and 7 of the draft
articles on responsibility of States for internationally wrongful acts of the International
Law Commission”.[547] 95 The tribunal considered, in this regard, that
[t]he responsibility of States for acts of its organs and political subdivisions is well accepted under international
law. The draft articles, as pointed out by the Claimant, are the best evidence of such acceptance and
as such have been often referred to by international arbitral tribunals in investor-State arbitration.[548] 96
[A/62/62, para. 61]
International arbitral tribunal (under the ICSID Convention)
Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia
In its award, the arbitral tribunal in Ioannis Kardassopoulos and Ron Fuchs v. The
Republic of Georgia recalled that, during the jurisdictional phase, it had found that,
according to article 7, “even in cases where an entity empowered to exercise governmental
authority acts ultra vires of it, the conduct in question is nevertheless attributable to the
State”.[549] 81 The tribunal had concluded that the Republic of Georgia could not avoid the
legal effect of its conduct by arguing that it was void ab initio under Georgian law.[550] 82
[A/68/72, para. 63]
Court of Justice of the European Union
European Commission v. Italian Republic
The opinion of Advocate General Kokott in European Commission v. Italian Republic
referred to article 7 in support of the assertion that, “even if it should be found that
the [State] officials committed a criminal offence this would not stop their actions being
imputable to the State”.[551] 83
[A/68/72, para. 64]
[547] 95 ICSID, Case No. ARB/01/12, Award, 14 July 2006, para. 46.
[548] 96 Ibid., para. 50.
[549] 81 See footnote [288] 36 above, para. 273 (quoting ICSID Case No. ARB/05/18, Decision on
Jurisdiction, 6 July 2007, para. 190).
[550] 82 Ibid., para. 273 (quoting Decision on Jurisdiction, para. 191).
[551] 83 CJEU, Case C-334/08, Opinion of Advocate General Kokott, 15 April 2010, paras. 29 and
30, and footnote 11.
132 Article 7
European Court of Human Rights
El-Masri v. The Former Yugoslav Republic of Macedonia
In its 2012 judgment in the case of El-Masri v. The Former Yugoslav Republic of Macedonia,
the European Court of Human Rights referred to articles 7, 14, 15 and 16 of the
State responsibility articles as relevant international law.[552] 84
[A/68/72, para. 65]
[International arbitral tribunal (under the ICSID Convention)
The Rompetrol Group N.V. v. Romania
The arbitral tribunal in The Rompetrol Group N.V. v. Romania referred to articles 4
and 7 when affirming that “there was no dispute that all of the authorities and agencies in
question were at all material times organs of the Romanian State, and that their conduct
was accordingly attributable to the Romanian State for the purposes of the law of State
responsibility”.[553] 47
[A/71/80, para. 40]]
European Court of Human Rights
Jones and Others v. the United Kingdom
In Jones and Others v. the United Kingdom, the European Court of Human Rights
referred to article 7 as relevant international law.[554] 84
[A/71/80, para. 67]
Husayn (Abu Zubaydah) v. Poland
In Husayn (Abu Zubaydah) v. Poland, the European Court of Human Rights listed
articles 7, 14, 15 and 16 as relevant international law.[555] 85
[A/71/80, para. 68]
Nasr et Ghali v. Italy
The European Court of Human Rights in Nasr et Ghali v. Italy referred to articles 7,
14, 15 and 16 of the State responsibility articles as relevant international law.[556] 82
[A/74/83, p. 17]
[552] 84 ECHR, Grand Chamber, Application No. 39630/09, Judgment, 13 December 2012, para. 97.
[553] [47 See footnote [17] 5 above, para. 173, footnote 298.]
[554] 84 See footnote [323] 49 above, para. 108.
[555] 85 ECHR, Former Fourth Section, Application No. 7511/13, Judgment, 24 July 2014, para. 201.
[556] 82 ECHR, Fourth Section, Application 44883/09, Judgment, 23 February 2016, para. 185.
Article 7 133
World Trade Organization Panel
United States—Anti-Dumping and Countervailing Measures on Certain Coated Paper
from Indonesia
In United States—Anti-Dumping and Countervailing Measures on Certain Coated
Paper from Indonesia, the panel cited articles 4 and 7 of the State responsibility articles,
and the commentary thereto, when stating that “it is well established under international
law that an action or conduct of a government official or entity is attributable to the State
even where that action or conduct is contrary to national law”.[557] 83
[A/74/83, p. 17]
International arbitral tribunal (under the ICSID Convention)
Georg Gavrilović and Gavrilović d.o.o. v. Republic of Croatia
In Georg Gavrilović and Gavrilović d.o.o. v. Republic of Croatia, the arbitral tribunal,
referring to article 7 of the State responsibility articles, noted that
it is not open to the State to plead the patent irregularities of a bankruptcy proceeding overseen and
authorised at critical junctures by its own court or the making of an extraordinary loan approved
by a senior government minister, which might or might not have been unlawful under Croatian
law, in opposition to the BIT claim. Put another way, if this investment was not made in conformity
with the legislation of Croatia, on the evidence before this Tribunal, this is due to the acts of organs
of the State.[558] 84
Discussing the question of legitimate expectations to ownership over property by the
claimant, the arbitral tribunal held:
[I]n Kardassopoulos the contracting entities were an organ of the State or an entity empowered to
exercise elements of the governmental authority, such that their conduct was considered an act of the
State under ILC Article 7. The concession was also signed and “ratified” by a ministry of the respondent
government. Further, some of the most senior government officials were involved in the negotiation
of the agreements. There are no comparable findings on the attribution of conduct to the Respondent
in the instant case. For example, the Tribunal finds that the contracting entity was not an entity
within the meaning of ILC Article 7, and the Respondent is not a party to the Purchase Agreement or
otherwise bound. Further, the actions of the Liquidator are not attributable to the Respondent.[559] 85
[A/74/83, p. 17]
[557] 83 WTO, Report of the Panel, WT/DS491/R, 6 December 2017, para. 7.179.
[558] 84 ICSID, Case No. ARB/12/39, Award, 26 July 2018, para. 384.
[559] 85 Ibid., para. 1009, discussing Ioannis Kardassopoulos v. Georgia, Decision on Jurisdiction
(footnote [549] 81 above).
134 Article 7
Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador discussed article 7, and the commentary thereto, when finding that a
judge had acted in his official capacity.[560] 86
[A/74/83, p. 18]
Inter-American Court of Human Rights
Villamizar Durán et al. v. Colombia
In Villamizar Durán et al. v. Colombia, the Inter-American Court of Human Rights
observed that the practice and opinio juris of States, as well as the jurisprudence of international
courts, had confirmed the existence of an exception to the “general rule” in Article 7,
namely when the organ or person was not acting in an official capacity, but rather acting
in the capacity of a private entity or person. The Court further referred to the indication in
the commentary to the provision that “the problem of drawing the line between unauthorized
but still ‘official’ conduct, on the one hand, and ‘private’ conduct on the other, may be
avoided if the conduct complained of is systematic or recurrent, such that the State knew
or ought to have known of it and should have taken steps to prevent it”.[561] 87
[A/74/83, p. 18]
Women Victims of Sexual Torture in Atenco v. Mexico
In Women Victims of Sexual Torture in Atenco v. Mexico, the Inter-American Court
of Human Rights cited Article 7 when discussing the defendant’s argument that its agents
had acted ultra vires.[562] 88
[A/74/83, p. 18]
International arbitral tribunal (under Annex VII to the 1982 United Nations
Convention on the Law of the Sea)
The “Enrica Lexie” Incident (Italy v. India)
The arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention
on the Law of the Sea in The “Enrica Lexie” Incident (Italy v. India) noted that even
if State agents were acting “ultra vires or contrary to their instructions or orders …, this
would not preclude them from enjoying immunity ratione materiae as long as they continued
to act in the name of the State and in their ‘official capacity’”. The tribunal recalled
[560] 86 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, para. 8.48.
[561] 87 IACHR, Preliminary Objection, Merits, Reparations and Costs, Series C No. 364 (Spanish),
Judgment, 20 November 2018, para. 139.
[562] 88 IACHR, Preliminary Objection, Merits, Reparations and Costs, Series C No. 371 (Spanish),
Judgment, 28 November 2018, para. 165 and footnote 237.
Article 7 135
article 7, according to which “conduct by a State organ acting in its official capacity shall be
attributable to the State ‘even if it exceeds its authority or contravenes instructions’”.[563] 64
[A/77/74, p. 14]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Strabag SE v. Libya
The arbitral tribunal in Strabag SE v. Libya analysed an argument presented by the
respondent State “to the effect that that if damage was inflicted by Libya’s military forces, it
resulted from unauthorized conduct by forces acting outside of their orders”. The tribunal
referred to the commentary to article 7, indicating that
[a]s a matter of international law, the International Law Commission affirms that the responsibility
of a State under Article 91 of Geneva Protocol I—that the State ‘shall be responsible for all acts
[committed] by persons forming part of its armed forces’—‘clearly covers acts committed contrary
to orders or instructions’.[564] 65
[A/77/74, p. 14]
[International arbitral tribunal (under the ICSID Convention)
Ortiz Construcciones y Proyectos S.A. v. People’s Democratic Republic of Algeria
The tribunal distinguished the application of article 8 from that of other relevant
provisions, noting that:
Conduct of entities under the effective control of the State that is unauthorized or contrary to
instructions is not in principle attributable to the State. Indeed, article 7 of the articles on State
responsibility “only applies to the conduct of an organ of a State or of an entity empowered to
exercise elements of the governmental authority, i.e. only to those cases of attribution covered by
articles 4, 5 and 6.” The only exception to this rule is situations where specific instructions have been
ignored while the State was exercising effective control over the conduct in question.[565] 70
[A/77/74, p. 14]]
[563] 64 See footnote [384] 34 above, para. 860.
[564] 65 See footnote [498] 59 above, para. 319.
[565] [70 See footnote [381] above, para. 248, citing James Crawford, Les articles de la C.D.I. sur la
responsabilité de l’État: Introduction, texte et commentaires (Paris, Pedone, 2003).]
136
Article 8. Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State
under international law if the person or group of persons is in fact acting on the instructions
of, or under the direction or control of, that State in carrying out the conduct.
Commentary
(1) As a general principle, the conduct of private persons or entities is not attributable to
the State under international law. Circumstances may arise, however, where such conduct
is nevertheless attributable to the State because there exists a specific factual relationship
between the person or entity engaging in the conduct and the State. Article 8 deals with
two such circumstances. The first involves private persons acting on the instructions of the
State in carrying out the wrongful conduct. The second deals with a more general situation
where private persons act under the State’s direction or control.[566] 153 Bearing in mind the
important role played by the principle of effectiveness in international law, it is necessary
to take into account in both cases the existence of a real link between the person or group
performing the act and the State machinery.
(2) The attribution to the State of conduct in fact authorized by it is widely accepted in
international jurisprudence.[567] 154 In such cases it does not matter that the person or persons
involved are private individuals nor whether their conduct involves “governmental activity”.
Most commonly, cases of this kind will arise where State organs supplement their own action
by recruiting or instigating private persons or groups who act as “auxiliaries” while remaining
outside the official structure of the State. These include, for example, individuals or groups of
private individuals who, though not specifically commissioned by the State and not forming
part of its police or armed forces, are employed as auxiliaries or are sent as “volunteers” to
neighbouring countries, or who are instructed to carry out particular missions abroad.
(3) More complex issues arise in determining whether conduct was carried out “under the
direction or control” of a State. Such conduct will be attributable to the State only if it directed
or controlled the specific operation and the conduct complained of was an integral part of that
operation. The principle does not extend to conduct which was only incidentally or peripherally
associated with an operation and which escaped from the State’s direction or control.
(4) The degree of control which must be exercised by the State in order for the conduct
to be attributable to it was a key issue in the Military and Paramilitary Activities in and
against Nicaragua case. The question was whether the conduct of the contras was attributable
to the United States so as to hold the latter generally responsible for breaches of international
humanitarian law committed by the contras. This was analysed by ICJ in terms
of the notion of “control”. On the one hand, it held that the United States was responsible
for the “planning, direction and support” given by the United States to Nicaraguan opera-
[566] 153 Separate issues are raised where one State engages in internationally wrongful conduct at
the direction or under the control of another State: see article 17 and commentary, and especially paragraph
(7) for the meaning of the words “direction” and “control” in various languages.
[567] 154 See, e.g., the Zafiro case, UNRIAA, vol. VI (Sales No. 1955.V.3), p. 160 (1925); the Stephens
case (footnote [528] 147 above), p. 267; and Lehigh Valley Railroad Company and Others (U.S.A.) v. Germany
(Sabotage cases): “Black Tom” and “Kingsland” incidents, ibid., vol. VIII (Sales No. 58.V.2), p. 84
(1930) and p. 458 (1939).
Article 8 137
tives.[568] 155 But it rejected the broader claim of Nicaragua that all the conduct of the contras
was attributable to the United States by reason of its control over them. It concluded that:
[D]espite the heavy subsidies and other support provided to them by the United States, there is no
clear evidence of the United States having actually exercised such a degree of control in all fields as
to justify treating the contras as acting on its behalf.
…
All the forms of United States participation mentioned above, and even the general control by the
respondent State over a force with a high degree of dependency on it, would not in themselves mean,
without further evidence, that the United States directed or enforced the perpetration of the acts
contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well
be committed by members of the contras without the control of the United States. For this conduct
to give rise to legal responsibility of the United States, it would in principle have to be proved that
that State had effective control of the military or paramilitary operations in the course of which the
alleged violations were committed.[569] 156
Thus while the United States was held responsible for its own support for the contras, only
in certain individual instances were the acts of the contras themselves held attributable to
it, based upon actual participation of and directions given by that State. The Court confirmed
that a general situation of dependence and support would be insufficient to justify
attribution of the conduct to the State.
(5) The Appeals Chamber of the International Tribunal for the Former Yugoslavia has
also addressed these issues. In the Tadić case, the Chamber stressed that:
The requirement of international law for the attribution to States of acts performed by private individuals
is that the State exercises control over the individuals. The degree of control may, however, vary
according to the factual circumstances of each case. The Appeals Chamber fails to see why in each
and every circumstance international law should require a high threshold for the test of control.[570] 157
The Appeals Chamber held that the requisite degree of control by the Yugoslavian “authorities
over these armed forces required by international law for considering the armed conflict
to be international was overall control going beyond the mere financing and equipping
of such forces and involving also participation in the planning and supervision of military
operations”.[571] 158 In the course of their reasoning, the majority considered it necessary
to disapprove the ICJ approach in the Military and Paramilitary Activities in and
against Nicaragua case. But the legal issues and the factual situation in the Tadić case were
different from those facing the Court in that case. The tribunal’s mandate is directed to
issues of individual criminal responsibility, not State responsibility, and the question in
that case concerned not responsibility but the applicable rules of international humanitar-
[568] 155 Military and Paramilitary Activities in and against Nicaragua (footnote [30] 36 above), p. 51,
para. 86.
[569] 156 Ibid., pp. 62 and 64–65, paras. 109 and 115. See also the concurring opinion of Judge Ago,
ibid., p. 189, para. 17.
[570] 157 Prosecutor v. Duško Tadić, International Tribunal for the Former Yugoslavia, Case
IT-94–1-A (1999), ILM, vol. 38, No. 6 (November 1999), p. 1518, at p. 1541, para. 117. For the judgment
of the Trial Chamber (Case IT-94–1-T (1997)), see ILR, vol. 112, p. 1.
[571] 158 ILM, vol. 38, No. 6 (November 1999), p. 1546, para. 145.
138 Article 8
ian law.[572] 159 In any event it is a matter for appreciation in each case whether particular
conduct was or was not carried out under the control of a State, to such an extent that the
conduct controlled should be attributed to it.[573] 160
(6) Questions arise with respect to the conduct of companies or enterprises which are
State-owned and controlled. If such corporations act inconsistently with the international
obligations of the State concerned the question arises whether such conduct is attributable
to the State. In discussing this issue it is necessary to recall that international law acknowledges
the general separateness of corporate entities at the national level, except in those
cases where the “corporate veil” is a mere device or a vehicle for fraud or evasion.[574] 161
The fact that the State initially establishes a corporate entity, whether by a special law or
otherwise, is not a sufficient basis for the attribution to the State of the subsequent conduct
of that entity.[575] 162 Since corporate entities, although owned by and in that sense subject
to the control of the State, are considered to be separate, prima facie their conduct in carrying
out their activities is not attributable to the State unless they are exercising elements
of governmental authority within the meaning of article 5. This was the position taken,
for example, in relation to the de facto seizure of property by a State-owned oil company,
in a case where there was no proof that the State used its ownership interest as a vehicle
for directing the company to seize the property.[576] 163 On the other hand, where there was
evidence that the corporation was exercising public powers,[577] 164 or that the State was
using its ownership interest in or control of a corporation specifically in order to achieve a
particular result,[578] 165 the conduct in question has been attributed to the State.[579] 166
(7) It is clear then that a State may, either by specific directions or by exercising control
over a group, in effect assume responsibility for their conduct. Each case will depend on its
own facts, in particular those concerning the relationship between the instructions given
or the direction or control exercised and the specific conduct complained of. In the text
[572] 159 See the explanation given by Judge Shahabuddeen, ibid., pp. 1614–1615.
[573] 160 The problem of the degree of State control necessary for the purposes of attribution of conduct
to the State has also been dealt with, for example, by the Iran-United States Claims Tribunal and the
European Court of Human Rights: Yeager (footnote [204] 101 above), p. 103. See also Starrett Housing
Corporation v. Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 4, p. 122, at p. 143 (1983);
Loizidou v. Turkey, Merits, Eur. Court H.R., Reports, 1996–VI, p. 2216, at pp. 2235–2236, para. 56, also
p. 2234, para. 52; and ibid., Preliminary Objections, Eur. Court H.R., Series A, No. 310, p. 23, para. 62 (1995).
[574] 161 Barcelona Traction (footnote [46] 52 above), p. 39, paras. 56–58.
[575] 162 For example, the Workers’ Councils considered in Schering Corporation v. The Islamic Republic
of Iran, Iran-U.S. C.T.R., vol. 5, p. 361 (1984); Otis Elevator Company v. The Islamic Republic of Iran, ibid.,
vol. 14, p. 283 (1987); and Eastman Kodak Company v. The Government of Iran, ibid., vol. 17, p. 153 (1987).
[576] 163 SEDCO, Inc. v. National Iranian Oil Company, ibid., vol. 15, p. 23 (1987). See also International
Technical Products Corporation v. The Government of the Islamic Republic of Iran, ibid., vol. 9, p. 206 (1985); and
Flexi-Van Leasing, Inc. v. The Government of the Islamic Republic of Iran, ibid., vol. 12, p. 335, at p. 349 (1986).
[577] 164 Phillips Petroleum Company Iran v. The Islamic Republic of Iran, ibid., vol. 21, p. 79 (1989);
and Petrolane (footnote [530] 149 above).
[578] 165 Foremost Tehran, Inc. v. The Government of the Islamic Republic of Iran, Iran-U.S. Ibid,, vol. 10,
p. 228 (1986); and American Bell International Inc. v. The Islamic Republic of Iran, ibid., vol. 12, p. 170 (1986).
[579] 166 See Hertzberg et al. v. Finland (Official Records of the General Assembly, Thirty-seventh Session,
Supplement No. 40 (A/37/40), annex XIV, communication No. R.14/61, p. 161, at p. 164, para. 9.1) (1982). See
also X v. Ireland, application No. 4125/69, Yearbook of the European Convention on Human Rights, 1971, vol. 14
(1973), p. 199; and Young, James and Webster v. the United Kingdom, Eur. Court H.R., Series A, No. 44 (1981).
Article 8 139
of article 8, the three terms “instructions”, “direction” and “control” are disjunctive; it is
sufficient to establish any one of them. At the same time it is made clear that the instructions,
direction or control must relate to the conduct which is said to have amounted to an
internationally wrongful act.
(8) Where a State has authorized an act, or has exercised direction or control over it,
questions can arise as to the State’s responsibility for actions going beyond the scope of the
authorization. For example, questions might arise if the agent, while carrying out lawful
instructions or directions, engages in some activity which contravenes both the instructions
or directions given and the international obligations of the instructing State. Such
cases can be resolved by asking whether the unlawful or unauthorized conduct was really
incidental to the mission or clearly went beyond it. In general a State, in giving lawful
instructions to persons who are not its organs, does not assume the risk that the instructions
will be carried out in an internationally unlawful way. On the other hand, where
persons or groups have committed acts under the effective control of a State, the condition
for attribution will still be met even if particular instructions may have been ignored. The
conduct will have been committed under the control of the State and it will be attributable
to the State in accordance with article 8.
(9) Article 8 uses the words “person or group of persons”, reflecting the fact that conduct
covered by the article may be that of a group lacking separate legal personality but acting
on a de facto basis. Thus while a State may authorize conduct by a legal entity such as a
corporation, it may also deal with aggregates of individuals or groups that do not have legal
personality but are nonetheless acting as a collective.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Iran-United States Claims Tribunal
Yeager v. Islamic Republic of Iran
In its 1987 award in the Yeager v. Islamic Republic of Iran case, the Tribunal, in considering
the question whether the acts of revolutionary guards were attributable to the Islamic
Republic of Iran under international law, referred to draft article 8(a) provisionally adopted
by the International Law Commission[580] 97 as a provision codifying a principle “generally
accepted in international law”:
… attributability of acts to the State is not limited to acts of organs formally recognized under internal
law. Otherwise a State could avoid responsibility under international law merely by invoking its
internal law. It is generally accepted that a State is also responsible for acts of persons, if it is established
that those persons were in fact acting on behalf of the State. See ILC draft article 8(a).[581] 98
[A/62/62, para. 62]
[580] 97 This provision was amended and incorporated in article 8 finally adopted by the International
Law Commission in 2001. It provided that: “The conduct of a person or group of persons shall
also be considered as an act of the State under international law if: (a) It is established that such person
or group of persons was in fact acting on behalf of that State; … ”.
[581] 98 See footnote [204] 101 above, p. 103, para. 42.
140 Article 8
International Tribunal for the Former Yugoslavia
Prosecutor v. Ivica Rajić (“Stupni Do”)
In its 1996 review of the indictment pursuant to rule 61 of the Rules of Procedure
and Evidence of the International Tribunal for the Former Yugoslavia in the Rajić case,
the Trial Chamber considered the issue of when a group of persons may be regarded as the
agent of a State with reference to draft article 8 adopted by the International Law Commission
on first reading:[582] 99
24. The issue of when a group of persons may be regarded as the agent of a State has been considered
frequently in the context of imposing responsibility on States for the actions of their agents. The
International Law Commission considered the issue in its 1980 draft articles on State responsibility.
Draft article 8 provides in relevant part that the conduct of a person or a group of persons shall
‘be considered as an act of the State under international law’ if ‘it is established that such person or
group of persons was in fact acting on behalf of that State’. 1980 II (Part Two) Yearbook International
Law Commission at p. 31. The matter was also addressed by the International Court of Justice in the
Nicaragua case. There, the Court considered whether the contras, who were irregular forces fighting
against the Government of Nicaragua, were agents of the United States of America in order to decide
whether the United States was liable for violations of international humanitarian law allegedly committed
by the contras. The Court held that the relevant standard was
whether the relationship was so much one of dependence on the one side and control on the other
that it would be right to equate the contras, for legal purposes, with an organ of the United States
Government, or as acting on behalf of that Government. (Nicaragua, 1986 I.C.J. Rep. ¶ 109.)
It found that the United States had financed, organized, trained, supplied and equipped the contras
and had assisted them in selecting military and paramilitary targets. These activities were not,
however, sufficient to hold the United States liable for any violations of international humanitarian
law committed by the contras.
25. The Trial Chamber deems it necessary to emphasize that the International Court of Justice in
the Nicaragua case considered the issue of agency in a very different context from the one before the
Trial Chamber in this case. First, the Court’s decision in the Nicaragua case was a final determination
of the United States’ responsibility for the acts of the contras. In contrast, the instant proceedings
are preliminary in nature and may be revised at trial. Second, in the Nicaragua case the Court
was charged with determining State responsibility for violations of international humanitarian law.
It therefore rightly focused on the United States’ operational control over the contras, holding that
[582] 99 This provision was amended and incorporated in articles 8 and 9 finally adopted by the
International Law Commission in 2001. Draft article 8 adopted on first reading read as follows:
Article 8
Attribution to the State of the conduct of persons
acting in fact on behalf of the State
The conduct of a person or group of persons shall also be considered as an act of the
State under international law if:
(a) It is established that such person or group of persons was in fact acting on behalf
of that State
(b) Such person or group of persons was in fact exercising elements of the governmental
authority in the absence of the official authorities and in circumstances which justified the
exercise of those elements of authority. (Yearbook … 1996, vol. II (Part Two), para. 65.)
Article 8 141
the ‘general control by the [United States] over a force with a high degree of dependency on [the
United States]’ was not sufficient to establish liability for violations by that force. (Nicaragua, 1986
I.C.J. Rep. ¶ 115.) In contrast, this Chamber is not called upon to determine Croatia’s liability for
the acts of the Bosnian Croats. Rather, it is required to decide whether the Bosnian Croats can be
regarded as agents of Croatia for establishing subject-matter jurisdiction over discrete acts which
are alleged to be violations of the grave breaches provisions of the Geneva Convention. Specific
operational control is therefore not critical to the inquiry. Rather, the Trial Chamber focuses on the
general political and military control exercised by Croatia over the Bosnian Croats.”[583] 100
[A/62/62, para. 63]
Prosecutor v. Duško Tadić
In its 1997 judgement in the Tadić case (which was later reviewed on appeal[584] 101), the
Trial Chamber invoked the reasoning followed by the International Court of Justice in the
case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America) with regard to the attribution to States of acts performed by
private individuals. In this context, it reproduced a passage of the separate opinion of
Judge Ago in that case, which referred to draft article 8 adopted by the International Law
Commission on first reading:
It seems clear to the Trial Chamber that the officers of non-Bosnian Serb extraction were sent as
“volunteers” on temporary, if not indefinite, assignment to the VRS [the Bosnian Serb Army]. In that
sense, they may well be considered agents of the Government of the Federal Republic of Yugoslavia
(Serbia and Montenegro). In the Nicaragua case, by contrast, no evidence was led to the effect that
United States personnel operated with or commanded troops of the contras on Nicaraguan territory.
As Judge Ago, formerly the Special Rapporteur to the International Law Commission on State
Responsibility, explained in the course of his Separate Opinion in the Nicaragua case:
[T]he negative answer returned by the Court to the Applicant’s suggestion that the misdeeds
committed by some members of the contra forces should be considered as acts imputable to the
United States of America is likewise in conformity with the provisions of the International Law
Commission’s draft [i.e., article 8 read together with article 11]. It would indeed be inconsistent
with the principles governing the question to regard members of the contra forces as persons
or groups acting in the name and on behalf of the United States of America. Only in cases
where certain members of those forces happened to have been specifically charged by United
States authorities to commit a particular act, or to carry out a particular task of some kind
on behalf of the United States, would it be possible so to regard them. Only in such instances
does international law recognize, as a rare exception to the rule, that the conduct of persons
or groups which are neither agents nor organs of a State, nor members of its apparatus even
in the broadest acceptation of that term, may be held to be acts of that State. The Judgment,
accordingly, takes a correct view when, referring in particular to the atrocities, acts of violence
or terrorism and other inhuman actions that Nicaragua alleges to have been committed by the
contras against the persons and property of civilian populations, it holds that the perpetrators
of these misdeeds may not be considered as having been specifically charged by United States
[583] 100 ICTY, Trial Chamber, Review of the Indictment pursuant to Rule 61 of the Rules of Procedure
and Evidence, Case No. IT-95–12-R61, 13 September 1996, paras. 24–25.
[584] 101 For the relevant part of the judgement of the Appeals Chamber of the International Tribunal
for the Former Yugoslavia, see [pp. 142–143] below.
142 Article 8
authorities to commit them unless, in certain concrete cases, unchallengeable proof to the
contrary has been supplied.[585] 102
[A/62/62, para. 64]
Prosecutor v. Duško Tadić
In its 1999 judgement in the Tadić case, reviewing the judgement of the Trial Chamber
referred to above, the Appeals Chamber explained the reasons why it considered that
the reasoning followed by the International Court of Justice in the case concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) with regard to the attribution to States of acts performed by private individuals
“would not seem to be consonant with the logic of the law of State responsibility”. In this
context, it referred to draft article 8 as adopted by the International Law Commission on
first reading, which it considered to reflect the “principles of international law concerning
the attribution to States of acts performed by private individuals”. Its elaboration on this
matter, which was later referred to by the International Law Commission in its commentary
to article 8 finally adopted in 2001, read as follows:
117. The principles of international law concerning the attribution to States of acts performed by
private individuals are not based on rigid and uniform criteria. These principles are reflected in article
8 of the draft on State responsibility adopted on first reading by the United Nations International
Law Commission and, even more clearly, in the text of the same provisions as provisionally adopted
in 1998 by the International Law Commission Drafting Committee. Under this article, if it is proved
that individuals who are not regarded as organs of a State by its legislation nevertheless do in fact
act on behalf of that State, their acts are attributable to the State. The rationale behind this rule is
to prevent States from escaping international responsibility by having private individuals carry out
tasks that may not or should not be performed by State officials, or by claiming that individuals
actually participating in governmental authority are not classified as State organs under national
legislation and therefore do not engage State responsibility. In other words, States are not allowed on
the one hand to act de facto through individuals and on the other to disassociate themselves from
such conduct when these individuals breach international law. The requirement of international
law for the attribution to States of acts performed by private individuals is that the State exercises
control over the individuals. The degree of control may, however, vary according to the factual circumstances
of each case. The Appeals Chamber fails to see why in each and every circumstance
international law should require a high threshold for the test of control. Rather, various situations
may be distinguished.
…
121. … Under the rules of State responsibility, as restated in article 10 of the draft on State responsibility
as provisionally adopted by the International Law Commission, a State is internationally
accountable for ultra vires acts or transactions of its organs. In other words it incurs responsibility
even for acts committed by its officials outside their remit or contrary to its behest. The rationale
behind this provision is that a State must be held accountable for acts of its organs whether or not
these organs complied with instructions, if any, from the higher authorities. Generally speaking, it
can be maintained that the whole body of international law on State responsibility is based on a realistic
concept of accountability, which disregards legal formalities and aims at ensuring that States
[585] 102 ICTY, Trial Chamber, Opinion and Judgement, Case No. IT-94–1-T, 7 May 1997, para. 601,
reproducing paragraph 16 of the Separate Opinion of Judge Ago in the case concerning Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America) (footnote [30] 36 above).
Article 8 143
entrusting some functions to individuals or groups of individuals must answer for their actions,
even when they act contrary to their directives.
122. The same logic should apply to the situation under discussion. As noted above, the situation of
an organized group is different from that of a single private individual performing a specific act on
behalf of a State. In the case of an organized group, the group normally engages in a series of activities.
If it is under the overall control of a State, it must perforce engage the responsibility of that State
for its activities, whether or not each of them was specifically imposed, requested or directed by the
State. To a large extent the wise words used by the United States-Mexico General Claims Commission
in the Youmans case with regard to State responsibility for acts of State military officials should
hold true for acts of organized groups over which a State exercises overall control.
123. What has just been said should not, of course, blur the necessary distinction between the various
legal situations described. In the case envisaged by article 10 of the draft on State responsibility (as
well as in the situation envisaged in article 7 of the same draft), State responsibility objectively follows
from the fact that the individuals who engage in certain internationally wrongful acts possess,
under the relevant legislation, the status of State officials or of officials of a State’s public entity. In
the case under discussion here, that of organized groups, State responsibility is instead the objective
corollary of the overall control exercised by the State over the group. Despite these legal differences,
the fact nevertheless remains that international law renders any State responsible for acts in breach
of international law performed (i) by individuals having the formal status of organs of a State (and
this occurs even when these organs act ultra vires or contra legem), or (ii) by individuals who make up
organized groups subject to the State’s control. International law does so regardless of whether or not
the State has issued specific instructions to those individuals. Clearly, the rationale behind this legal
regulation is that otherwise, States might easily shelter behind, or use as a pretext, their internal legal
system or the lack of any specific instructions in order to disclaim international responsibility.”[586] 103
[A/62/62, para. 65]
World Trade Organization Appellate Body
United States—Countervailing Duty Investigation on Dynamic Random Access Memory
Semiconductors (DRAMS) from Korea
In its 2005 report on United States—Countervailing Duty Investigation on Dynamic
Random Access Memory Semiconductors (DRAMS) from Korea, the Appellate Body noted
that the Republic of Korea, in support of its argument that the panel’s interpretation of
article 1.1(a)(1)(iv) of the Agreement on Subsidies and Countervailing Measures—that a
private body may be entrusted to take an action even when the action never occurs—was
legally and logically incorrect, had referred to article 8 of the articles finally adopted by the
International Law Commission in 2001. According to the Appellate Body,
Korea explains that article 8, which is entitled “Conduct directed or controlled by a State”, provides
that private conduct shall be attributed to a State only “if the person or group of persons is in fact
acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”
Korea finds “striking” the similarity of wording in the reference to “carrying out” a conduct
and submits that the requirement of conduct taking place in order to establish State responsibility
is a matter of “common sense”.[587] 104
[586] 103 ICTY, Appeals Chamber, Judgement, Case No. IT-94–1-A, 15 July 1999 (footnotes omitted).
[587] 104 WTO, Appellate Body Report, WT/DS296/AB/R, 27 June 2005, para. 69 (footnotes omitted).
144 Article 8
In interpreting the said provision of the agreement, the Appellate Body subsequently referred,
in a footnote, to the commentary by the International Law Commission to article 8:
… the conduct of private bodies is presumptively not attributable to the State. The commentaries to
the International Law Commission draft articles explain that “[s]ince corporate entities, although
owned by and in that sense subject to the control of the State, are considered to be separate, prima
facie their conduct in carrying out their activities is not attributable to the State unless they are exercising
elements of governmental authority”. (Commentaries to the International Law Commission
draft articles … , article 8, commentary, para. (6) … ).[588] 105
And later, the Appellate Body added, in another footnote:
The commentaries to the International Law Commission draft articles similarly state that “it is a
matter for appreciation in each case whether particular conduct was or was not carried out under
the control of a State, to such an extent that conduct controlled should be attributed to it”. (Commentaries
to the International Law Commission draft articles … , article 8, commentary, para. (5),
… (footnote omitted).[589] 106
[A/62/62, para. 66]
International arbitral tribunal (under UNCITRAL rules)
Encana Corporation v. Republic of Ecuador
In its 2006 award, the arbitral tribunal constituted to hear the EnCana Corp. v. Ecuador
case under the Canada-Ecuador investment treaty and the UNCITRAL arbitration
rules, quoted, inter alia, article 8 finally adopted by the International Law Commission in
2001. The relevant passage is quoted [on page 103] above.
[A/62/62, para. 67]
International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro)
In its 2007 judgment in the Genocide case, the Court, in examining the question
whether the massacres committed at Srebrenica were attributable, in whole or in part, to
the Respondent, after having found that these acts had not been perpetrated by organs
of the latter, went on to examine whether the same acts had been committed under the
direction or control of the Respondent. The Court noted, with reference to article 8 finally
adopted by the International Law Commission in 2001, that
398. On this subject the applicable rule, which is one of customary law of international responsibility,
is laid down in Article 8 of the ILC Articles on State Responsibility …
399. This provision must be understood in the light of the Court’s jurisprudence on the subject,
particularly that of the 1986 Judgment in the case concerning Military and Paramilitary Activities
[588] 105 Ibid., para. 112, footnote 179.
[589] 106 Ibid., para. 116, footnote 188.
Article 8 145
in and against Nicaragua (Nicaragua v. United States of America) … In that Judgment the Court,
… after having rejected the argument that the contras were to be equated with organs of the United
States because they were ‘completely dependent’ on it, added that the responsibility of the Respondent
could still arise if it were proved that it had itself ‘directed or enforced the perpetration of the
acts contrary to human rights and humanitarian law alleged by the applicant State’ (I.C.J. Reports
1986, p. 64, para. 115); this led to the following significant conclusion:
‘For this conduct to give rise to legal responsibility of the United States, it would in principle
have to be proved that that State had effective control of the military or paramilitary operations
in the course of which the alleged violations were committed.’ (Ibid., p. 65.)
400. The test thus formulated differs in two respects from the test [described in paragraphs 390–395
of the judgment] to determine whether a person or entity may be equated with a State organ even
if not having that status under internal law. First, in this context it is not necessary to show that
the persons who performed the acts alleged to have violated international law were in general in a
relationship of ‘complete dependence’ on the respondent State; it has to be proved that they acted in
accordance with that State’s instructions or under its ‘effective control’. It must however be shown
that this ‘effective control’ was exercised, or that the State’s instructions were given, in respect of
each operation in which the alleged violations occurred, not generally in respect of the overall
actions taken by the persons or groups of persons having committed the violations.
401. The Applicant has, it is true, contended that the crime of genocide has a particular nature, in that
it may be composed of a considerable number of specific acts separate, to a greater or lesser extent, in
time and space. According to the Applicant, this particular nature would justify, among other consequences,
assessing the ‘effective control’ of the State allegedly responsible, not in relation to each of these
specific acts, but in relation to the whole body of operations carried out by the direct perpetrators of the
genocide. The Court is however of the view that the particular characteristics of genocide do not justify
the Court in departing from the criterion elaborated in the Judgment in the case concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (see paragraph
399 above). The rules for attributing alleged internationally wrongful conduct to a State do not
vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis.
Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive
of genocide that have been committed by organs or persons other than the State’s own agents were
carried out, wholly or in part, on the instructions or directions of the State, or under its effective control.
This is the state of customary international law, as reflected in the ILC Articles on State Responsibility.
402. The Court notes however that the Applicant has … questioned the validity of applying, in
the present case, the criterion adopted in the Military and Paramilitary Activities Judgment. It has
drawn attention to the Judgment of the ICTY Appeals Chamber in the Tadić case (IT-94–1-A, Judgment,
15 July 1999). In that case the Chamber did not follow the jurisprudence of the Court in the
Military and Paramilitary Activities case: it held that the appropriate criterion, applicable in its view
both to the characterization of the armed conflict in Bosnia and Herzegovina as international, and
to imputing the acts committed by Bosnian Serbs to the FRY [Federal Republic of Yugoslavia] under
the law of State responsibility, was that of the ‘overall control’ exercised over the Bosnian Serbs by
the FRY; and further that that criterion was satisfied in the case (on this point, ibid., para. 145). In
other words, the Appeals Chamber took the view that acts committed by Bosnian Serbs could give
rise to international responsibility of the FRY on the basis of the overall control exercised by the FRY
over the Republika Srpska and the VRS [the army of the Republika Srpska], without there being any
need to prove that each operation during which acts were committed in breach of international law
was carried out on the FRY’s instructions, or under its effective control.
403. The Court has given careful consideration to the Appeals Chamber’s reasoning in support of
the foregoing conclusion, but finds itself unable to subscribe to the Chamber’s view. First, the Court
observes that the ICTY was not called upon in the Tadić case, nor is it in general called upon, to rule
146 Article 8
on questions of State responsibility, since its jurisdiction is criminal and extends over persons only.
Thus, in that Judgment the Tribunal addressed an issue which was not indispensable for the exercise
of its jurisdiction. As stated above, the Court attaches the utmost importance to the factual and legal
findings made by the ICTY in ruling on the criminal liability of the accused before it and, in the
present case, the Court takes fullest account of the ICTY’s trial and appellate judgments dealing with
the events underlying the dispute. The situation is not the same for positions adopted by the ICTY on
issues of general international law which do not lie within the specific purview of its jurisdiction and,
moreover, the resolution of which is not always necessary for deciding the criminal cases before it.
404. This is the case of the doctrine laid down in the Tadić Judgment. Insofar as the ‘overall control’
test is employed to determine whether or not an armed conflict is international, which was the
sole question which the Appeals Chamber was called upon to decide, it may well be that the test is
applicable and suitable; the Court does not however think it appropriate to take a position on the
point in the present case, as there is no need to resolve it for purposes of the present Judgment. On
the other hand, the ICTY presented the ‘overall control’ test as equally applicable under the law of
State responsibility for the purpose of determining—as the Court is required to do in the present
case—when a State is responsible for acts committed by paramilitary units, armed forces which are
not among its official organs. In this context, the argument in favour of that test is unpersuasive.
405. It should first be observed that logic does not require the same test to be adopted in resolving the
two issues, which are very different in nature: the degree and nature of a State’s involvement in an armed
conflict on another State’s territory which is required for the conflict to be characterized as international,
can very well, and without logical inconsistency, differ from the degree and nature of involvement
required to give rise to that State’s responsibility for a specific act committed in the course of the conflict.
406. It must next be noted that the ‘overall control’ test has the major drawback of broadening the
scope of State responsibility well beyond the fundamental principle governing the law of international
responsibility: a State is responsible only for its own conduct, that is to say the conduct of
persons acting, on whatever basis, on its behalf. That is true of acts carried out by its official organs,
and also by persons or entities which are not formally recognized as official organs under internal
law but which must nevertheless be equated with State organs because they are in a relationship of
complete dependence on the State. Apart from these cases, a State’s responsibility can be incurred
for acts committed by persons or groups of persons—neither State organs nor to be equated with
such organs—only if, assuming those acts to be internationally wrongful, they are attributable to it
under the rule of customary international law reflected in Article 8 cited above (paragraph 398). This
is so where an organ of the State gave the instructions or provided the direction pursuant to which
the perpetrators of the wrongful act acted or where it exercised effective control over the action
during which the wrong was committed. In this regard the ‘overall control’ test is unsuitable, for it
stretches too far, almost to breaking point, the connection which must exist between the conduct of
a State’s organs and its international responsibility.
407. Thus it is on the basis of its settled jurisprudence that the Court will determine whether the
Respondent has incurred responsibility under the rule of customary international law set out in
Article 8 of the ILC Articles on State Responsibility.[590] 6
The Court concluded thereafter that the relevant acts could not be attributed to the
Respondent on this basis.[591] 7
[A/62/62/Add.1, para. 3]
[590] 6 [ICJ, Judgment, I.C.J. Reports 2007, p. 43], paras. 398–407.
[591] 7 The Court did consider it necessary to decide whether articles 5, 6, 9 and 11 finally adopted
by the International Law Commission in 2001 expressed present customary international law, it being
clear that none of them applied in the case ([ibid.], para. 414).
Article 8 147
[International arbitral tribunal (under the ICSID Convention)
Gustav F W Hamester GmbH & Co KG v. Republic of Ghana
In its award, the arbitral tribunal constituted to hear the Gustav F W Hamester GmbH
& Co KG v. Republic of Ghana case indicated that “[i]n order for an act to be attributed
to a State, it must have a close link to the State”.[592] 56 Referring to articles 4, 5, and 8, the
tribunal stated that such a link could result when “the person performing the act is part
of the State’s organic structure (Article 4); or is utilising the State’s specific governmental
powers to perform such act, even if it is a separate entity (Article 5); or is acting under the
effective control … of the State, even if it is a private or public party (Article 8)”.[593] 57 The
tribunal noted that, under article 5, “[i]t is clear that two cumulative conditions have to
be present [for attribution]: an entity empowered with governmental authority; and an act
performed through the exercise of governmental authority”.[594] 58
The tribunal also distinguished the attribution analysis under article 5 from the analysis
under article 8, indicating that “attribution or non-attribution under Article 8 [was]
independent of the status of [the entity], and dependent only on whether the acts were
performed ‘on the instructions of, or under the direction or control’ of that State”.[595] 59
[See A/68/72, footnote 85 and paras. 45–48]]
[World Trade Organization Appellate Body
United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products
from China
In its report in the United States—Definitive Anti-Dumping and Countervailing Duties on
Certain Products from China case, the Appellate Body considered whether the rules of attribution
contained in the State responsibility articles are “relevant rules of international law applicable
in the relations between the parties”.[596] 64 The Appellate Body held that, “[t]o the extent
that Articles 4, 5 and 8 of the ILC Articles concern[ed] the same subject matter as [a provision]
of the SCM Agreement, they would be ‘relevant’ in the sense of the Vienna Convention [on the
Law of Treaties]”.[597] 65 The Appellate Body indicated that both the State responsibility articles
and the SCM Agreement “set out rules relating to the question of attribution of conduct to a
State”, though it noted “certain differences” in their respective approach to attribution.[598] 66
Concerning whether the State responsibility articles are “rules of international law
… applicable in the relations between the parties”, the Appellate Body noted that “Articles
4, 5 and 8 are not binding by virtue of being part of an international treaty. However, inso-
[592] [56 See footnote [105] 20 above, para. 172.]
[593] [57 Ibid.]
[594] [58 Ibid., paras. 175–177.]
[595] [59 Ibid., para. 198.]
[596] [64 See footnote [13] 11 above, paras. 307 et seq. (quoting the Vienna Convention on the Law
of Treaties, art. 31(3)(c)).]
[597] [65 Ibid., para. 308.]
[598] [66 Ibid., para. 309.]
148 Article 8
far as they reflect customary international law or general principles of law, these Articles
are applicable in the relations between the parties”.[599] 67
[See A/68/72, footnote 85 and paras. 50–51]]
[International arbitral tribunal (under the ICSID Convention)
Alpha Projektholding GmbH v. Ukraine
The arbitral tribunal in Alpha Projektholding GmbH v. Ukraine referred to articles 4, 5 and
8 as part of its analysis of the question of attribution. The tribunal concluded that the conduct of
a “State organ … is clearly attributable to the State under Article 4(1) of the ILC Articles”.[600] 39
[See A/68/72, footnote 85 and para. 34]]
International Tribunal for the Law of the Sea (Seabed Disputes Chamber)
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area
In its advisory opinion on Responsibilities and Obligations of States Sponsoring Persons
and Entities with Respect to Activities in the Area, the Seabed Disputes Chamber referred
to the commentary to article 8 in support of the assertion that, “while it is not considered
reasonable to make a State liable for each and every violation committed by persons under
its jurisdiction, it is equally not considered satisfactory to rely on mere application of the
principle that the conduct of private persons or entities is not attributable to the State under
international law”.[601] 86
[A/68/72, para. 66]
International arbitral tribunal (under UNCITRAL Rules)
White Industries Australia Limited v. The Republic of India
In its award, the arbitral tribunal in White Industries Australia Limited v. The Republic
of India referred to articles 4, 5 and 8 as part of its analysis of the question of attribution.
The tribunal found that the claimant properly conceded that it was not relying on articles
4 or 5 as the entity in question was “patently[] not an organ of the state within the meaning
of Article 4, nor [did] it exercise elements of Governmental authority within the meaning
of Article 5.”[602] 87
The tribunal determined that, under article 8, the salient attribution issue “turn[ed]
on whether the facts in the record support a conclusion of whether [the entity] was in
[599] [67 Ibid., para. 308; see below the text accompanying footnote [2156] 203 for discussion of the
Appellate Body’s consideration of whether articles 4, 5 and 8 of the State responsibility articles would “be
superseded by … the SCM Agreement as lex specialis regarding attribution pursuant to Article 55 of the
ILC Articles”; ibid., para. 314.]
[600] [39 See footnote [293] 39, para. 401.]
[601] 86 See footnote [12] 10 above, para. 112 (citing para. (1) of the commentary to article 8).
[602] 87 See footnote [303] 87 above, para. 8.1.2.
Article 8 149
fact acting on the instructions of or under the direction or control of India”.[603] 88 The
tribunal further noted that the test under article 8 “is a tough one”,[604] 89 “involves a high
threshold”,[605] 90 and “excludes from consideration matters of organisational structure and
‘consultation’ on operational or policy matters”.[606] 91
In addition, the tribunal took note of the International Court of Justice’s “effective
control” test, as well as the discussion of the test in the context of state-owned and controlled
enterprises in the commentary to article 8.[607] 92 On the basis of that test, the tribunal
determined that the claimant had to “show that India had both general control over
[the entity] as well as specific control over the particular acts in question”.[608] 93
[A/68/72, paras. 67–69]
European Court of Human Rights
Catan and Others v. Moldova and Russia
In its 2012 judgment in the case of Catan and Others v. Moldova and Russia, the European
Court of Human Rights referred to articles 6 and 8 of the State responsibility articles
as relevant international law.[609] 94
[A/68/72, para. 70]
[International arbitral tribunal (under the ICSID Convention)
Bosh International, Inc. v. B & P Ltd. Foreign Investments Enterprise
In its 2012 award, the arbitral tribunal constituted to hear the Bosh International, Inc.
v. B & P Ltd. Foreign Investments Enterprise case referred to article 8 in its analysis of the
term “Party” as found in the relevant bilateral investment treaty. The tribunal concluded
that, in the BIT provision at issue, the term “Party” refers “to any situation where the Party
is acting qua State”, namely “where the conduct of entities can be attributed to the Parties
(under, for instance, Articles 4, 5 or 8 of the ILC Articles on State Responsibility) … ”.[610] 75
[See A/68/72, footnote 85 and para. 60]]
[603] 88 Ibid., paras. 8.1.3–8.1.4 and 8.1.7.
[604] 89 Ibid., para. 8.1.4.
[605] 90 Ibid., para. 8.1.10.
[606] 91 Ibid., para. 8.1.8.
[607] 92 Ibid., paras. 8.1.11–8.1.15 (quoting ICJ, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, pp. 62, 65, paras. 109
and 115; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 208, para. 400, as
well as paras. (4) and (6) of the commentary to article 8).
[608] 93 Ibid., para. 8.1.18.
[609] 94 See footnote [511] 79 above.
[610] [75 See footnote [310] 75 above, para. 246.]
150 Article 8
[International arbitral tribunal (under UNCITRAL Rules)
Claimants v. Slovak Republic
The arbitral tribunal in Claimants v. Slovak Republic, indicated that “there are three
possible bases for attribution of wrongful acts to a State. They are found in Articles 4, 5 and
8 of the Articles on State Responsibility of the International Law Commission … ”.[611] 46
[See A/68/72, footnote 85 and para. 38]]
International arbitral tribunal (under the ICSID Convention)
Electrabel S.A. v. The Republic of Hungary
In its decision on jurisdiction, applicable law and liability, the arbitral tribunal in
Electrabel S.A. v. The Republic of Hungary relied upon the State responsibility articles as
a codification of the customary international law relevant to attribution.[612] 95 Largely on
the basis of article 8 and its accompanying commentary, the tribunal determined that “[a]
lthough the conduct of private persons or entities is not attributable to the State under
international law as a general principle, factual circumstances could establish a special
relationship between the person engaging in the conduct and the State”.[613] 96
The tribunal indicated that, as “expressed in the clearest possible terms in the ILC
Commentary under Article 8”, a State acting “through a State-owned or State controlled
company over which it exercises some influence is by itself insufficient for the acts of
such entities to be attributed to the State”.[614] 97 As a result, the tribunal found that it was
required to assess whether the “private entity” at issue was acting either under the instruction
or direction and control of the Hungarian Government.[615] 98
[A/68/72, paras. 71–72]
Teinver S.A., et al. v. The Argentine Republic
The arbitral tribunal in Teinver S.A., et al. v. The Argentine Republic, in its 2012 decision
on jurisdiction, referred to articles 4, 5 and 8 as part of its consideration of whether
the acts of certain labour unions were attributable to the Argentine Republic. As a result of
the “fact-intensive nature of [the claimants’] allegations”, the tribunal decided to postpone
adjudication of the attribution issue until the merits phase.[616] 99 Nonetheless, the tribunal
accepted the assertion of both parties “that article 8, and not articles 4 and 5, would be
relevant to the analysis of the unions’ conduct … ”.[617] 100
[A/68/72, para. 73]
[611] [46 See footnote [305] 46 above.]
[612] 95 See footnote [314] 53 above, para. 7.60.
[613] 96 Ibid., para. 7.71, and paras. 7.64, 7.66 and 7.68.
[614] 97 Ibid., para. 7.95.
[615] 98 Ibid., paras. 7.64–7.71.
[616] 99 See footnote [315] 99 above, para. 274.
[617] 100 Ibid., para. 275.
Article 8 151
[European Court of Human Rights
Jaloud v. The Netherlands
The European Court of Human Rights in Jaloud v. The Netherlands cited articles 2, 6
and 8 of the State responsibility articles, as well as the respective commentaries, as relevant
international law.[618] 80 In establishing jurisdiction in respect of the Netherlands, the Court
could not find that “the Netherlands’ troops were placed ‘at the disposal’ of any foreign
power, whether it be Iraq or the United Kingdom or any other power, or that they were
‘under the exclusive direction or control’ of any other State (compare, mutatis mutandis,
Article 6 of the International Law Commission’s Articles on State Responsibility”).[619] 81
[A/71/80, para. 65]]
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
The arbitral tribunal in Hulley Enterprises Limited (Cyprus) v. The Russian Federation
recited the text of article 8 and noted that
[t]he commentary to Article 8 observes that: ‘Questions arise with respect to the conduct of companies
or enterprises which are State owned and controlled … The fact that the State initially establishes
a corporate entity … is not a sufficient basis for the attribution to the State of the subsequent
conduct of that entity. … Since corporate entities, although owned by and in that sense subject to
the control of the State, are considered to be separate, prima facie their conduct in carrying out their
activities is not attributable to the State unless they are exercising elements of governmental authority
… [and] the instructions, direction or control [of the State] must relate to the conduct which is
said to have amounted to an internationally wrongful act’.[620] 87
[A/71/80, para. 69]
European Court of Human Rights
Samsonov v. Russia
In Samsonov v. Russia, the European Court of Human Rights considered article 8, and
the commentary thereto, as relevant international law.[621] 88 In assessing whether the conduct
of a company could be attributed to the State, the Court held that “[l]a Cour doit examiner
de manière effective le contrôle que l’État a excercé dans les circonstances de l’espèce. De
l’avis de la Cour, cette approche est conforme tant à sa jurisprudence antérieure … qu’à
l’interprétation donnée par la CDI à l’article 8 des articles sur la responsabilité de l’État”.[622] 89
[A/71/80, para. 70]
[618] [80 ECHR, Grand Chamber, Application No. 47708/08, Judgment, 20 November 2014, para. 98.]
[619] [81 Ibid., para. 151.]
[620] 87 See footnote [19] 7 above, para. 1466 (quoting para. (6) of the commentary to article 8).
[621] 88 See footnote [20] 8 above, paras. 30–32 for further references to the State responsibility articles.
[622] 89 Ibid., para. 73.
152 Article 8
Liseytseva and Maslov v. Russia
In Liseytseva and Maslov v. Russia, the European Court of Human Rights listed article
5 and the text and commentary to article 8, as relevant international law.[623] 90 The
Court also observed that the question of the independence of the municipalities was to
be determined with regard to the actual factual manner of the control exerted over them
by the State in the particular case, noting that “this approach is consistent with the ILC’s
interpretation of the aforementioned Article 8 of the Articles on State Responsibility”.[624] 91
[A/71/80, para. 71]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Lao Holdings N.V. v. Lao People’s Democratic Republic
In Lao Holdings N.V. v. Lao People’s Democratic Republic, the arbitral tribunal referred
to the commentary to article 8 in support of the proposition that “a minority shareholding
in a corporation is not sufficient in international law (as well as domestic law), of itself, to
attribute the acts of a corporation to its shareholders. The result is no different where the
minority shareholder is a Government”.[625] 92 It also partly relied on article 8 in finding
that “corporate acts may be attributed to the Government if the Government directs and
controls the corporation’s activities”.[626] 93
[A/71/80, para. 72]
International arbitral tribunal (under the ICSID Convention)
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal held
that the simple encouragement of private persons by the Government, without evidence of
a direct order or control, “would not meet the test set out in Article 8”.[627] 94
[A/71/80, para. 73]
Adel A Hamadi Al Tamimi v. Sultanate of Oman
In Adel A Hamadi Al Tamimi v. Sultanate of Oman, the arbitral tribunal observed that
the State responsibility articles “set out a number of grounds on which attribution may be
based. The ILC Articles suggest that responsibility may be imputed to a State where the
[623] 90 See footnote [21] 9 above, para. 128.
[624] 91 Ibid., para. 205 (see also para. 130, in which the Court refers to ECHR, Grand Chamber,
Kotov v. Russia, Application No. 54522/00, Judgment, 3 April 2012, paras. 30–32 for a summary of other
relevant provisions of the State responsibility articles).
[625] 92 ICSID (Additional Facility), Case No. ARB(AF)/12/6, Decision on the Merits, 10 June 2015,
para. 81.
[626] 93 Ibid., para. 82.
[627] 94 See footnote [114] 24 above, para. 448.
Article 8 153
conduct of a person or entity is closely directed or controlled by the State, although the
parameters of imputability on this basis remain the subject of debate”.[628] 95
[A/71/80, para. 74]
Electrabel S.A. v. Republic of Hungary
The arbitral tribunal in Electrabel S.A. v. Republic of Hungary relied on the commentary
to article 8 to observe that “the fact that a State acts through a State-owned or Statecontrolled
company over which it exercises some influence is by itself insufficient for the
acts of such entities to be attributed to the State”.[629] 96 The tribunal stated that an “invitation
to negotiate cannot be assimilated to an instruction” in the sense of article 8, which would
have allowed for the attribution of conduct of the company in question to Hungary.[630] 97
Referring to article 8, the tribunal also found that Hungary did not use “its ownership interest
in or control of a corporation specifically in order to achieve a particular result”.[631] 98
[A/71/80, para. 75]
Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey
The arbitral tribunal in Tulip Real Estate and Development Netherlands B.V. v. Republic
of Turkey stated that “[p]lainly, the words ‘instructions’, ‘direction’ and ‘control’ in Art.
8 are to be read disjunctively. Therefore, the arbitral tribunal need only be satisfied that
one of those elements is present in order for there to be attribution under Art. 8”.[632] 99 The
tribunal accepted the respondent’s submission that the relevant test was that of “effective
control”.[633] 100 It confirmed “that it is insufficient for the purposes of attribution under
Art 8 to establish merely that Emlak was majority-owned by TOKI, i.e., a part of the
State”.[634] 101 The tribunal further noted that for attribution of conduct under article 8,
there must be “proof that the State used its control as a vehicle directed towards achieving
a particular result in its sovereign interests”.[635] 102 The ad hoc committee subsequently
constituted to decide on the annulment of the award confirmed this interpretation with
reference to the commentary to article 8.[636] 103
[A/71/80, para. 76]
[628] 95 See footnote [340] 66 above, footnote 673 (quoting para. (6) of the commentary to article 8)
(footnote omitted).
[629] 96 See footnote [22] 10 above, para. 7.95 (see also paras. 7.63–7.71, quoting article 8 and the
commentary in detail).
[630] 97 Ibid. para. 7.111.
[631] 98 Ibid., para. 7.137 (quoting para. (6) of the commentary to article 8).
[632] 99 See footnotes [210] 40 and [128] 16 above, para. 303.
[633] 100 Ibid., para. 304.
[634] 101 Ibid., para. 306 (quoting para. (6) of the commentary to article 8).
[635] 102 Ibid., para. 326.
[636] 103 See footnote [115] 25 above, paras. 187–189.
154 Article 8
[Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
The arbitral tribunal in Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
referred to articles 4, 5 and 8 of the State responsibility articles when stating that “[i]n order
for an act to be attributed to a State, it must have a close link to the State”.[637] 52]
[A/74/83, p. 12]]
[Beijing Urban Construction Group Co. Ltd. v. Yemen
In Beijing Urban Construction Group Co. Ltd. v. Yemen, the arbitral tribunal stated
that the so-called Broches factors used to determine the jurisdiction of ICSID under article
25 of the ICSID Convention were “the mirror image of the attribution rules in Articles 5
and 8 of the ILC’s Articles on State Responsibility”.[638] 73
[A/74/83, p. 16]]
Permanent Court of Arbitration (under UNCITRAL Rules)
Mesa Power Group v. Government of Canada
In Mesa Power Group v. Government of Canada, “[h]aving concluded that the OPA
[Ontario Power Authority], Hydro One and IESO [Independent Electricity System Operator]
are state enterprises and that Article 1503(2) of the NAFTA governs attribution, the
Tribunal [could] dispense with reviewing whether their acts are attributable to Canada
pursuant to Article 8 of the ILC Articles”.[639] 90
[A/74/83, p. 19]
International arbitral tribunal (under the ICSID Additional Facility Rules)
MNSS B.V. and Recupero Credito Acciaio N.V. v. Montenegro
The arbitral tribunal in MNSS B.V. and Recupero Credito Acciaio N.V. v. Montenegro,
observed that mere acts of supervision do not place a private bank “under the Central
Bank’s control for the purposes of Article 8 of the ILC Articles … It follows, therefore, that
the Respondent is not responsible for Prva Banka’s actions in this respect”.[640] 91
[A/74/83, p. 19]
Permanent Court of Arbitration (under UNCITRAL Rules)
Mr. Kristian Almås and Mr. Geir Almås v. The Republic of Poland
The arbitral tribunal in Mr. Kristian Almås and Mr. Geir Almås v. The Republic of
Poland found “no evidence that ANR [Polish Agricultural Property Agency] acted under
[637] [52 ICSID, Case No. ARB/14/1, Award, 16 May 2018, para. 168.]
[638] [73 ICSID, Case No. ARB/14/30, Decision on Jurisdiction, 31 May 2017, para. 34.]
[639] 90 PCA, Case No. 2012–17, Award, 24 March 2016, para. 365.
[640] 91 ICSID (Additional Facility), Case No. ARB(AF)/12/8, Award, 4 May 2016, para. 299.
Article 8 155
Poland’s instructions, direction or control when terminating the Lease, and correspondingly
no basis for attribution under Article 8”.[641] 92
[A/74/83, p. 19]
CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom
Devas Mauritius Limited v. The Republic of India
In CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom
Devas Mauritius Limited v. The Republic of India, the arbitral tribunal found that “Antrix’s
notice of annulment is attributable to the Respondent under Article 8 of the ILC Articles”.[642] 93
[A/74/83, p. 19]
International arbitral tribunal (under the ICSID Convention)
Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela
In Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela, the
arbitral tribunal stated that “it is a well-established principle under international law that,
in general, the conduct of private persons or entities is not attributable to the State. This
general principle is clearly reflected, inter alia, in Article 8 of the ILC Draft Articles”.[643] 94
The tribunal considered that “even though members of the SINPROTRAC union may have
actually taken President Chávez ‘at his word,’ […] they did not act ‘on the instructions of,
or under the direction or control of ’ President Chávez within the meaning of Article 8 of
the ILC Draft Articles”.[644] 95
[A/74/83, p. 19]
Ampal-American Israel Corporation and others v. Arab Republic of Egypt
The arbitral tribunal in Ampal-American Israel Corporation and others v. Arab Republic
of Egypt quoted articles 4, 5, 8 and 11 of the State responsibility articles and
formed the view that the acts or omissions of EGPC [Egyptian General Petroleum Corporation] or
EGAS [Egyptian Natural Gas Holding Company] relevant to the conclusion and termination of the
GSPA [Gas Sale Purchase Agreement] are attributable to the Respondent under the relevant provisions
of the ILC Draft Articles on State Responsibility, which form part of the applicable customary
international law.[645] 96
The tribunal further explained, referring to article 8 of the State responsibility articles,
that EGPC and EGAS
[641] 92 PCA, Case No. 2015–13, Award, 27 June 2016, para. 272.
[642] 93 PCA, Case No. 2013–09, Award on Jurisdiction and Merits, 25 July 2016, para. 290.
[643] 94 ICSID, Case No. ARB/12/13, Decision on Liability and the Principles of Quantum,
30 December 2016, para.448.
[644] 95 Ibid., para.453.
[645] 96 ICSID, Case No. ARB/12/11, Decision on Liability and Heads of Loss, 21 February 2017, para. 135.
156 Article 8
were ‘in fact acting on the instructions of, or under the direction or control of ’ the Respondent in relation
to the particular conduct. In any event, the Tribunal finds that the Respondent subsequently
ratified the termination of the GSPA and thus ‘acknowledge[d] and adopt[ed] the conduct in question
as its own’ within the terms of Article 11.[646] 97
[A/74/83, p. 20]
Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The
Argentine Republic
In Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v.
The Argentine Republic, the arbitral tribunal, observing that the parties had agreed that
article 8 of the State responsibility articles was applicable to the facts of the case,[647] 98 disagreed
“that the conduct of the unions of which the Claimant complain can be attributed
to Respondent”.[648] 99 The tribunal further reiterated that the appropriate test to be applied
was “effective control” and not “overall control”.[649] 100
[A/74/83, p. 20]
Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan
The arbitral tribunal in Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of
Pakistan concluded, citing the text of articles 5 and 8 of the State responsibility articles,
that “Lakhra’s acts related to the conclusion and execution of the Contract were directed,
instructed or controlled by Pakistan, and are accordingly attributable to Pakistan”.[650] 101
[A/74/83, p. 20]
Koch Minerals Sàrl and Koch Nitrogen International Sàrl v. Bolivarian Republic of Venezuela
In Koch Minerals Sàrl and Koch Nitrogen International Sàrl v. Bolivarian Republic of
Venezuela the arbitral tribunal determined that
FertiNitro [a series of joint venture companies] remained fully and effectively controlled by the
Respondent, whereby FertiNitro was precluded by the Respondent from making any further ad hoc
sales to KNI [the claimant] from 28 February 2012, just as it had been precluded from performing
the Offtake Agreement from 11 October 2010 onwards. Throughout, FertiNitro (with Pequiven)
thus acted under the Respondent’s ‘direction or control’ within the meaning of Article 8 of the ILC
Articles on State Responsibility.[651] 102
[A/74/83, p. 20]
[646] 97 Ibid., para. 146.
[647] 98 See footnote [355] 45 above, para. 721.
[648] 99 Ibid., para. 724.
[649] 100 Ibid., paras. 722 and 724.
[650] 101 ICSID, Case No. ARB/13/1, Award, 22 August 2017, paras. 566–569 and 582.
[651] 102 ICSID, Case No. ARB/11/19, Award, 30 October 2017, para. 7.46.
Article 8 157
UAB E Energija (Lithuania) v. Republic of Latvia
In UAB E Energija (Lithuania) v. Republic of Latvia, the arbitral tribunal cited article 8
and the commentary thereto when affirming that “the Respondent instructed, directed or
controlled Rēzeknes Siltumtīkli’s or Rēzeknes Enerģija’s bringing of the litigation which
resulted in [the claimant’s] bank accounts being frozen”.[652] 103
[A/74/83, p. 20]
Georg Gavrilović and Gavrilović d.o.o. v. Republic of Croatia
The arbitral tribunal in Georg Gavrilović and Gavrilović d.o.o. v. Republic of Croatia,
quoted article 8 and noted that “[a]n ‘effective control’ test has emerged in international
jurisprudence, which requires both a general control of the State over the person or entity
and a specific control of the State over the act of attribution which is at stake”.[653] 104
The tribunal explained that “due to the change in the control of Holding d.o.o. when the
Emergency Board was appointed on 12 July 1991, it is necessary to consider whether the
Respondent exercised ‘effective control’ before and/or after this date”[654] 105 and held that
“Holding d.o.o. does not fall within Article 8 of the ILC Articles”.[655] 106
[A/74/83, p. 21]
Marfin Investment Group Holding S.A., Alexandros Bakatselos and Others v. Republic of Cyprus
The tribunal in Marfin Investment Group Holding S.A., Alexandros Bakatselos and
Others v. Republic of Cyprus discussed the relevant case law on article 8 of the State
responsibility articles and “note[d] that arbitral jurisprudence has consistently upheld the
standard set by the ICJ. The Tribunal sees no reason to depart from this jurisprudence
constante.”[656] 107 The tribunal observed that:
… Claimants have not demonstrated with evidence that these specific acts that they challenge were
directed or controlled by Respondent. The evidence put forward by Claimants attempts to show
Respondent’s overall control over Laiki, but does not contain instructions or directions emanating
from the Cypriot Government that Laiki and/or its Board of Directors adopt a specific conduct. For
this reason alone, Claimants’ case on attribution under ILC Article 8 must fail.[657] 108
The tribunal further stated that even if it “were to adopt a less stringent test for attribution
under ILC Article 8—a test which this Tribunal does not endorse—this would not
assist Claimants’ case”.[658] 109 In particular, “[t]o the Tribunal, it is not sufficient for the
Board of Directors to elect an executive who enjoyed the trust of the regulator in order to
[652] 103 ICSID, Case No. ARB/12/33, Award, 22 December 2017, paras. 825 and 830.
[653] 104 ICSID, Case No. ARB/12/39, Award, 26 July 2018, para. 828.
[654] 105 Ibid., para. 829.
[655] 106 Ibid., para. 831.
[656] 107 ICSID, Case No. ARB/13/27, Award, 26 July 2018, para. 675 (original emphasis).
[657] 108 Ibid., para. 679.
[658] 109 Ibid., para. 680.
158 Article 8
establish attribution under ILC Article 8”.[659] 110 Furthermore, “any coordination in strategies
between Laiki and Cyprus as regards the financial crisis likewise does not support
Claimants’ contention that Respondent had complete control over the Bank”.[660] 111 Finally,
the Tribunal recall[ed] that the mere ownership of shares in Laiki by the Cypriot Government, along
with the powers that this ownership entails, does not establish attribution under ILC Article 8.
Claimants remain bound by the obligation to demonstrate that the challenged conduct was carried
out under the instructions, direction or control of Cyprus.[661] 112
[A/74/83, p. 21]
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
In Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, the tribunal stated that
[u]nder Article 8 of the ILC Articles on State Responsibility, the conduct of a person (not being an
organ of the State) shall be considered an act of a State under international law if the person is in
fact acting on the instructions of, or under the direction or control of, that State in carrying out the
conduct. Its application, as the ILC Commentary states, depends upon ‘a specific factual relationship’
between the person engaging in the conduct and the State … Moreover, there is a distinction
to be drawn between the conduct of the State itself and the conduct of a person attributable to the
State, as was held by the ICJ in Nicaragua v. USA.[662] 113
The tribunal did not consider that the acts of the Egyptian General Petroleum Corporation
and the Egyptian Natural Gas Holding Company were attributable to the respondent
“within the meaning of Article 8 of the ILC Articles”.[663] 114
[A/74/83, p. 22]
Ortiz Construcciones y Proyectos S.A. v. People’s Democratic Republic of Algeria
In Ortiz Construcciones y Proyectos S.A. v. People’s Democratic Republic of Algeria, the
arbitral tribunal cited article 8,[664] 66 recalling that the commentary thereto clarified that “the
three terms ‘instructions’, ‘direction’ and ‘control’ are disjunctive” and that “it is sufficient
to establish any one of them”.[665] 67 The tribunal analysed the degree of State control required
over a company to apply article 8, and considered “that a mere recommendation or encouragement
is not sufficient to satisfy the criterion of instruction.”[666] 68 Instead, “there are two
elements to determining effective control: first, determining whether the entity in question
is under the general control of the State, and, second, determining whether the State has
exercised specific control during the act whose attribution to the State is being sought”.[667] 69
[659] 110 Ibid., para. 685.
[660] 111 Ibid., para. 687.
[661] 112 Ibid., para. 691.
[662] 113 ICSID, Case No. ARB/14/4, Award, 31 August 2018, para. 9.116.
[663] 114 Ibid., paras. 9.117–9.118.
[664] 66 See footnote [381] 32 above, para. 238.
[665] 67 Ibid., para. 239.
[666] 68 Ibid., para. 242.
[667] 69 Ibid., para. 247.
Article 8 159
The tribunal distinguished the application of article 8 from that of other relevant
provisions, noting that:
Conduct of entities under the effective control of the State that is unauthorized or contrary to
instructions is not in principle attributable to the State. Indeed, article 7 of the articles on State
responsibility “only applies to the conduct of an organ of a State or of an entity empowered to
exercise elements of the governmental authority, i.e. only to those cases of attribution covered by
articles 4, 5 and 6.” The only exception to this rule is situations where specific instructions have been
ignored while the State was exercising effective control over the conduct in question.[668] 70
[A/77/74, p. 14]
World Trade Organization Panel
Saudi Arabia—Measures concerning the Protection of Intellectual Property Rights
The panel established in Saudi Arabia—Measures concerning the Protection of Intellectual
Property Rights cited article 8, indicating that
[t]he fact that acts or omissions of private parties ‘may involve some element of private choice’ does
not negate the possibility of those acts or omissions being attributable to a [WTO] Member insofar
as they reflect decisions that are not independent of one or more measures taken by a government
(or other organ of the Member).[669] 71
[A/77/74, p. 15]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Strabag SE v. Libya
In analysing whether a contract entered into by local authorities could be considered
contracts of the State, the arbitral tribunal in Strabag SE v. Libya considered, among other factors,
the nature of the entities involved and of the contracts, and “the circumstances surrounding
the conclusion and implementation of the contracts”. It took the view that the entities had
“acted at the direction of Libyan State organs” and, therefore, “[a]s confirmed by Article 8 of
the ILC Draft Articles, their conduct has to be considered as an act of the Libyan State”.[670] 72
[A/77/74, p. 15]
International arbitral tribunal (under the ICSID Convention)
Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan
The arbitral tribunal in Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti.
v. Turkmenistan referred to article 8, noting that the commentary “shows that the mere
ownership of shares in a State-owned company is not sufficient in order to establish attri-
[668] 70 Ibid., para. 248, citing James Crawford, Les articles de la C.D.I. sur la responsabilité de l’État:
Introduction, texte et commentaires (Paris, Pedone, 2003).
[669] 71 See footnote [385] 35 above, para. 7.51.
[670] 72 See footnote [498] 59 above, para. 176.
160 Article 8
bution under ILC Article 8”.[671] 73 In that case, no evidence had been adduced “that would
demonstrate that Respondent was exercising both a general control over these entities at
all relevant times and that it specifically controlled these same entities in connection with
specific acts challenged in these proceedings”.[672] 74 Instead, the tribunal was unconvinced
that the acts and omissions of the entities, which were “not State organs”, were “attributable
to the State pursuant to Article 8 of the ILC Articles”, as it had not been shown that the
entities had, “at all relevant times, acted ‘on the instructions of, or under the direction or
control of, that State in carrying out the conduct’”.[673] 75
[A/77/74, p. 15]
Inter-American Court of Human Rights
Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and their families
v. Brazil
In Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and their
families v. Brazil, the Inter-American Court of Human Rights addressed the attribution
of State responsibility for the violation of the rights to life and to personal integrity resulting
from especially hazardous activities, including the production of fireworks. It cited
article 8, noting that “it is possible to attribute responsibility to the State in the case of
… conduct that is under its direction or control”.[674] 76 In this case, the Court found, that
“[r]egarding this activity, owing to the specific risks that it involved for the life and integrity
of the individual, the State had the obligation to regulate, supervise and oversee its exercise,
to prevent the violation of the rights of those who were working in this sector”.[675] 77
[A/77/74, p. 15]
European Court of Human Rights
Carter v. Russia
In Carter v. Russia, the European Court of Human Rights referred to article 8, noting
that “a factor indicative of State responsibility” for a particular operation would be that the
conduct of the individuals involved in that operation “was directed or controlled by any
State entity or official”.[676] 78
[A/77/74, p. 16]
[671] 73 See footnote [128] 16 above, para. 775.
[672] 74 Ibid., para. 776.
[673] 75 Ibid., para. 777.
[674] 76 IACHR, Series C, No. 407, Judgment (Preliminary Objections, Merits, Reparations and
Costs), 15 July 2020, para. 121 (footnote 202).
[675] 77 Ibid., para. 121.
[676] 78 ECHR, Third Section, Application No. 20914/07, Judgment, 28 February 2022, para. 166.
161
Article 9. Conduct carried out in the absence or default of the official authorities
The conduct of a person or group of persons shall be considered an act of a State
under international law if the person or group of persons is in fact exercising elements
of the governmental authority in the absence or default of the official authorities and in
circumstances such as to call for the exercise of those elements of authority.
Commentary
(1) Article 9 deals with the exceptional case of conduct in the exercise of elements of the
governmental authority by a person or group of persons acting in the absence of the official
authorities and without any actual authority to do so. The exceptional nature of the
circumstances envisaged in the article is indicated by the phrase “in circumstances such
as to call for”. Such cases occur only rarely, such as during revolution, armed conflict or
foreign occupation, where the regular authorities dissolve, are disintegrating, have been
suppressed or are for the time being inoperative. They may also cover cases where lawful
authority is being gradually restored, e.g. after foreign occupation.
(2) The principle underlying article 9 owes something to the old idea of the levée en masse,
the self-defence of the citizenry in the absence of regular forces:[677] 167 in effect it is a form
of agency of necessity. Instances continue to occur from time to time in the field of State
responsibility. Thus the position of the Revolutionary Guards or “Komitehs” immediately
after the revolution in the Islamic Republic of Iran was treated by the Iran-United States
Claims Tribunal as covered by the principle expressed in article 9. Yeager concerned, inter
alia, the action of performing immigration, customs and similar functions at Tehran airport
in the immediate aftermath of the revolution. The tribunal held the conduct attributable
to the Islamic Republic of Iran, on the basis that, if it was not actually authorized by
the Government, then the Guards:
at least exercised elements of governmental authority in the absence of official authorities, in operations
of which the new Government must have had knowledge and to which it did not specifically object.[678] 168
(3) Article 9 establishes three conditions which must be met in order for conduct to be
attributable to the State: first, the conduct must effectively relate to the exercise of elements
of the governmental authority, secondly, the conduct must have been carried out in the
absence or default of the official authorities, and thirdly, the circumstances must have been
such as to call for the exercise of those elements of authority.
(4) As regards the first condition, the person or group acting must be performing governmental
functions, though they are doing so on their own initiative. In this respect, the nature
of the activity performed is given more weight than the existence of a formal link between the
actors and the organization of the State. It must be stressed that the private persons covered
by article 9 are not equivalent to a general de facto Government. The cases envisaged by article
9 presuppose the existence of a Government in office and of State machinery whose place
[677] 167 This principle is recognized as legitimate by article 2 of the Regulations respecting the Laws
and Customs of War on Land (annexed to the Hague Conventions II of 1899 and IV of 1907 respecting
the Laws and Customs of War on Land); and by article 4, paragraph A (6), of the Geneva Convention
relative to the Treatment of Prisoners of War of 12 August 1949.
[678] 168 Yeager (footnote [204] 101 above), p. 104, para. 43.
162 Article 9
is taken by irregulars or whose action is supplemented in certain cases. This may happen on
part of the territory of a State which is for the time being out of control, or in other specific
circumstances. A general de facto Government, on the other hand, is itself an apparatus of
the State, replacing that which existed previously. The conduct of the organs of such a Government
is covered by article 4 rather than article 9.[679] 169
(5) In respect of the second condition, the phrase “in the absence or default of” is intended
to cover both the situation of a total collapse of the State apparatus as well as cases
where the official authorities are not exercising their functions in some specific respect,
for instance, in the case of a partial collapse of the State or its loss of control over a certain
locality. The phrase “absence or default” seeks to capture both situations.
(6) The third condition for attribution under article 9 requires that the circumstances must
have been such as to call for the exercise of elements of the governmental authority by private
persons. The term “call for” conveys the idea that some exercise of governmental functions
was called for, though not necessarily the conduct in question. In other words, the circumstances
surrounding the exercise of elements of the governmental authority by private persons
must have justified the attempt to exercise police or other functions in the absence of
any constituted authority. There is thus a normative element in the form of agency entailed
by article 9, and this distinguishes these situations from the normal principle that conduct
of private parties, including insurrectionary forces, is not attributable to the State.[680] 170
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Iran-United States Claims Tribunal
Yeager v. Islamic Republic of Iran
In its 1987 award in the Yeager v. Islamic Republic of Iran case, the Tribunal, in considering
the question whether the acts of revolutionary guards were attributable to the Islamic
Republic of Iran under international law, referred to draft article 8(b) provisionally adopted
by the International Law Commission:[681] 107
… attributability of acts to the State is not limited to acts of organs formally recognized under
internal law. Otherwise a State could avoid responsibility under international law merely by invoking
its internal law … . An act is attributable even if a person or group of persons was in fact merely
exercising elements of governmental authority in the absence of the official authorities and in cir-
[679] 169 See, e.g., the award of 18 October 1923 by Arbitrator Taft in the Tinoco case (footnote [146] 87
above), pp. 381–382. On the responsibility of the State for the conduct of de facto governments, see also
J. A. Frowein, Das de facto-Regime im Völkerrecht (Cologne, Heymanns, 1968), pp. 70–71. Conduct of a
government in exile might be covered by article 9, depending on the circumstances.
[680] 170 See, e.g., the Sambiaggio case, UNRIAA, vol. X (Sales No. 60.V.4), p. 499, at p. 512 (1904);
see also article 10 and commentary.
[681] 107 This provision was amended and incorporated in article 9 finally adopted by the International
Law Commission in 2001. Article 8(b) provisionally adopted read as follows: “The conduct of a
person or group of persons shall also be considered as an act of the State under international law if: …
(b) Such person or group of persons was in fact exercising elements of the governmental authority in the
absence of the official authorities and in circumstances which justified the exercise of those elements of
authority.” (Yearbook … 1980, vol. II (Part Two), para. 34.)
Article 9 163
cumstances which justified the exercise of those elements of authority. See International Law Commission
draft article 8(b).[682] 108
[A/62/62, para. 68]
International arbitral tribunal (under UNCITRAL Rules)
Sergei Paushok et al. v. The Government of Mongolia
The arbitral tribunal in Sergei Paushok et al. v. The Government of Mongolia referred
to articles 4, 5 and 9 as constituting “international law rules of attribution” applicable to
the dispute “which are generally considered as representing current customary international
law”.[683] 101
[A/68/72, para. 74]
African Court of Human Rights and Peoples’ Rights
African Commission on Human and Peoples’ Rights v. Libya
In African Commission on Human and Peoples’ Rights v. Libya, the African Court
of Human Rights and Peoples’ Rights determined, while expressing “aware[ness] of the
volatile political and security situation in Libya” cited article 9 of the State responsibility
articles and found that it “is competent ratione personae to hear the instant case”.[684] 115
[A/74/83, p. 22]
[682] 108 See footnote [204] 101 above, p. 103, para. 42.
[683] 101 See footnote [299] 41 above, para. 576.
[684] 115 ACHPR, Application No. 002/2013, Judgment on Merits, 3 June 2016, paras. 50 and 52.
164
Article 10. Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement which becomes the new Government
of a State shall be considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing
a new State in part of the territory of a pre-existing State or in a territory under
its administration shall be considered an act of the new State under international law.
3. This article is without prejudice to the attribution to a State of any conduct,
however related to that of the movement concerned, which is to be considered an act of
that State by virtue of articles 4 to 9.
Commentary
(1) Article 10 deals with the special case of attribution to a State of conduct of an insurrectional
or other movement which subsequently becomes the new Government of the
State or succeeds in establishing a new State.
(2) At the outset, the conduct of the members of the movement presents itself purely as the
conduct of private individuals. It can be placed on the same footing as that of persons or
groups who participate in a riot or mass demonstration and it is likewise not attributable
to the State. Once an organized movement comes into existence as a matter of fact, it will
be even less possible to attribute its conduct to the State, which will not be in a position to
exert effective control over its activities. The general principle in respect of the conduct of
such movements, committed during the continuing struggle with the constituted authority,
is that it is not attributable to the State under international law. In other words, the acts of
unsuccessful insurrectional movements are not attributable to the State, unless under some
other article of chapter II, for example in the special circumstances envisaged by article 9.
(3) Ample support for this general principle is found in arbitral jurisprudence. International
arbitral bodies, including mixed claims commissions[685] 171 and arbitral tribunals[686] 172 have
uniformly affirmed what Commissioner Nielsen in the Solis case described as a “well-established
principle of international law”, that no Government can be held responsible for the
conduct of rebellious groups committed in violation of its authority, where it is itself guilty
of no breach of good faith, or of no negligence in suppressing insurrection.[687] 173 Diplomatic
practice is remarkably consistent in recognizing that the conduct of an insurrectional movement
cannot be attributed to the State. This can be seen, for example, from the preparatory
work for the 1930 Hague Conference. Replies of Governments to point IX of the request for
information addressed to them by the Preparatory Committee indicated substantial agreement
that: (a) the conduct of organs of an insurrectional movement could not be attributed as
such to the State or entail its international responsibility; and (b) only conduct engaged in by
[685] 171 See the decisions of the various mixed commissions: Zuloaga and Miramon Governments,
Moore, History and Digest, vol. III, p. 2873; McKenny case, ibid., p. 2881; Confederate States, ibid.,
p. 2886; Confederate Debt, ibid., p. 2900; and Maximilian Government, ibid., p. 2902, at pp. 2928–2929.
[686] 172 See, e.g., British Claims in the Spanish Zone of Morocco (footnote [38] 44 above), p. 642; and
the Iloilo Claims, UNRIAA, vol. VI (Sales No. 1955.V.3), p. 158, at pp. 159–160 (1925).
[687] 173 UNRIAA, vol. IV (Sales No. 1951.V.1), p. 358, at p. 361 (1928) (referring to Home Frontier
and Foreign Missionary Society, ibid., vol. VI (Sales No. 1955.V.3), p. 42 (1920)); cf. the Sambiaggio case
(footnote [680] 170 above), p. 524.
Article 10 165
organs of the State in connection with the injurious acts of the insurgents could be attributed
to the State and entail its international responsibility, and then only if such conduct constituted
a breach of an international obligation of that State.[688] 174
(4) The general principle that the conduct of an insurrectional or other movement is not
attributable to the State is premised on the assumption that the structures and organization
of the movement are and remain independent of those of the State. This will be the case
where the State successfully puts down the revolt. In contrast, where the movement achieves
its aims and either installs itself as the new Government of the State or forms a new State
in part of the territory of the pre-existing State or in a territory under its administration, it
would be anomalous if the new regime or new State could avoid responsibility for conduct
earlier committed by it. In these exceptional circumstances, article 10 provides for the attribution
of the conduct of the successful insurrectional or other movement to the State. The
basis for the attribution of conduct of a successful insurrectional or other movement to the
State under international law lies in the continuity between the movement and the eventual
Government. Thus the term “conduct” only concerns the conduct of the movement as such
and not the individual acts of members of the movement, acting in their own capacity.
(5) Where the insurrectional movement, as a new Government, replaces the previous
Government of the State, the ruling organization of the insurrectional movement becomes
the ruling organization of that State. The continuity which thus exists between the new
organization of the State and that of the insurrectional movement leads naturally to the
attribution to the State of conduct which the insurrectional movement may have committed
during the struggle. In such a case, the State does not cease to exist as a subject
of international law. It remains the same State, despite the changes, reorganizations and
adaptations which occur in its institutions. Moreover, it is the only subject of international
law to which responsibility can be attributed. The situation requires that acts committed
during the struggle for power by the apparatus of the insurrectional movement should be
attributable to the State, alongside acts of the then established Government.
(6) Where the insurrectional or other movement succeeds in establishing a new State,
either in part of the territory of the pre-existing State or in a territory which was previously
under its administration, the attribution to the new State of the conduct of the
insurrectional or other movement is again justified by virtue of the continuity between the
organization of the movement and the organization of the State to which it has given rise.
Effectively the same entity which previously had the characteristics of an insurrectional
or other movement has become the Government of the State it was struggling to establish.
The predecessor State will not be responsible for those acts. The only possibility is that the
new State be required to assume responsibility for conduct committed with a view to its
own establishment, and this represents the accepted rule.
(7) Paragraph 1 of article 10 covers the scenario in which the insurrectional movement,
having triumphed, has substituted its structures for those of the previous Government of
the State in question. The phrase “which becomes the new Government” is used to describe
this consequence. However, the rule in paragraph 1 should not be pressed too far in the
case of governments of national reconciliation, formed following an agreement between
the existing authorities and the leaders of an insurrectional movement. The State should
[688] 174 League of Nations, Conference for the Codification of International Law, Bases of Discussion …
(footnote [147] 88 above), p. 108; and Supplement to Volume III … (footnote [221] 104 above), pp. 3 and 20.
166 Article 10
not be made responsible for the conduct of a violent opposition movement merely because,
in the interests of an overall peace settlement, elements of the opposition are drawn into
a reconstructed government. Thus, the criterion of application of paragraph 1 is that of a
real and substantial continuity between the former insurrectional movement and the new
Government it has succeeded in forming.
(8) Paragraph 2 of article 10 addresses the second scenario, where the structures of the
insurrectional or other revolutionary movement become those of a new State, constituted
by secession or decolonization in part of the territory which was previously subject to the
sovereignty or administration of the predecessor State. The expression “or in a territory
under its administration” is included in order to take account of the differing legal status
of different dependent territories.
(9) A comprehensive definition of the types of groups encompassed by the term “insurrectional
movement” as used in article 10 is made difficult by the wide variety of forms which
insurrectional movements may take in practice, according to whether there is relatively
limited internal unrest, a genuine civil war situation, an anti-colonial struggle, the action
of a national liberation front, revolutionary or counter-revolutionary movements and so
on. Insurrectional movements may be based in the territory of the State against which the
movement’s actions are directed, or on the territory of a third State. Despite this diversity,
the threshold for the application of the laws of armed conflict contained in the Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of
victims of non-international armed conflicts (Protocol II) may be taken as a guide. Article 1,
paragraph 1, refers to “dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of [the relevant State’s] territory
as to enable them to carry out sustained and concerted military operations and to
implement this Protocol”, and it contrasts such groups with “situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence and other acts of
a similar nature” (art. 1, para. 2). This definition of “dissident armed forces” reflects, in the
context of the Protocols, the essential idea of an “insurrectional movement”.
(10) As compared with paragraph 1, the scope of the attribution rule articulated by paragraph
2 is broadened to include “insurrectional or other” movements. This terminology
reflects the existence of a greater variety of movements whose actions may result in the
formation of a new State. The words do not, however, extend to encompass the actions of
a group of citizens advocating separation or revolution where these are carried out within
the framework of the predecessor State. Nor does it cover the situation where an insurrectional
movement within a territory succeeds in its agitation for union with another
State. This is essentially a case of succession, and outside the scope of the articles, whereas
article 10 focuses on the continuity of the movement concerned and the eventual new
Government or State, as the case may be.
(11) No distinction should be made for the purposes of article 10 between different categories
of movements on the basis of any international “legitimacy” or of any illegality in respect of
their establishment as a Government, despite the potential importance of such distinctions in
other contexts.[689] 175 From the standpoint of the formulation of rules of law governing State
responsibility, it is unnecessary and undesirable to exonerate a new Government or a new State
[689] 175 See H. Atlam, “National liberation movements and international responsibility”, United
Nations Codification of State Responsibility, B. Simma and M. Spinedi, eds. (New York, Oceana, 1987), p. 35.
Article 10 167
from responsibility for the conduct of its personnel by reference to considerations of legitimacy
or illegitimacy of its origin.[690] 176 Rather, the focus must be on the particular conduct in
question, and on its lawfulness or otherwise under the applicable rules of international law.
(12) Arbitral decisions, together with State practice and the literature, indicate a general
acceptance of the two positive attribution rules in article 10. The international arbitral
decisions, e.g. those of the mixed commissions established in respect of Venezuela (1903)
and Mexico (1920–1930), support the attribution of conduct by insurgents where the movement
is successful in achieving its revolutionary aims. For example, in the Bolívar Railway
Company claim, the principle is stated in the following terms:
The nation is responsible for the obligations of a successful revolution from its beginning, because in
theory, it represented ab initio a changing national will, crystallizing in the finally successful result.[691] 177
The French-Venezuelan Mixed Claims Commission in its decision concerning the French
Company of Venezuelan Railroads case emphasized that the State cannot be held responsible
for the acts of revolutionaries “unless the revolution was successful”, since such acts
then involve the responsibility of the State “under the well-recognized rules of public
law”.[692] 178 In the Pinson case, the French-Mexican Claims Commission ruled that:
if the injuries originated, for example, in requisitions or forced contributions demanded … by revolutionaries
before their final success, or if they were caused … by offences committed by successful
revolutionary forces, the responsibility of the State … cannot be denied.[693] 179
(13) The possibility of holding the State responsible for the conduct of a successful insurrectional
movement was brought out in the request for information addressed to Governments
by the Preparatory Committee for the 1930 Hague Conference. On the basis of
replies received from a number of Governments, the Preparatory Committee drew up the
following Basis of Discussion: “A State is responsible for damage caused to foreigners by
an insurrectionist party which has been successful and has become the Government to
the same degree as it is responsible for damage caused by acts of the Government de jure
or its officials or troops.” [694] 180 Although the proposition was never discussed, it may be
considered to reflect the rule of attribution now contained in paragraph 2.
(14) More recent decisions and practice do not, on the whole, give any reason to doubt the
propositions contained in article 10. In one case the Supreme Court of Namibia went even
[690] 176 As ICJ said, “[p]hysical control of a territory, and not sovereignty or legitimacy of title, is
the basis of State liability for acts affecting other States”, Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), Advisory Opinion, I.C.J. Reports 1971, p. 16, at p. 54, para. 118.
[691] 177 UNRIAA, vol. IX (Sales No. 59.V.5), p. 445, at p. 453 (1903). See also Puerto Cabello and
Valencia Railway Company, ibid., p. 510, at p. 513 (1903).
[692] 178 Ibid., vol. X (Sales No. 60.V.4), p. 285, at p. 354 (1902). See also the Dix case, ibid., vol. IX
(Sales No. 59.V.5), p. 119 (1902).
[693] 179 Ibid., vol. V (Sales No. 1952.V.3), p. 327, at p. 353 (1928).
[694] 180 League of Nations, Conference for the Codification of International Law, Bases of Discussion
… (footnote [147] 88 above), pp. 108 and 116; and Basis of discussion No. 22 (c), ibid., p. 118; reproduced
in Yearbook … 1956, vol. II, p. 223, at p. 224, document A/CN.4/96.
168 Article 10
further in accepting responsibility for “anything done” by the predecessor administration
of South Africa.[695] 181
(15) 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. This possibility is preserved by paragraph 3 of article 10, which provides
that the attribution rules of paragraphs 1 and 2 are without prejudice to the attribution to
a State of any conduct, however related to that of the movement concerned, which is to be
considered an act of that State by virtue of other provisions in chapter II. The term “however
related to that of the movement concerned” is intended to have a broad meaning. Thus,
the failure by a State to take available steps to protect the premises of diplomatic missions,
threatened from attack by an insurrectional movement, is clearly conduct attributable to
the State and is preserved by paragraph 3.
(16) A further possibility is that the insurrectional movement may itself be held responsible
for its own conduct under international law, for example for a breach of international
humanitarian law committed by its forces. The topic of the international responsibility of
unsuccessful insurrectional or other movements, however, falls outside the scope of the
present articles, which are concerned only with the responsibility of States.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Iran-United States Claims Tribunal
Short v. Islamic Republic of Iran
In its 1987 award in the Short v. Islamic Republic of Iran case, the Tribunal, in examining
whether the facts invoked by the claimant as having caused his departure from the Iranian
territory were attributable to the Islamic Republic of Iran, referred to draft articles 14 and
15 provisionally adopted by the International Law Commission,[696] 109 which it considered a
confirmation of principles still valid contained in the previous case law on attribution:
[695] 181 Guided in particular by a constitutional provision, the Supreme Court of Namibia held that
“the new government inherits responsibility for the acts committed by the previous organs of the State”,
Minister of Defence, Namibia v. Mwandinghi, South African Law Reports, 1992 (2), p. 355, at p. 360; and
ILR, vol. 91, p. 341, at p. 361. See, on the other hand, 44123 Ontario Ltd. v. Crispus Kiyonga and Others,
11 Kampala Law Reports 14, pp. 20–21 (1992); and ILR, vol. 103, p. 259, at p. 266 (High Court, Uganda).
[696] 109 Those provisions were amended and incorporated in article 10 finally adopted by the ILC in
2001. The text of draft articles 14 and 15 provisionally adopted on first reading was as follows:
Article 14
Conduct of organs of an insurrectional movement
1. The conduct of an organ of an insurrectional movement which is established in the
territory of a State or in any other territory under its administration shall not be considered
as an act of that State under international law.
2. Paragraph 1 is without prejudice to the attribution to a State of any other conduct
which is related to that of the organ of the insurrectional movement and which is to be considered
as an act of that State by virtue of articles 5 to 10.
Article 10 169
The Tribunal notes … that it is not infrequent that foreigners have had to leave a country en masse
by reason of dramatic events that occur within the country. It was often the case during this century,
even since 1945. A number of international awards have been issued in cases when foreigners have
suffered damages as a consequence of such events … . Although these awards are rather dated, the
principles that they have followed in the matter of State international responsibility are still valid
and have recently been confirmed by the United Nations International Law Commission in its draft
articles on the law of State responsibility. See draft articles on state responsibility, adopted by the
International Law Commission on first reading, notably articles 11, 14 and 15. 1975 Yearbook International
Law Commission, vol. 2, at 59, United Nations doc. A/CN.4/SER.A/1975/Add.1 (1975).[697] 110
The Tribunal further noted, with reference to the commentary to the above mentioned
draft article 15, that:
Where a revolution leads to the establishment of a new government the State is held responsible for
the acts of the overthrown government insofar as the latter maintained control of the situation. The
successor government is also held responsible for the acts imputable to the revolutionary movement
which established it, even if those acts occurred prior to its establishment, as a consequence of the
continuity existing between the new organization of the State and the organization of the revolutionary
movement. See draft articles on State responsibility, supra, commentary on article 15, paras.
(3) and (4), 1975 Yearbook International Law Commission, vol. 2 at 100.[698] 111
[A/62/62, para. 69]
Rankin v. Islamic Republic of Iran
In its 1987 award in the Rankin v. Islamic Republic of Iran case, the Tribunal, in determining
the applicable law with regard to the claim, considered that draft article 15 provisionally
adopted by the International Law Commission reflected “an accepted principle of
international law”. It observed that
… several problems remain even though it is an accepted principle of international law that acts
of an insurrectional or revolutionary movement which becomes the new government of a State are
attributable to the State. See article 15, draft articles on State responsibility … First, when property
3. Similarly, paragraph 1 is without prejudice to the attribution of the conduct of the
organ of the insurrectional movement to that movement in any case in which such attribution
may be made under international law.
Article 15
Attribution to the State of the act of an insurrectional movement
which becomes the new government of a State or
which results in the formation of a new State
1. The act of an insurrectional movement which becomes the new government of a State
shall be considered as an act of that State. However, such attribution shall be without prejudice
to the attribution to that State of conduct which would have been previously considered
as an act of the State by virtue of articles 5 to 10.
2. The act of an insurrectional movement whose action results in the formation of a new
State in part of the territory of a pre-existing State or in a territory under its administration
shall be considered as an act of the new State. (Yearbook … 1980, vol. II (Part Two), para. 34.)
[697] 110 IUSCT, Award No. 312–11135–3, 14 July 1987, Iran-United States Claims Tribunal Reports,
vol. 16 (1987-III), p. 83, para. 28. Draft article 11, to which the passage also refers, was deleted by the
International Law Commission on second reading (footnote [206] 26 above).
[698] 111 Ibid., p. 84, para. 33.
170 Article 10
losses are suffered by an alien during a revolution, there may be a question whether the damage
resulted from violence which was directed at the alien or his property per se or was merely incidental
or collateral damage resulting from the presence of the alien’s property or property interests during
the period of revolutionary unrest. Second, even with respect to some property losses that are
not the result of incidental or collateral damage—for example, losses resulting from acts directed
by revolutionaries against the alien because of his nationality—a further question of attribution
remains, that is, whether those acts are acts of the revolutionary movement itself, rather than acts
of unorganized mobs or of individuals that are not attributable to the movement.[699] 112
In the same award, the Tribunal further referred to draft article 15 in determining
that a number of statements made by the leaders of the Revolution, which it found to be
inconsistent with the requirements of the Treaty of Amity between Iran and the United
States and customary international law to accord protection and security to foreigners and
their property, were “clearly … attributable to the Revolutionary Movement and thereby
to the Iranian State”.[700] 113
[A/62/62, para. 70]
International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia)
In Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia) the International Court of Justice
consider[ed] that, even if Article 10(2) of the ILC Articles on State Responsibility could be regarded
as declaratory of customary international law at the relevant time, that Article is concerned only
with the attribution of acts to a new State; it does not create obligations binding upon either the new
State or the movement that succeeded in establishing that new State. Nor does it affect the principle
stated in Article 13 of the said Articles.[701] 104
[A/71/80, para. 77]
[699] 112 IUSCT, Award No. 326–10913–2, 3 November 1987, Iran-United States Claims Tribunal
Reports, vol. 17 (1987-IV), pp. 143–144, para. 25.
[700] 113 Ibid., p. 147, para. 30.
[701] 104 See footnote [181] 38 above, para. 104.
171
Article 11. Conduct acknowledged and adopted by a State as its own
Conduct which is not attributable to a State under the preceding articles shall nevertheless
be considered an act of that State under international law if and to the extent
that the State acknowledges and adopts the conduct in question as its own.
Commentary
(1) All the bases for attribution covered in chapter II, with the exception of the conduct of
insurrectional or other movements under article 10, assume that the status of the person or
body as a State organ, or its mandate to act on behalf of the State, are established at the time
of the alleged wrongful act. Article 11, by contrast, provides for the attribution to a State
of conduct that was not or may not have been attributable to it at the time of commission,
but which is subsequently acknowledged and adopted by the State as its own.
(2) In many cases, the conduct which is acknowledged and adopted by a State will be that
of private persons or entities. The general principle, drawn from State practice and international
judicial decisions, is that the conduct of a person or group of persons not acting
on behalf of the State is not considered as an act of the State under international law. This
conclusion holds irrespective of the circumstances in which the private person acts and of
the interests affected by the person’s conduct.
(3) Thus like article 10, article 11 is based on the principle that purely private conduct cannot
as such be attributed to a State. But it recognizes “nevertheless” that conduct is to be
considered as an act of a State “if and to the extent that the State acknowledges and adopts
the conduct in question as its own”. Instances of the application of the principle can be
found in judicial decisions and State practice. For example, in the Lighthouses arbitration,
a tribunal held Greece liable for the breach of a concession agreement initiated by Crete
at a period when the latter was an autonomous territory of the Ottoman Empire, partly
on the basis that the breach had been “endorsed by [Greece] as if it had been a regular
transaction … and eventually continued by her, even after the acquisition of territorial
sovereignty over the island”.[702] 182 In the context of State succession, it is unclear whether
a new State succeeds to any State responsibility of the predecessor State with respect to its
territory.[703] 183 However, if the successor State, faced with a continuing wrongful act on its
territory, endorses and continues that situation, the inference may readily be drawn that it
has assumed responsibility for it.
(4) Outside the context of State succession, the United States Diplomatic and Consular
Staff in Tehran case provides a further example of subsequent adoption by a State of particular
conduct. There ICJ drew a clear distinction between the legal situation immediately
following the seizure of the United States embassy and its personnel by the militants, and
that created by a decree of the Iranian State which expressly approved and maintained the
situation. In the words of the Court:
[702] 182 Affaire relative à la concession des phares de l’Empire ottoman, UNRIAA, vol. XII (Sales
No. 63.V.3), p. 155, at p. 198 (1956).
[703] 183 The matter is reserved by article 39 of the Vienna Convention on Succession of States in
respect of Treaties (hereinafter “the 1978 Vienna Convention”).
172 Article 11
The policy thus announced by the Ayatollah Khomeini, of maintaining the occupation of the
Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the
United States Government was complied with by other Iranian authorities and endorsed by them
repeatedly in statements made in various contexts. The result of that policy was fundamentally to
transform the legal nature of the situation created by the occupation of the Embassy and the detention
of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah
Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated
continuing occupation of the Embassy and detention of the hostages into acts of that State.[704] 184
In that case it made no difference whether the effect of the “approval” of the conduct of
the militants was merely prospective, or whether it made the Islamic Republic of Iran
responsible for the whole process of seizure of the embassy and detention of its personnel
ab initio. The Islamic Republic of Iran had already been held responsible in relation to the
earlier period on a different legal basis, viz. its failure to take sufficient action to prevent the
seizure or to bring it to an immediate end.[705] 185 In other cases no such prior responsibility
will exist. Where the acknowledgement and adoption is unequivocal and unqualified there
is good reason to give it retroactive effect, which is what the tribunal did in the Lighthouses
arbitration.[706] 186 This is consistent with the position established by article 10 for insurrectional
movements and avoids gaps in the extent of responsibility for what is, in effect,
the same continuing act.
(5) As regards State practice, the capture and subsequent trial in Israel of Adolf Eichmann
may provide an example of the subsequent adoption of private conduct by a State. On
10 May 1960, Eichmann was captured by a group of Israelis in Buenos Aires. He was held
in captivity in Buenos Aires in a private home for some weeks before being taken by air to
Israel. Argentina later charged the Israeli Government with complicity in Eichmann’s capture,
a charge neither admitted nor denied by Israeli Foreign Minister Golda Meir, during
the discussion in the Security Council of the complaint. She referred to Eichmann’s captors
as a “volunteer group”.[707] 187 Security Council resolution 138 (1960) of 23 June 1960 implied
a finding that the Israeli Government was at least aware of, and consented to, the successful
plan to capture Eichmann in Argentina. It may be that Eichmann’s captors were “in fact
acting on the instructions of, or under the direction or control of” Israel, in which case
their conduct was more properly attributed to the State under article 8. But where there
are doubts about whether certain conduct falls within article 8, these may be resolved by
the subsequent adoption of the conduct in question by the State.
(6) The phrase “acknowledges and adopts the conduct in question as its own” is intended
to distinguish cases of acknowledgement and adoption from cases of mere support
or endorsement.[708] 188 ICJ in the United States Diplomatic and Consular Staff in Tehran
case used phrases such as “approval”, “endorsement”, “the seal of official governmental
approval” and “the decision to perpetuate [the situation]”.[709] 189 These were sufficient in
[704] 184 United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), p. 35, para. 74.
[705] 185 Ibid., pp. 31–33, paras. 63–68.
[706] 186 Lighthouses arbitration (footnote [702] 182 above), pp. 197–198.
[707] 187 Official Records of the Security Council, Fifteenth Year, 866th meeting, 22 June 1960, para. 18.
[708] 188 The separate question of aid or assistance by a State to internationally wrongful conduct of
another State is dealt with in article 16.
[709] 189 See footnote [80] 59 above.
Article 11 173
the context of that case, but as a general matter, conduct will not be attributable to a State
under article 11 where a State merely acknowledges the factual existence of conduct or
expresses its verbal approval of it. In international controversies States often take positions
which amount to “approval” or “endorsement” of conduct in some general sense but
do not involve any assumption of responsibility. The language of “adoption”, on the other
hand, carries with it the idea that the conduct is acknowledged by the State as, in effect, its
own conduct. Indeed, provided the State’s intention to accept responsibility for otherwise
non-attributable conduct is clearly indicated, article 11 may cover cases where a State has
accepted responsibility for conduct of which it did not approve, which it had sought to
prevent and which it deeply regretted. However such acceptance may be phrased in the
particular case, the term “acknowledges and adopts” in article 11 makes it clear that what
is required is something more than a general acknowledgement of a factual situation, but
rather that the State identifies the conduct in question and makes it its own.
(7) The principle established by article 11 governs the question of attribution only. Where
conduct has been acknowledged and adopted by a State, it will still be necessary to consider
whether the conduct was internationally wrongful. For the purposes of article 11, the international
obligations of the adopting State are the criterion for wrongfulness. The conduct
may have been lawful so far as the original actor was concerned, or the actor may have been
a private party whose conduct in the relevant respect was not regulated by international law.
By the same token, a State adopting or acknowledging conduct which is lawful in terms of
its own international obligations does not thereby assume responsibility for the unlawful
acts of any other person or entity. Such an assumption of responsibility would have to go
further and amount to an agreement to indemnify for the wrongful act of another.
(8) The phrase “if and to the extent that” is intended to convey a number of ideas. First,
the conduct of, in particular, private persons, groups or entities is not attributable to the
State unless under some other article of chapter II or unless it has been acknowledged and
adopted by the State. Secondly, a State might acknowledge and adopt conduct only to a
certain extent. In other words, a State may elect to acknowledge and adopt only some of
the conduct in question. Thirdly, the act of acknowledgment and adoption, whether it takes
the form of words or conduct, must be clear and unequivocal.
(9) The conditions of acknowledgement and adoption are cumulative, as indicated by
the word “and”. The order of the two conditions indicates the normal sequence of events
in cases in which article 11 is relied on. Acknowledgement and adoption of conduct by a
State might be express (as for example in the United States Diplomatic and Consular Staff
in Tehran case), or it might be inferred from the conduct of the State in question.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International Criminal Tribunal for the former Yugoslavia
Prosecutor v. Dragan Nikolić (“Sušica Camp”)
In its 2002 decision on the defence motion challenging the exercise of jurisdiction by the
Tribunal in the Nikolić (“Sušica Camp”) case, Trial Chamber II needed to consider the situation
in which “some unknown individuals [had] arrested the Accused in the territory of the
FRY [Federal Republic of Yugoslavia] and [had] brought him across the border with Bosnia
174 Article 11
and Herzegovina and into the custody of SFOR”.[710] 114 In this respect, the Trial Chamber
used the principles laid down in the articles finally adopted by the International Law Commission
in 2001, and in particular article 11 and the commentary thereto, “as general legal
guidance … insofar as they may be helpful for determining the issue at hand”:[711] 115
60. In determining the question as to whether the illegal conduct of the individuals can somehow be
attributed to SFOR, the Trial Chamber refers to the principles laid down in the draft articles of the
International Law Commission on the issue of ‘responsibilities of States for internationally wrongful
acts’. These draft articles were adopted by the International Law Commission at its fifty-third session in
2001. The Trial Chamber is however aware of the fact that any use of this source should be made with
caution. The draft articles were prepared by the International Law Commission and are still subject to
debate amongst States. They do not have the status of treaty law and are not binding on States. Furthermore,
as can be deduced from its title, the draft articles are primarily directed at the responsibilities
of States and not at those of international organizations or entities. As draft article 57 emphasizes,
[t]hese articles are without prejudice to any question of the responsibility under international law
of an international organization, or of any State for the conduct of an international organization.
61. In the present context, the focus should first be on the possible attribution of the acts of the
unknown individuals to SFOR. As indicated in article I of Annex 1-A to the Dayton Agreement,
IFOR (SFOR) is a multinational military force. It ‘may be composed of ground, air and maritime
units from NATO and non-NATO nations’ and ‘will operate under the authority and subject to the
direction and political control of the North Atlantic Council.’ For the purposes of deciding upon
the motions pending in the present case, the Chamber does not deem it necessary to determine the
exact legal status of SFOR under international law. Purely as general legal guidance, it will use the
principles laid down in the draft articles [on State responsibility] insofar as they may be helpful for
determining the issue at hand.
62. Article 11 of the draft articles [on State responsibility] relates to ‘Conduct acknowledged and
adopted by a State as its own’ and states the following:
Conduct which is not attributable to a State under the preceding articles shall nevertheless
be considered an act of that State under international law if and to the extent that the State
acknowledges and adopts the conduct in question as its own.
63. The report of the International Law Commission on the work of its fifty-third session sheds light
on the meaning of the article:
Article 11 ( … ) provides for the attribution to a State of conduct that was not or may not have
been attributable to it at the time of commission, but which is subsequently acknowledged and
adopted by the State as its own. ( … ), article 11 is based on the principle that purely private
conduct cannot as such be attributed to a State. But it recognizes ‘nevertheless’ that conduct is
to be considered as an act of State ‘if and to the extent that the State acknowledges and adopts
the conduct in question as its own’.
Furthermore, in this report a distinction is drawn between concepts such as ‘acknowledgement’ and ‘adoption’
from concepts such as ‘support’ or ‘endorsement’. The International Law Commission argues that
[710] 114 ICTY, Trial Chamber II, Decision on Defence Motion Challenging the Exercise of Jurisdiction by
the Tribunal, 9 October 2002, Case No. IT-94–2-PT, para. 57.
[711] 115 Ibid., para. 61.
Article 11 175
[a]s a general matter, conduct will not be attributable to a State under article 11 where a State
merely acknowledges the factual existence of conduct or expresses its verbal approval of it. In
international controversies States often take positions which amount to ‘approval’ or ‘endorsement’
of conduct in some general sense but do not involve any assumption of responsibility.
The language of ‘adoption’, on the other hand, carries with it the idea that the conduct is
acknowledged by the State as, in effect, its own conduct.”[712] 116
The Trial Chamber observed that both parties in the case had used the same and similar
criteria of “acknowledgement”, “adoption”, “recognition”, “approval” and “ratification”,
as used by the ILC.[713] 117 After having examined the facts of the case, it concluded that
SFOR and the Prosecution had become the “mere beneficiary” of the fortuitous rendition
of the accused to Bosnia, which did not amount to an “adoption” or “acknowledgement”
of the illegal conduct “as their own”.[714] 118
[A/62/62, para. 71]
[International arbitral tribunal (under the ICSID Convention)
Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia
The arbitral tribunal constituted to hear the Ioannis Kardassopoulos and Ron Fuchs v.
The Republic of Georgia case determined that, although the tribunal invoked article 7 during
the jurisdictional phase, articles 4, 5 and 11 were equally applicable to the dispute.[715] 36 The
tribunal concluded that “there can be no real question in these arbitrations as to the attribution
of any acts or omissions on the part of [the relevant entities] to the Respondent”.[716] 37
[See A/68/72, footnote 102 and para. 32]]
International Tribunal for the Law of the Sea (Seabed Disputes Chamber)
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area
In its advisory opinion on Responsibilities and Obligations of States Sponsoring Persons
and Entities with Respect to Activities in the Area, the Seabed Disputes Chamber indicated
that certain rules on the liability of sponsoring States in the United Nations Convention
on the Law of the Sea
are in line with the rules of customary international law on this issue. Under international law, the acts of
private entities are not directly attributable to States except where the entity in question is empowered to
act as a State organ (article 5 of the ILC Articles on State Responsibility) or where its conduct is acknowledged
and adopted by a State as its own (article 11 of the ILC Articles on State Responsibility).[717] 103
[A/68/72, para. 75]
[712] 116 Ibid., paras. 60–63 (footnotes omitted).
[713] 117 Ibid., para. 64.
[714] 118 Ibid., paras. 66–67.
[715] [36 See footnote [288] 36, para. 274 (quoting articles 4, 5 and 11).]
[716] [37 Ibid., paras. 274 and 280.]
[717] 103 See footnote [12] 10 above, para. 182.
176 Article 11
Permanent Court of Arbitration (under UNCITRAL Rules)
Luigiterzo Bosca v. Lithuania
In Luigiterzo Bosca v. Lithuania, the arbitral tribunal, paraphrasing article 11, stated
that “[i]n other words, where the State endorses the act, as here, the State is subject to international
responsibility under international law”.[718] 105
[A/71/80, para. 78]
William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and
Bilcon of Delaware Inc. v. Government of Canada
In William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton
and Bilcon of Delaware Inc. v. Government of Canada, the tribunal found that “[o]n the
facts of the present case, however, Article 11 would establish the international responsibility
of Canada even if the JRP [Joint Review Panel] were not one of its organs”.[719] 106 The
arbitral tribunal specified that “[t]here is no indication in the evidence of a level of independent
fact-finding, legal analysis or other deliberation by the Government of Canada
that would be inconsistent with the view that Canada was acknowledging and adopting
the essential reasoning and conclusions of the JRP”.[720] 107
[A/71/80, para. 79]
International arbitral tribunal (under the ICSID Convention)
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal did
not find that article 11 of the State responsibility articles was applicable in the case.[721] 108
[A/71/80, para. 80]
[Ampal-American Israel Corporation and others v. Arab Republic of Egypt
The arbitral tribunal in Ampal-American Israel Corporation and others v. Arab Republic
of Egypt quoted articles 4, 5, 8 and 11 of the State responsibility articles and
formed the view that the acts or omissions of EGPC [Egyptian General Petroleum Corporation] or
EGAS [Egyptian Natural Gas Holding Company] relevant to the conclusion and termination of the
GSPA [Gas Sale Purchase Agreement] are attributable to the Respondent under the relevant provisions
of the ILC Draft Articles on State Responsibility, which form part of the applicable customary
international law.[722] 96
[718] 105 See footnote [169] 26 above, footnote 114.
[719] 106 See footnote [333] 59 above, paras. 321–322.
[720] 107 Ibid., para. 323.
[721] 108 See footnote [114] 24 above, para. 449.
[722] [96 ICSID, Case No. ARB/12/11, Decision on Liability and Heads of Loss, 21 February 2017, para. 135.]
Article 11 177
The tribunal further explained, referring to article 8 of the State responsibility articles,
that EGPC and EGAS
were ‘in fact acting on the instructions of, or under the direction or control of ’ the Respondent in relation
to the particular conduct. In any event, the Tribunal finds that the Respondent subsequently
ratified the termination of the GSPA and thus ‘acknowledge[d] and adopt[ed] the conduct in question
as its own’ within the terms of Article 11.[723] 97
[A/74/83, p. 20]]
Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela
In Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela, the
arbitral tribunal found that:
by means of its conduct after the plant takeover of 15 May 2010 carried out by the members of the
SINPROTRAC union, PDVSA [Gas S.A.] acknowledged and adopted the union’s actions as its own.
On the basis of the applicable principles of customary international law on State responsibility as
reflected in Article 11 of the ILC Draft Articles, the plant takeover on 15 May 2010 therefore has to
be considered as an act of Respondent. In any event, PDVSA took effective control over the plant and
started the expropriation process shortly after 15 May 2010, as confirmed by its internal memoranda
and reports of early June 2010.[724] 117
Relying on the commentary to article 11, the arbitral tribunal also explained: “In contrast
to cases of mere State support, endorsement or general acknowledgment of a factual
situation created by private individuals, attribution under this rule requires that the State
clearly and unequivocally ‘identifies the conduct in question and makes it its own’”.[725] 118
[A/74/83, p. 22]
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
In Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, the tribunal quoted article 11
of the State responsibility articles and the commentary thereto, based on the claimant’s
arguments, but did “not consider that Article 11 of the ILC Articles in regard to EGPC
[Egyptian General Petroleum Corporation] and EGAS [Egyptian Natural Gas Holding
Company] separately advances the Claimant’s case”.[726] 119
[A/74/83, p. 23]
[723] [97 Ibid., para. 146.]
[724] 117 ICSID, Case No. ARB/12/13, Decision on Liability and the Principles of Quantum, 30 December
2016, para. 456.
[725] 118 Ibid., para. 461 (original emphasis).
[726] 119 ICSID, Case No. ARB/14/4, Award, 31 August 2018, paras. 9.120–9.121.
178 Article 11
[International arbitral tribunal (under UNCITRAL Rules)
Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria
The arbitral tribunal in Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal
Republic of Nigeria took the view that “all organs of the State, including those which have
an independent existence in domestic law, are to be treated as part of the State. This is customary
international law, and is clear in the light of the Articles”.[727] 42 The tribunal also
cited articles 1, 5, 9, 34, 36 and 38.[728] 43
[A/77/74, p. 11]]
World Trade Organization Panel
Saudi Arabia—Measures concerning the Protection of Intellectual Property Rights
The panel established in Saudi Arabia—Measures concerning the Protection of Intellectual
Property Rights cited the text of article 11, which
provides that ‘[c]onduct which is not attributable to a State … shall nevertheless be considered an
act of that State under international law if and to the extent that the State acknowledges and adopts
the conduct in question as its own’. By its terms, the principle only applies to conduct that is not
otherwise attributable to a State.[729] 79
[A/77/74. p. 16]
European Court of Human Rights
Makuchyan and Minasyan v. Azerbaijan and Hungary
In Makuchyan and Minasyan v. Azerbaijan and Hungary, the European Court of Human
Rights referred to article 11 in considering whether the conduct of an individual who was not a
State agent could be attributable to Azerbaijan. The Court took the view that the current standard
under international law, which stemmed from article 11 and the commentary thereto, set
a very high threshold for State responsibility for an act otherwise non-attributable to a State at the
time of its commission. That threshold is not limited to the mere ‘approval’ and ‘endorsement’ of the
act in question … Article 11 of the Draft Articles explicitly and categorically requires the ‘acknowledgment’
and ‘adoption’ of that act.[730] 80
The Court determined that, for State responsibility for the impugned acts to have been
established, international law would have required “that the Azerbaijani authorities
‘acknowledge’ and ‘adopt’ them as acts perpetrated by the State of Azerbaijan—thus directly
and categorically assuming responsibility for the killing of G.M. and the preparations
for the murder of the first applicant.[731] 81
[A/77/74. p. 16]
[727] [42 Final Award, 26 March 2021, para. 72.]
[728] [43 Ibid., paras. 72 and 134–135.]
[729] 79 See footnote [385] 35 above, para. 7.161.
[730] 80 ECHR, Fourth Section, Application No. 17247/13, Judgment, 12 October 2020, para. 112.
[731] 81 Ibid., para. 113.
179
Chapter III
BREACH OF AN INTERNATIONAL OBLIGATION
Commentary
(1) There is a breach of an international obligation when conduct attributed to a State as
a subject of international law amounts to a failure by that State to comply with an international
obligation incumbent upon it, or, to use the language of article 2, subparagraph (b),
when such conduct constitutes “a breach of an international obligation of the State”. This
chapter develops the notion of a breach of an international obligation, to the extent that
this is possible in general terms.
(2) It must be stressed again that the articles do not purport to specify the content of
the primary rules of international law, or of the obligations thereby created for particular
States.[732] 190 In determining whether given conduct attributable to a State constitutes a
breach of its international obligations, the principal focus will be on the primary obligation
concerned. It is this which has to be interpreted and applied to the situation, determining
thereby the substance of the conduct required, the standard to be observed, the result to
be achieved, etc. There is no such thing as a breach of an international obligation in the
abstract, and chapter III can only play an ancillary role in determining whether there has
been such a breach, or the time at which it occurred, or its duration. Nonetheless, a number
of basic principles can be stated.
(3) The essence of an internationally wrongful act lies in the non-conformity of the State’s
actual conduct with the conduct it ought to have adopted in order to comply with a particular
international obligation. Such conduct gives rise to the new legal relations which are grouped
under the common denomination of international responsibility. Chapter III, therefore,
begins with a provision specifying in general terms when it may be considered that there is
a breach of an international obligation (art. 12). The basic concept having been defined, the
other provisions of the chapter are devoted to specifying how this concept applies to various
situations. In particular, the chapter deals with the question of the intertemporal law as it
applies to State responsibility, i.e. the principle that a State is only responsible for a breach of
an international obligation if the obligation is in force for the State at the time of the breach
(art. 13), with the equally important question of continuing breaches (art. 14), and with the
special problem of determining whether and when there has been a breach of an obligation
which is directed not at single but at composite acts, i.e. where the essence of the breach lies
in a series of acts defined in aggregate as wrongful (art. 15).
(4) For the reason given in paragraph (2) above, it is neither possible nor desirable to deal
in the framework of this Part with all the issues that can arise in determining whether
there has been a breach of an international obligation. Questions of evidence and proof of
such a breach fall entirely outside the scope of the articles. Other questions concern rather
the classification or typology of international obligations. These have only been included
in the text where they can be seen to have distinct consequences within the framework of
the secondary rules of State responsibility.[733] 191
[732] 190 See paragraphs (2) to (4) of the general commentary.
[733] 191 See, e.g., the classification of obligations of conduct and results, paragraphs (11) to (12) of
the commentary to article 12.
180
Article 12. Existence of a breach of an international obligation
There is a breach of an international obligation by a State when an act of that State
is not in conformity with what is required of it by that obligation, regardless of its origin
or character.
Commentary
(1) As stated in article 2, a breach by a State of an international obligation incumbent upon
it gives rise to its international responsibility. It is first necessary to specify what is meant
by a breach of an international obligation. This is the purpose of article 12, which defines in
the most general terms what constitutes a breach of an international obligation by a State. In
order to conclude that there is a breach of an international obligation in any specific case, it
will be necessary to take account of the other provisions of chapter III which specify further
conditions relating to the existence of a breach of an international obligation, as well as the
provisions of chapter V dealing with circumstances which may preclude the wrongfulness
of an act of a State. But in the final analysis, whether and when there has been a breach of an
obligation depends on the precise terms of the obligation, its interpretation and application,
taking into account its object and purpose and the facts of the case.
(2) In introducing the notion of a breach of an international obligation, it is necessary again
to emphasize the autonomy of international law in accordance with the principle stated in
article 3. In the terms of article 12, the breach of an international obligation consists in the
disconformity between the conduct required of the State by that obligation and the conduct
actually adopted by the State—i.e. between the requirements of international law and the
facts of the matter. This can be expressed in different ways. For example, ICJ has used such
expressions as “incompatibility with the obligations” of a State,[734] 192 acts “contrary to” or
“inconsistent with” a given rule,[735] 193 and “failure to comply with its treaty obligations”.[736]194
In the ELSI case, a Chamber of the Court asked the “question whether the requisition was
in conformity with the requirements … of the FCN Treaty”.[737] 195 The expression “not in
conformity with what is required of it by that obligation” is the most appropriate to indicate
what constitutes the essence of a breach of an international obligation by a State. It allows
for the possibility that a breach may exist even if the act of the State is only partly contrary
to an international obligation incumbent upon it. In some cases precisely defined conduct is
expected from the State concerned; in others the obligation only sets a minimum standard
above which the State is free to act. Conduct proscribed by an international obligation may
involve an act or an omission or a combination of acts and omissions; it may involve the passage
of legislation, or specific administrative or other action in a given case, or even a threat
of such action, whether or not the threat is carried out, or a final judicial decision. It may
require the provision of facilities, or the taking of precautions or the enforcement of a prohibition.
In every case, it is by comparing the conduct in fact engaged in by the State with the
conduct legally prescribed by the international obligation that one can determine whether
[734] 192 United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), p. 29, para. 56.
[735] 193 Military and Paramilitary Activities in and against Nicaragua (footnote [30] 36 above), p. 64,
para. 115, and p. 98, para. 186, respectively.
[736] 194 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 46, para. 57.
[737] 195 ELSI (footnote [144] 85 above), p. 50, para. 70.
Article 12 181
or not there is a breach of that obligation. The phrase “is not in conformity with” is flexible
enough to cover the many different ways in which an obligation can be expressed, as well as
the various forms which a breach may take.
(3) Article 12 states that there is a breach of an international obligation when the act in
question is not in conformity with what is required by that obligation “regardless of its
origin”. As this phrase indicates, the articles are of general application. They apply to all
international obligations of States, whatever their origin may be. International obligations
may be established by a customary rule of international law, by a treaty or by a general
principle applicable within the international legal order. States may assume international
obligations by a unilateral act.[738] 196 An international obligation may arise from provisions
stipulated in a treaty (a decision of an organ of an international organization competent
in the matter, a judgment given between two States by ICJ or another tribunal, etc.). It is
unnecessary to spell out these possibilities in article 12, since the responsibility of a State is
engaged by the breach of an international obligation whatever the particular origin of the
obligation concerned. The formula “regardless of its origin” refers to all possible sources
of international obligations, that is to say, to all processes for creating legal obligations
recognized by international law. The word ”source” is sometimes used in this context, as
in the preamble to the Charter of the United Nations which stresses the need to respect
“the obligations arising from treaties and other sources of international law”. The word
“origin”, which has the same meaning, is not attended by the doubts and doctrinal debates
the term “source” has provoked.
(4) According to article 12, the origin or provenance of an obligation does not, as such,
alter the conclusion that responsibility will be entailed if it is breached by a State, nor
does it, as such, affect the regime of State responsibility thereby arising. Obligations may
arise for a State by a treaty and by a rule of customary international law or by a treaty and
a unilateral act.[739] 197 Moreover, these various grounds of obligation interact with each
other, as practice clearly shows. Treaties, especially multilateral treaties, can contribute to
the formation of general international law; customary law may assist in the interpretation
of treaties; an obligation contained in a treaty may be applicable to a State by reason of its
unilateral act, and so on. Thus, international courts and tribunals have treated responsibility
as arising for a State by reason of any “violation of a duty imposed by an international
juridical standard”.[740] 198 In the “Rainbow Warrior” arbitration, the tribunal said that “any
violation by a State of any obligation, of whatever origin, gives rise to State responsibility
[738] 196 Thus, France undertook by a unilateral act not to engage in further atmospheric nuclear testing:
Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253; Nuclear Tests (New Zealand v.
France), ibid., p. 457. The extent of the obligation thereby undertaken was clarified in Request for an Examination
of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in
the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995, I.C.J. Reports 1995, p. 288.
[739] 197 ICJ has recognized “[t]he existence of identical rules in international treaty law and customary
law” on a number of occasions, Military and Paramilitary Activities in and against Nicaragua
(footnote [30] 36 above), p. 95, para. 177; see also North Sea Continental Shelf, Judgment, I.C.J. Reports
1969, p. 3, at pp. 38–39, para. 63.
[740] 198 Dickson Car Wheel Company (footnote [36] 42 above); cf. the Goldenberg case, UNRIAA,
vol. II (Sales No. 1949.V.1), p. 901, at pp. 908–909 (1928); International Fisheries Company (footnote
[37] 43 above), p. 701 (“some principle of international law”); and Armstrong Cork Company (footnote
[39] 45 above), p. 163 (“any rule whatsoever of international law”).
182 Article 12
and consequently, to the duty of reparation”.[741] 199 In the Gabčíkovo-Nagymaros Project
case, ICJ referred to the relevant draft article provisionally adopted by the Commission in
1976 in support of the proposition that it is “well established that, when a State has committed
an internationally wrongful act, its international responsibility is likely to be involved
whatever the nature of the obligation it has failed to respect”.[742] 200
(5) Thus, there is no room in international law for a distinction, such as is drawn by some legal
systems, between the regime of responsibility for breach of a treaty and for breach of some other
rule, i.e. for responsibility arising ex contractu or ex delicto. In the “Rainbow Warrior” arbitration,
the tribunal affirmed that “in the field of international law there is no distinction between
contractual and tortious responsibility”.[743] 201 As far as the origin of the obligation breached is
concerned, there is a single general regime of State responsibility. Nor does any distinction exist
between the “civil” and “criminal” responsibility as is the case in internal legal systems.
(6) State responsibility can arise from breaches of bilateral obligations or of obligations
owed to some States or to the international community as a whole. It can involve relatively
minor infringements as well as the most serious breaches of obligations under peremptory
norms of general international law. Questions of the gravity of the breach and the peremptory
character of the obligation breached can affect the consequences which arise for the
responsible State and, in certain cases, for other States also. Certain distinctions between
the consequences of certain breaches are accordingly drawn in Parts Two and Three of these
articles.[744] 202 But the regime of State responsibility for breach of an international obligation
under Part One is comprehensive in scope, general in character and flexible in its application:
Part One is thus able to cover the spectrum of possible situations without any need for
further distinctions between categories of obligation concerned or the category of the breach.
(7) Even fundamental principles of the international legal order are not based on any special
source of law or specific law-making procedure, in contrast with rules of constitutional
character in internal legal systems. In accordance with article 53 of the 1969 Vienna Convention,
a peremptory norm of general international law is one which is “accepted and
recognized by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character”. Article 53 recognizes both that norms of a
peremptory character can be created and that the States have a special role in this regard as
par excellence the holders of normative authority on behalf of the international community.
Moreover, obligations imposed on States by peremptory norms necessarily affect the vital
interests of the international community as a whole and may entail a stricter regime of
responsibility than that applied to other internationally wrongful acts. But this is an issue
belonging to the content of State responsibility.[745] 203 So far at least as Part One of the articles
is concerned, there is a unitary regime of State responsibility which is general in character.
[741] 199 “Rainbow Warrior” (footnote [40] 46 above), p. 251, para. 75. See also Barcelona Traction
(footnote [46] 52 above), p. 46, para. 86 (“breach of an international obligation arising out of a treaty or
a general rule of law”).
[742] 200 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 38, para. 47. The qualification “likely to
be involved” may have been inserted because of possible circumstances precluding wrongfulness in that case.
[743] 201 “Rainbow Warrior” (footnote [40] 46 above), p. 251, para. 75.
[744] 202 See Part Three, chapter II and commentary; see also article 48 and commentary.
[745] 203 See articles 40 and 41 and commentaries.
Article 12 183
(8) Rather similar considerations apply with respect to obligations arising under the
Charter of the United Nations. Since the Charter is a treaty, the obligations it contains are,
from the point of view of their origin, treaty obligations. The special importance of the
Charter, as reflected in its Article 103,[746] 204 derives from its express provisions as well as
from the virtually universal membership of States in the United Nations.
(9) The general scope of the articles extends not only to the conventional or other origin
of the obligation breached but also to its subject matter. International awards and decisions
specifying the conditions for the existence of an internationally wrongful act speak of the
breach of an international obligation without placing any restriction on the subject matter
of the obligation breached.[747] 205 Courts and tribunals have consistently affirmed the
principle that there is no a priori limit to the subject matters on which States may assume
international obligations. Thus PCIJ stated in its first judgment, in the S.S. “Wimbledon”
case, that “the right of entering into international engagements is an attribute of State
sovereignty”.[748] 206 That proposition has often been endorsed.[749] 207
(10) In a similar perspective, it has sometimes been argued that an obligation dealing with
a certain subject matter could only have been breached by conduct of the same description.
That proposition formed the basis of an objection to the jurisdiction of ICJ in the Oil
Platforms case. It was argued that a treaty of friendship, commerce and navigation could
not in principle have been breached by conduct involving the use of armed force. The Court
responded in the following terms:
The Treaty of 1955 imposes on each of the Parties various obligations on a variety of matters. Any
action by one of the Parties that is incompatible with those obligations is unlawful, regardless of
the means by which it is brought about. A violation of the rights of one party under the Treaty by
means of the use of force is as unlawful as would be a violation by administrative decision or by any
other means. Matters relating to the use of force are therefore not per se excluded from the reach of
the Treaty of 1955.[750] 208
Thus the breach by a State of an international obligation constitutes an internationally
wrongful act, whatever the subject matter or content of the obligation breached, and whatever
description may be given to the non-conforming conduct.
(11) Article 12 also states that there is a breach of an international obligation when the act in
question is not in conformity with what is required by that obligation, “regardless of its …
[746] 204 According to which “[i]n the event of a conflict between the obligations of the Members of
the United Nations under the present Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail”.
[747] 205 See, e.g., Case concerning the Factory at Chorzów, Jurisdiction (footnote [28] 34 above); Case
concerning the Factory at Chorzów, Merits (ibid.); and Reparation for Injuries (footnote [32] 38 above). In
these decisions it is stated that “any breach of an international engagement” entails international responsibility.
See also Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (footnote [33] 39
above), p. 228.
[748] 206 S.S. “Wimbledon” (footnote [28] 34 above), p. 25.
[749] 207 See, e.g., Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955, p. 4, at pp. 20–21; Right
of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, p. 6, at p. 33; and Military and
Paramilitary Activities in and against Nicaragua (footnote [30] 36 above), p. 131, para. 259.
[750] 208 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection,
Judgment, I.C.J. Reports 1996, p. 803, at pp. 811–812, para. 21.
184 Article 12
character”. In practice, various classifications of international obligations have been adopted.
For example, a distinction is commonly drawn between obligations of conduct and obligations
of result. That distinction may assist in ascertaining when a breach has occurred. But
it is not exclusive,[751] 209 and it does not seem to bear specific or direct consequences as far
as the present articles are concerned. In the Colozza case, for example, the European Court
of Human Rights was concerned with the trial in absentia of a person who, without actual
notice of his trial, was sentenced to six years’ imprisonment and was not allowed subsequently
to contest his conviction. He claimed that he had not had a fair hearing, contrary to
article 6, paragraph 1, of the European Convention on Human Rights. The Court noted that:
The Contracting States enjoy a wide discretion as regards the choice of the means calculated to
ensure that their legal systems are in compliance with the requirements of article 6 § 1 in this field.
The Court’s task is not to indicate those means to the States, but to determine whether the result
called for by the Convention has been achieved … For this to be so, the resources available under
domestic law must be shown to be effective and a person “charged with a criminal offence” … must
not be left with the burden of proving that he was not seeking to evade justice or that his absence
was due to force majeure.[752] 210
The Court thus considered that article 6, paragraph 1, imposed an obligation of result.[753] 211
But, in order to decide whether there had been a breach of the Convention in the circumstances
of the case, it did not simply compare the result required (the opportunity for a trial in
the accused’s presence) with the result practically achieved (the lack of that opportunity in the
particular case). Rather, it examined what more Italy could have done to make the applicant’s
right “effective”.[754] 212 The distinction between obligations of conduct and result was not determinative
of the actual decision that there had been a breach of article 6, paragraph 1.[755] 213
(12) The question often arises whether an obligation is breached by the enactment of legislation
by a State, in cases where the content of the legislation prima facie conflicts with what
is required by the international obligation, or whether the legislation has to be implemented
[751] 209 Cf. Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 77, para. 135, where the Court
referred to the parties having accepted “obligations of conduct, obligations of performance, and obligations
of result”.
[752] 210 Colozza v. Italy, Eur. Court H.R., Series A, No. 89 (1985), pp. 15–16, para. 30, citing De Cubber
v. Belgium, ibid., No. 86 (1984), p. 20, para. 35.
[753] 211 Cf. Plattform “Ärzte für das Leben” v. Austria, in which the Court gave the following interpretation
of article 11:
“While it is the duty of Contracting States to take reasonable and appropriate measures
to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely
and they have a wide discretion in the choice of the means to be used … In this area the
obligation they enter into under article 11 of the Convention is an obligation as to measures
to be taken and not as to results to be achieved” (Eur. Court H.R., Series A, No. 139, p. 12,
para. 34 (1988)).
In the Colozza case (footnote [752] 210 above), the Court used similar language but concluded that
the obligation was an obligation of result. Cf. C. Tomuschat, “What is a ‘breach’ of the European Convention
on Human Rights?”, The Dynamics of the Protection of Human Rights in Europe: Essays in Honour of
Henry G. Schermers, Lawson and de Blois, eds. (Dordrecht, Martinus Nijhoff, 1994), vol. 3, p. 315, at p. 328.
[754] 212 Colozza case (footnote [752] 210 above), para. 28.
[755] 213 See also The Islamic Republic of Iran v. The United States of America, cases A15 (IV) and A24,
Iran-U.S. C.T.R., vol. 32, p. 115 (1996).
Article 12 185
in the given case before the breach can be said to have occurred. Again, no general rule can
be laid down that is applicable to all cases.[756] 214 Certain obligations may be breached by the
mere passage of incompatible legislation.[757] 215 Where this is so, the passage of the legislation
without more entails the international responsibility of the enacting State, the legislature
itself being an organ of the State for the purposes of the attribution of responsibility.[758] 216
In other circumstances, the enactment of legislation may not in and of itself amount to a
breach,[759] 217 especially if it is open to the State concerned to give effect to the legislation in a
way which would not violate the international obligation in question. In such cases, whether
there is a breach will depend on whether and how the legislation is given effect.[760] 218
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Ad hoc committee (under the ICSID Convention)
Compañia de Aguas del Aconquija SA and Vivendi Universal (formerly Compagnie générale
des eaux) v. Argentine Republic
In its 2002 decision on annulment in the CAA and Vivendi Universal v. Argentina
case, the ICSID ad hoc committee referred to the text and commentaries to articles 2, 4
and 12 finally adopted by the International Law Commission. The relevant passages are
quoted [on pages 26 and 67] above.
[A/62/62, para. 72]
[756] 214 Cf. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947 (footnote [142] 83 above), p. 30, para. 42.
[757] 215 A uniform law treaty will generally be construed as requiring immediate implementation,
i.e. as embodying an obligation to make the provisions of the uniform law a part of the law of each State
party: see, e.g., B. Conforti, “Obblighi di mezzi e obblighi di risultato nelle convenzioni di diritto uniforme”,
Rivista di diritto internazionale privato e processuale, vol. 24 (1988), p. 233.
[758] 216 See article 4 and commentary. For illustrations, see, e. g., the findings of the European Court
of Human Rights in Norris v. Ireland, Eur. Court H.R., Series A, No. 142, para. 31 (1988), citing Klass and
Others v. Germany, ibid., No. 28, para. 33, (1978); Marckx v. Belgium, ibid., No. 31, para. 27 (1979); Johnston
and Others v. Ireland, ibid., No. 112, para. 42 (1986); Dudgeon v. the United Kingdom, ibid., No. 45, para. 41
(1981); and Modinos v. Cyprus, ibid., No. 259, para. 24 (1993). See also International responsibility for the
promulgation and enforcement of laws in violation of the Convention (arts. 1 and 2 American Convention
on Human Rights), Advisory Opinion OC–14/94, Inter-American Court of Human Rights, Series A,
No. 14 (1994). The Inter-American Court also considered it possible to determine whether draft legislation
was compatible with the provisions of human rights treaties: Restrictions to the Death Penalty (arts. 4(2)
and 4(4) American Convention on Human Rights), Advisory Opinion OC–3/83, Series A, No. 3 (1983).
[759] 217 As ICJ held in LaGrand, Judgment (footnote [236] 119 above), p. 497, paras. 90–91.
[760] 218 See, e.g., WTO, Report of the Panel[, United States–Sections 301–310 of the Trade Act of
1974 (WT/DS152/R), 22 December 1999] (footnote [94] 73 above), paras. 7.34–7.57.
186 Article 12
International arbitral tribunal (under the ICSID Convention)
ConocoPhillips Petrozuata B.V., and others v. Bolivarian Republic of Venezuela
In ConocoPhillips Petrozuata B.V., and others v. Bolivarian Republic of Venezuela, the
arbitral tribunal cited the commentary to article 12 when considering that “a breach of
obligation does not occur until the law in issue is actually applied in breach of that obligation
and that cannot happen before the law in question is in force”.[761] 109
[A/71/80, para. 81]
Special Tribunal for Lebanon
The Prosecutor v. Salim Jamil Ayyash et al.
In The Prosecutor v. Salim Jamil Ayyash et al., the Special Tribunal for Lebanon
referred to article 12 and the pertinent commentary in explaining that “the standard for
determining a State’s non-compliance may be objective” but “[i]nterpretation, obviously,
depends upon the circumstances”.[762] 110
[A/71/80, para. 82]
Caribbean Court of Justice
Maurice Tomlinson v. The State of Belize and The State of Trinidad and Tobago
The Caribbean Court of Justice in Maurice Tomlinson v. The State of Belize and The
State of Trinidad and Tobago accepted that “[a]rticle 12 [of the State responsibility articles]
repeats the rule of customary international law that there is a breach of an international
obligation by a State when an act of the State is not in conformity with what is required of
it by that obligation”.[763] 120
[A/74/83, p. 23]
African Commission on Human and Peoples’ Rights
Hossam Ezzat & Rania Enayet v. The Arab Republic of Egypt
In Hossam Ezzat & Rania Enayet v. The Arab Republic of Egypt, the African Commission on
Human and Peoples’ Rights, citing article 12, observed that “[a] [S]tate breaches an international
obligation when its conduct or conduct attributable to it in the form of action or omission is not
in conformity or is inconsistent with what is expected of it by the obligation in question”.[764] 121
[A/74/83, p. 23]
[761] 109 See footnote [18] 6 above, para. 289, footnote 308.
[762] 110 STL, STL-11–01, Decision on Updated Request for a Finding of Non-Compliance, 27 March
2015, paras. 43–45.
[763] 120 CCJ, [2016] CCJ 1 (OJ), 10 June 2016, para. 22.
[764] 121 African Commission on Human and Peoples’ Rights, Communication No. 355/07, Decision,
28 April 2018, para. 124.
Article 12 187
Permanent Court of Arbitration (under UNCITRAL Rules)
Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
referred to articles 12 and 20 to 25, noting that “[t]here is a breach only when the conduct
of a State is not in conformity with what is required of it by an international obligation,
provided that there are no circumstances precluding the wrongfulness”.[765] 82
[A/77/74, p. 17]
[765] 82 See footnote [126] 14 above, para. 155.
188
Article 13. International obligation in force for a State
An act of a State does not constitute a breach of an international obligation unless
the State is bound by the obligation in question at the time the act occurs.
Commentary
(1) Article 13 states the basic principle that, for responsibility to exist, the breach must
occur at a time when the State is bound by the obligation. This is but the application in the
field of State responsibility of the general principle of intertemporal law, as stated by Judge
Huber in another context in the Island of Palmas case:
[A] juridical fact must be appreciated in the light of the law contemporary with it, and not of the law
in force at the time when a dispute in regard to it arises or falls to be settled.[766] 219
Article 13 provides an important guarantee for States in terms of claims of responsibility. Its
formulation (“does not constitute … unless …”) is in keeping with the idea of a guarantee
against the retrospective application of international law in matters of State responsibility.
(2) International tribunals have applied the principle stated in article 13 in many cases.
An instructive example is provided by the decision of Umpire Bates of the United States-
Great Britain Mixed Commission concerning the conduct of British authorities who had
seized United States vessels engaged in the slave trade and freed slaves belonging to United
States nationals. The incidents referred to the Commission had taken place at different
times and the umpire had to determine whether, at the time each incident took place,
slavery was “contrary to the law of nations”. Earlier incidents, dating back to a time when
the slave trade was considered lawful, amounted to a breach on the part of the British
authorities of the international obligation to respect and protect the property of foreign
nationals.[767] 220 The later incidents occurred when the slave trade had been “prohibited by
all civilized nations” and did not involve the responsibility of Great Britain.[768] 221
(3) Similar principles were applied by Arbitrator Asser in deciding whether the seizure
and confiscation by Russian authorities of United States vessels engaged in seal hunting
outside Russia’s territorial waters should be considered internationally wrongful. In his
award in the “James Hamilton Lewis” case, he observed that the question had to be settled
“according to the general principles of the law of nations and the spirit of the international
agreements in force and binding upon the two High Parties at the time of the seizure of the
[766] 219 Island of Palmas (Netherlands/United States of America), UNRIAA, vol. II (Sales
No. 1949.V.1), p. 829, at p. 845 (1928). Generally on intertemporal law, see resolution I adopted in 1975 by
the Institute of International Law at its Wiesbaden session, Annuaire de l’Institut de droit international,
vol. 56 (1975), pp. 536–540; for the debate, ibid., pp. 339–374; for M. Sørensen’s reports, ibid., vol. 55
(1973), pp. 1–116. See further W. Karl, “The time factor in the law of State responsibility”, Simma and
Spinedi, eds., op. cit. (footnote [689] 175 above), p. 95.
[767] 220 See the “Enterprize” case, Lapradelle-Politis (footnote [520] 139 above), vol. I, p. 703 (1855);
and Moore, History and Digest, vol. IV, p. 4349, at p. 4373. See also the “Hermosa” and “Créole” cases,
Lapradelle-Politis, op. cit., p. 704 (1855); and Moore, History and Digest, vol. IV, pp. 4374–4375.
[768] 221 See the “Lawrence” case, Lapradelle-Politis, op. cit., p. 741; and Moore, History and Digest,
vol. III, p. 2824. See also the “Volusia”case, Lapradelle-Politis, op. cit., p. 741.
Article 13 189
vessel”.[769] 222 Since, under the principles in force at the time, Russia had no right to seize
the United States vessel, the seizure and confiscation of the vessel were unlawful acts for
which Russia was required to pay compensation.[770] 223 The same principle has consistently
been applied by the European Commission and the European Court of Human Rights to
deny claims relating to periods during which the European Convention on Human Rights
was not in force for the State concerned.[771] 224
(4) State practice also supports the principle. A requirement that arbitrators apply the
rules of international law in force at the time when the alleged wrongful acts took place is
a common stipulation in arbitration agreements, [772] 225 and undoubtedly is made by way
of explicit confirmation of a generally recognized principle. International law writers who
have dealt with the question recognize that the wrongfulness of an act must be established
on the basis of the obligations in force at the time when the act was performed.[773] 226
(5) State responsibility can extend to acts of the utmost seriousness, and the regime of
responsibility in such cases will be correspondingly stringent. But even when a new peremptory
norm of general international law comes into existence, as contemplated by article
64 of the 1969 Vienna Convention, this does not entail any retrospective assumption
of responsibility. Article 71, paragraph 2 (b), provides that such a new peremptory norm
“does not affect any right, obligation or legal situation of the parties created through the
execution of the treaty prior to its termination, provided that those rights, obligations or
situations may thereafter be maintained only to the extent that their maintenance is not in
itself in conflict with the new peremptory norm”.
(6) Accordingly, it is appropriate to apply the intertemporal principle to all international
obligations, and article 13 is general in its application. It is, however, without prejudice
to the possibility that a State may agree to compensate for damage caused as a result of
conduct which was not at the time a breach of any international obligation in force for
[769] 222 Affaire des navires Cape Horn Pigeon, James Hamilton Lewis, C. H. White et Kate and Anna,
UNRIAA, vol. IX (Sales No. 59.V.5), p. 66, at p. 69 (1902).
[770] 223 See also the “C. H. White” case, ibid., p. 74. In these cases the arbitrator was required by the
arbitration agreement itself to apply the law in force at the time the acts were performed. Nevertheless,
the intention of the parties was clearly to confirm the application of the general principle in the context
of the arbitration agreement, not to establish an exception. See further the S.S. “Lisman” case, ibid.,
vol. III (Sales No. 1949.V.2), p. 1767, at p. 1771 (1937).
[771] 224 See, e.g., X v. Germany, application No. 1151/61, Council of Europe, European Commission
of Human Rights, Recueil des décisions, No. 7 (March 1962), p. 119 (1961) and many later decisions.
[772] 225 See, e.g., Declarations exchanged between the Government of the United States of America
and the Imperial Government of Russia, for the submission to arbitration of certain disputes concerning
the international responsibility of Russia for the seizure of American ships, UNRIAA, vol. IX (Sales
No. 59.V.5), p. 57 (1900).
[773] 226 See, e.g., P. Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit
international public: problèmes de droit intertemporel ou de droit transitoire (Paris, Librairie générale de
droit et de jurisprudence, 1970), pp. 119, 135 and 292; D. Bindschedler-Robert, “De la rétroactivité en
droit international public”, Recueil d’études de droit international en hommage à Paul Guggenheim (University
of Geneva Law Faculty/Graduate Institute of International Studies, 1968), p. 184; M. Sørensen,
“Le problème intertemporel dans l’application de la Convention européenne des droits de l’homme”,
Mélanges offerts à Polys Modinos (Paris, Pedone, 1968), p. 304; T. O. Elias, “The doctrine of intertemporal
law”, AJIL, vol. 74, No. 2 (April 1980), p. 285; and R. Higgins, “Time and the law: international perspectives
on an old problem”, International and Comparative Law Quarterly, vol. 46 (July 1997), p. 501.
190 Article 13
that State. In fact, cases of the retrospective assumption of responsibility are rare. The lex
specialis principle (art. 55) is sufficient to deal with any such cases where it may be agreed
or decided that responsibility will be assumed retrospectively for conduct which was not a
breach of an international obligation at the time it was committed.[774] 227
(7) In international law, the principle stated in article 13 is not only a necessary but also a
sufficient basis for responsibility. In other words, once responsibility has accrued as a result
of an internationally wrongful act, it is not affected by the subsequent termination of the
obligation, whether as a result of the termination of the treaty which has been breached or
of a change in international law. Thus, as ICJ said in the Northern Cameroons case:
[I]f during the life of the Trusteeship the Trustee was responsible for some act in violation of the
terms of the Trusteeship Agreement which resulted in damage to another Member of the United
Nations or to one of its nationals, a claim for reparation would not be liquidated by the termination
of the Trust.[775] 228
Similarly, in the “Rainbow Warrior” arbitration, the arbitral tribunal held that, although
the relevant treaty obligation had terminated with the passage of time, France’s responsibility
for its earlier breach remained.[776] 229
(8) Both aspects of the principle are implicit in the ICJ decision in the Certain Phosphate
Lands in Nauru case. Australia argued there that a State responsibility claim relating to
the period of its joint administration of the Trust Territory for Nauru (1947–1968) could
not be brought decades later, even if the claim had not been formally waived. The Court
rejected the argument, applying a liberal standard of laches or unreasonable delay.[777] 230
But it went on to say that:
[I]t will be for the Court, in due time, to ensure that Nauru’s delay in seising [sic] it will in no way
cause prejudice to Australia with regard to both the establishment of the facts and the determination
of the content of the applicable law.[778] 231
Evidently, the Court intended to apply the law in force at the time the claim arose. Indeed that
position was necessarily taken by Nauru itself, since its claim was based on a breach of the
Trusteeship Agreement, which terminated at the date of its accession to independence in 1968.
Its claim was that the responsibility of Australia, once engaged under the law in force at a given
time, continued to exist even if the primary obligation had subsequently terminated.[779] 232
[774] 227 As to the retroactive effect of the acknowledgement and adoption of conduct by a State, see
article 11 and commentary, especially paragraph (4). Such acknowledgement and adoption would not,
without more, give retroactive effect to the obligations of the adopting State.
[775] 228 Northern Cameroons, Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 15, at p. 35.
[776] 229 “Rainbow Warrior” (footnote [40] 46 above), pp. 265–266.
[777] 230 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, p. 240, at pp. 253–255, paras. 31–36. See article 45, subparagraph (b), and commentary.
[778] 213 Certain Phosphate Lands in Nauru, ibid., p. 255, para. 36.
[779] 232 The case was settled before the Court had the opportunity to consider the merits: Certain
Phosphate Lands in Nauru, Order of 13 September 1993, I.C.J. Reports 1993, p. 322; for the settlement
agreement, see Agreement between Australia and the Republic of Nauru for the Settlement of the Case
in the International Court of Justice concerning Certain Phosphate Lands in Nauru (Nauru, 10 August
1993) (United Nations, Treaty Series, vol. 1770, No. 30807, p. 379).
Article 13 191
(9) The basic principle stated in article 13 is thus well established. One possible qualification
concerns the progressive interpretation of obligations, by a majority of the Court in the
Namibia case.[780] 233 But the intertemporal principle does not entail that treaty provisions are
to be interpreted as if frozen in time. The evolutionary interpretation of treaty provisions is
permissible in certain cases,[781] 234 but this has nothing to do with the principle that a State
can only be held responsible for breach of an obligation which was in force for that State at the
time of its conduct. Nor does the principle of the intertemporal law mean that facts occurring
prior to the entry into force of a particular obligation may not be taken into account where
these are otherwise relevant. For example, in dealing with the obligation to ensure that persons
accused are tried without undue delay, periods of detention prior to the entry into force
of that obligation may be relevant as facts, even though no compensation could be awarded
in respect of the period prior to the entry into force of the obligation.[782] 235
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Additional Facility Rules)
Mondev International Ltd. v. United States of America
In its 2002 award, the arbitral tribunal constituted in accordance with chapter 11 of
NAFTA to hear the Mondev v. United States case observed that the basic principle “that a
State can only be internationally responsible for breach of a treaty obligation if the obligation
is in force for that State at the time of the alleged breach” was “stated both in [article 28
of] the Vienna Convention on the Law of Treaties and in the International Law Commission’s
articles on State responsibility, and has been repeatedly affirmed by international
tribunals”.[783] 119 It referred in a footnote to article 13 finally adopted by the International
Law Commission in 2001.
[A/62/62, para. 73]
European Court of Human Rights
Blečić v. Croatia
In its 2006 judgement in the Blečić v. Croatia case, the European Court, sitting as a
Grand Chamber, quoted the text of articles 13 and 14, as finally adopted by the International
Law Commission in 2001, in the section devoted to the “relevant international law
and practice”.[784] 120 The European Court later observed that
[780] 233 Namibia case (footnote [690] 176 above), pp. 31–32, para. 53.
[781] 234 See, e.g., Tyrer v. the United Kingdom, Eur. Court H.R., Series A, No. 26, pp. 15–16 (1978).
[782] 235 See, e.g., Zana v. Turkey, Eur. Court H.R., Reports, 1997–VII, p. 2533 (1997); and J. Pauwelyn,
“The concept of a ‘continuing violation’ of an international obligation: selected problems”, BYBIL, 1995,
vol. 66, p. 415, at pp. 443–445.
[783] 119 NAFTA (ICSID Additional Facility), Mondev International Ltd. v. United States of America,
Case No. ARB(AF)/99/2, Award, 11 October 2002, para. 68 (footnotes omitted), reproduced in International
Law Reports, vol. 125, p. 131.
[784] 120 ECHR, Grand Chamber, Application No. 59532/00, Judgment, 8 March 2006, para. 48.
192 Article 13
while it is true that from the ratification date onwards all of the State’s acts and omissions must conform
to the [1950 European Convention on Human Rights] … the Convention imposes no specific
obligation on the Contracting States to provide redress for wrongs or damage caused prior to that
date … Any other approach would undermine both the principle of non-retroactivity in the law of
treaties and the fundamental distinction between violation and reparation that underlines the law
of State responsibility.[785] 121
The European Court found thereafter that, on the basis of its jurisdiction ratione temporis,
it could not take cognizance of the merits of the case, since the facts allegedly constitutive
of interference preceded the date into force of the Convention in respect of Croatia.[786] 122
[A/62/62, para. 74]
Šilih v. Slovenia
In the Šilih v. Slovenia case, the European Court of Human Rights referred to article 13
of the State responsibility articles as constituting “relevant international law and practice” in
the context of the consideration of the jurisdiction ratione temporis of the court.[787] 14
[A/65/76, para. 18]
International Court of Justice
Jurisdictional Immunities of the State (Germany v. Italy)
In its judgment in Jurisdictional Immunities of the State (Germany v. Italy), the International
Court of Justice referred to article 13 in support of the assertion that “the compatibility
of an act with international law can be determined only by reference to the law in
force at the time when the act occurred”.[788] 104
[A/68/72, para. 76]
International arbitral tribunal (under the ICSID Convention)
Railroad Development Corporation v. Republic of Guatemala
The arbitral tribunal in Railroad Development Corporation v. Republic of Guatemala
referred to article 13 in support of the assertion that a “[t]reaty cannot be breached before
it entered into force … ”.[789] 105
[A/68/72, para. 77]
[785] 121 Ibid., para. 81.
[786] 122 Ibid., para. 92 and operative paragraph.
[787] 14 ECHR, Grand Chamber, Application No. 71463/01, Judgment, 9 April 2009, para. 107.
[788] 104 ICJ, Judgment, 3 February 2012, para. 58.
[789] 105 ICSID, Case No. ARB/07/23, second decision on objections to jurisdiction, 29 June 2012,
para. 116 (quoting article 13).
Article 13 193
African Commission on Human and Peoples’ Rights
Al-Asad v. Djibouti
In Al-Asad v. Djibouti, the African Commission on Human and Peoples’ Rights
referred to article 13 as a “simple and well-articulated” principle.[790] 112
[A/71/80, para. 83]
International arbitral tribunal (under the ICSID Convention)
Renee Rose Levy and Gremcitel S.A. v. Republic of Peru
The arbitral tribunal in Renee Rose Levy and Gremcitel S.A. v. Republic of Peru cited
article 13 in support of “the principle of non-retroactivity of treaties”.[791] 113
[A/71/80, para. 84]
Ping An Life Insurance Company, Limited and Ping An Insurance (Group) Company Limited
v. The Government of Belgium
In Ping An Life Insurance Company, Limited and Ping An Insurance (Group) Company
Limited v. The Government of Belgium, the arbitral tribunal cited article 13 as codifying
the “general principle (perhaps more accurately described as a presumption) of non-retroactivity
of treaties”.[792] 114 More specifically, the tribunal relied on article 13 in support
of its view that
the substantive provisions of a BIT may not be relied on in relation to acts and omissions occurring
before its entry into force (unless they are continuing or composite acts) even where (as here) the
BIT applies to investments made prior to the entry into force of the BIT, or where the dispute arose
after the entry into force of the BIT.[793] 115
[A/71/80, para. 85]
Adel A Hamadi Al Tamimi v. Sultanate of Oman
In Adel A Hamadi Al Tamimi v. Sultanate of Oman, the arbitral tribunal noted that
“Article 13 of the ILC Articles on State Responsibility confirms that an act of State will not
constitute a breach of an international obligation unless the State is bound by the obligation
in question at the time the act occurs”.[794] 116
[A/71/80, para. 86]
[790] 112 ACHPR, Communication 383/10, Decision on Admissibility, 12 May 2014, para. 130.
[791] 113 ICSID, Case No. ARB/11/17, Award, 9 January 2015, para. 147, note 170.
[792] 114 ICSID, Case No. ARB/12/29, Award, 30 April 2015, paras. 168–169.
[793] 115 Ibid., para. 172.
[794] 116 See footnote [340] 66 above, para. 395.
194 Article 13
Permanent Court of Arbitration (under UNCITRAL Rules)
Mesa Power Group v. Government of Canada
In Mesa Power Group v. Government of Canada, the arbitral tribunal cited article 13
with regard to the non-retroactivity of treaties when concluding that “State conduct cannot
be governed by rules that are not applicable when the conduct occurs”.[795] 122
[A/74/83, p. 23]
Renco Group v. Republic of Peru
In Renco Group v. Republic of Peru, the arbitral tribunal noted that articles 13 and 14
reflected
the general principle that the lawfulness of State conduct must be assessed contemporaneously with
that conduct. Since a State is not bound by a conventional obligation it has assumed under a treaty
until such treaty enters into force, that treaty obligation cannot be breached until the treaty giving
rise to that obligation has come into force.[796] 83
[A/77/74, p. 17]
Permanent Court of Arbitration (under UNCITRAL Rules)
Spółdzielnia Pracy Muszynianka v. Slovak Republic
In Spółdzielnia Pracy Muszynianka v. Slovak Republic, the arbitral tribunal quoted
paragraph (7) of the commentary to article 13 and noted that, at the time that the facts
occurred, the relevant bilateral investment treaty was in force and, “[a]s a result, … the
Respondent’s responsibility as well as the monetary consequences of a breach are governed
by the BIT irrespective of the latter’s termination”.[797] 84
[A/77/74, p. 17]
International arbitral tribunal (under the ICSID Convention)
Astrida Benita Carrizosa v. Republic of Colombia
The arbitral tribunal in Astrida Benita Carrizosa v. Republic of Colombia referred to
article 13, noting that conduct prior to the entry into force of the investment treaty could
not constitute a breach, as “confirmed by the rule of State responsibility, according to
which there can be no breach of an international obligation if that obligation did not apply
at the time of the commission of the allegedly unlawful conduct”.[798] 85
[A/77/74, p. 17]
[795] 122 PCA, Case No. 2012–17, Award, 24 March 2016, para. 325 and footnote 69.
[796] 83 PCA, Case No. 2019–46, Decision on Expedited Preliminary Objections, 30 June 2020,
paras. 141–142.
[797] 84 PCA, Case No. 2017–08, Award, 7 October 2020, para. 264.
[798] 85 ICSID, Case No. ARB/18/5, Award, 19 April 2021, para. 126.
Article 13 195
Permanent Court of Arbitration (under UNCITRAL Rules)
OOO Manolium Processing v. Republic of Belarus
The arbitral tribunal in OOO Manolium Processing v. Republic of Belarus referred to
article 13 and the commentary thereto. It noted that article 13 reflected a principle “which
is considered ‘well established’ and supported by State practice”, namely that “[t]he prohibition
of retroactivity implies that the legality of a Member State’s actions under the
[Treaty on the Eurasian Economic Union] can only be assessed if the Treaty was in force
at the time the act was performed”.[799] 86
[A/77/74, p. 17]
[799] 86 PCA, Case No. 2018–06, Final Award, 22 June 2021, para. 269.
196
Article 14. Extension in time of the breach of an international obligation
1. The breach of an international obligation by an act of a State not having a continuing
character occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing
character extends over the entire period during which the act continues and
remains not in conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given
event occurs when the event occurs and extends over the entire period during which the
event continues and remains not in conformity with that obligation.
Commentary
(1) The problem of identifying when a wrongful act begins and how long it continues is
one which arises frequently[800] 236 and has consequences in the field of State responsibility,
including the important question of cessation of continuing wrongful acts dealt with in
article 30. Although the existence and duration of a breach of an international obligation
depends for the most part on the existence and content of the obligation and on the facts
of the particular breach, certain basic concepts are established. These are introduced in
article 14. Without seeking to be comprehensive in its treatment of the problem, article 14
deals with several related questions. In particular, it develops the distinction between
breaches not extending in time and continuing wrongful acts (see paragraphs (1) and (2)
respectively), and it also deals with the application of that distinction to the important case
of obligations of prevention. In each of these cases it takes into account the question of the
continuance in force of the obligation breached.
(2) Internationally wrongful acts usually take some time to happen. The critical distinction
for the purpose of article 14 is between a breach which is continuing and one which
has already been completed. In accordance with paragraph 1, a completed act occurs “at
the moment when the act is performed”, even though its effects or consequences may
continue. The words “at the moment” are intended to provide a more precise description
of the time frame when a completed wrongful act is performed, without requiring that the
act necessarily be completed in a single instant.
(3) In accordance with paragraph 2, a continuing wrongful act, on the other hand, occupies
the entire period during which the act continues and remains not in conformity with
the international obligation, provided that the State is bound by the international obliga-
[800] 236 See, e.g., Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,
p. 35; Phosphates in Morocco (footnote [28] 34 above), pp. 23–29; Electricity Company of Sofia and Bulgaria,
Judgment, 1939, P.C.I.J., Series A/B, No. 77, p. 64, at pp. 80–82; and Right of Passage over Indian
Territory (footnote [749] 207 above), pp. 33–36. The issue has often been raised before the organs of the
European Convention on Human Rights. See, e. g., the decision of the European Commission of Human
Rights in the De Becker v. Belgium case, application No. 214/56, Yearbook of the European Convention on
Human Rights, 1958–1959, p. 214, at pp. 234 and 244; and the Court’s judgments in Ireland v. The United
Kingdom, Eur. Court H.R., Series A, No. 25, p. 64 (1978); Papamichalopoulos and Others v. Greece, ibid.,
No. 260–B, para. 40 (1993); and Agrotexim and Others v. Greece, ibid., No. 330–A, p. 22, para. 58 (1995).
See also E. Wyler, “Quelques réflexions sur la réalisation dans le temps du fait internationalement illicite”,
RGDIP, vol. 95, p. 881 (1991).
Article 14 197
tion during that period.[801] 237 Examples of continuing wrongful acts include the maintenance
in effect of legislative provisions incompatible with treaty obligations of the enacting
State, unlawful detention of a foreign official or unlawful occupation of embassy premises,
maintenance by force of colonial domination, unlawful occupation of part of the territory
of another State or stationing armed forces in another State without its consent.
(4) Whether a wrongful act is completed or has a continuing character will depend both
on the primary obligation and the circumstances of the given case. For example, the Inter-
American Court of Human Rights has interpreted forced or involuntary disappearance
as a continuing wrongful act, one which continues for as long as the person concerned is
unaccounted for.[802] 238 The question whether a wrongful taking of property is a completed
or continuing act likewise depends to some extent on the content of the primary rule said
to have been violated. Where an expropriation is carried out by legal process, with the
consequence that title to the property concerned is transferred, the expropriation itself will
then be a completed act. The position with a de facto, “creeping” or disguised occupation,
however, may well be different.[803] 239 Exceptionally, a tribunal may be justified in refusing
to recognize a law or decree at all, with the consequence that the resulting denial of status,
ownership or possession may give rise to a continuing wrongful act.[804] 240
(5) Moreover, the distinction between completed and continuing acts is a relative one. A
continuing wrongful act itself can cease: thus a hostage can be released, or the body of a
disappeared person returned to the next of kin. In essence, a continuing wrongful act is
one which has been commenced but has not been completed at the relevant time. Where
a continuing wrongful act has ceased, for example by the release of hostages or the withdrawal
of forces from territory unlawfully occupied, the act is considered for the future
as no longer having a continuing character, even though certain effects of the act may
continue. In this respect, it is covered by paragraph 1 of article 14.
(6) An act does not have a continuing character merely because its effects or consequences
extend in time. It must be the wrongful act as such which continues. In many cases of
internationally wrongful acts, their consequences may be prolonged. The pain and suffering
caused by earlier acts of torture or the economic effects of the expropriation of
property continue even though the torture has ceased or title to the property has passed.
Such consequences are the subject of the secondary obligations of reparation, including
restitution, as required by Part Two of the articles. The prolongation of such effects will be
relevant, for example, in determining the amount of compensation payable. They do not,
however, entail that the breach itself is a continuing one.
(7) The notion of continuing wrongful acts is common to many national legal systems and
owes its origins in international law to Triepel.[805] 241 It has been repeatedly referred to by ICJ
and by other international tribunals. For example, in the United States Diplomatic and Consu-
[801] 237 See article 13 and commentary, especially para. (2).
[802] 238 Blake, Inter-American Court of Human Rights, Series C, No. 36, para. 67 (1998).
[803] 239 Papamichalopoulos (footnote [800] 236 above).
[804] 240 Loizidou, Merits (footnote [573] 160 above), p. 2216.
[805] 241 H. Triepel, Völkerrecht und Landesrecht (Leipzig, Hirschfeld, 1899), p. 289. The concept
was subsequently taken up in various general studies on State responsibility as well as in works on the
interpretation of the formula “situations or facts prior to a given date” used in some declarations of
acceptance of the compulsory jurisdiction of ICJ.
198 Article 14
lar Staff in Tehran case, the Court referred to “successive and still continuing breaches by Iran
of its obligations to the United States under the Vienna Conventions of 1961 and 1963”.[806] 242
(8) The consequences of a continuing wrongful act will depend on the context, as well as
on the duration of the obligation breached. For example, the “Rainbow Warrior” arbitration
involved the failure of France to detain two agents on the French Pacific island of Hao
for a period of three years, as required by an agreement between France and New Zealand.
The arbitral tribunal referred with approval to the Commission’s draft articles (now
amalgamated in article 14) and to the distinction between instantaneous and continuing
wrongful acts, and said:
Applying this classification to the present case, it is clear that the breach consisting in the failure of
returning to Hao the two agents has been not only a material but also a continuous breach. And this
classification is not purely theoretical, but, on the contrary, it has practical consequences, since the
seriousness of the breach and its prolongation in time cannot fail to have considerable bearing on the
establishment of the reparation which is adequate for a violation presenting these two features.[807] 243
The tribunal went on to draw further legal consequences from the distinction in terms of
the duration of French obligations under the agreement.[808] 244
(9) The notion of continuing wrongful acts has also been applied by the European Court
of Human Rights to establish its jurisdiction ratione temporis in a series of cases. The
issue arises because the Court’s jurisdiction may be limited to events occurring after the
respondent State became a party to the Convention or the relevant Protocol and accepted
the right of individual petition. Thus, in the Papamichalopoulos case, a seizure of property
not involving formal expropriation occurred some eight years before Greece recognized
the Court’s competence. The Court held that there was a continuing breach of the right to
peaceful enjoyment of property under article 1 of the Protocol to the European Convention
on Human Rights, which continued after the Protocol had come into force; it accordingly
upheld its jurisdiction over the claim.[809] 245
(10) In the Loizidou case,[810] 246 similar reasoning was applied by the Court to the consequences
of the Turkish invasion of Cyprus in 1974, as a result of which the applicant was
denied access to her property in northern Cyprus. Turkey argued that under article 159
of the Constitution of the Turkish Republic of Northern Cyprus of 1985, the property in
question had been expropriated, and this had occurred prior to Turkey’s acceptance of the
Court’s jurisdiction in 1990. The Court held that, in accordance with international law and
having regard to the relevant Security Council resolutions, it could not attribute legal effect
to the 1985 Constitution so that the expropriation was not completed at that time and the
property continued to belong to the applicant. The conduct of the Turkish Republic and
of Turkish troops in denying the applicant access to her property continued after Turkey’s
[806] 242 United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), p. 37,
para. 80. See also ibid., pages 36–37, paras. 78–79.
[807] 243 “Rainbow Warrior” (footnote [40] 46 above), p. 264, para. 101.
[808] 244 Ibid., pp. 265–266, paras. 105–106. But see the separate opinion of Sir Kenneth Keith, ibid.,
pp. 279–284.
[809] 245 See footnote [800] 236 above.
[810] 246 Loizidou, Merits (footnote [573] 160 above), p. 2216.
Article 14 199
acceptance of the Court’s jurisdiction, and constituted a breach of article 1 of the Protocol
to the European Convention on Human Rights after that time.[811] 247
(11) The Human Rights Committee has likewise endorsed the idea of continuing wrongful
acts. For example, in Lovelace, it held it had jurisdiction to examine the continuing
effects for the applicant of the loss of her status as a registered member of an Indian group,
although the loss had occurred at the time of her marriage in 1970 and Canada only
accepted the Committee’s jurisdiction in 1976. The Committee noted that it was:
not competent, as a rule, to examine allegations relating to events having taken place before the
entry into force of the Covenant and the Optional Protocol … In the case of Sandra Lovelace it follows
that the Committee is not competent to express any view on the original cause of her loss of
Indian status … at the time of her marriage in 1970 …
The Committee recognizes, however, that the situation may be different if the alleged violations,
although relating to events occurring before 19 August 1976, continue, or have effects which themselves
constitute violations, after that date.[812] 248
It found that the continuing impact of Canadian legislation, in preventing Lovelace from exercising
her rights as a member of a minority, was sufficient to constitute a breach of article 27 of
the International Covenant on Civil and Political Rights after that date. Here the notion of a
continuing breach was relevant not only to the Committee’s jurisdiction but also to the application
of article 27 as the most directly relevant provision of the Covenant to the facts in hand.
(12) Thus, conduct which has commenced some time in the past, and which constituted
(or, if the relevant primary rule had been in force for the State at the time, would have
constituted) a breach at that time, can continue and give rise to a continuing wrongful act
in the present. Moreover, this continuing character can have legal significance for various
purposes, including State responsibility. For example, the obligation of cessation contained
in article 30 applies to continuing wrongful acts.
(13) A question common to wrongful acts whether completed or continuing is when a
breach of international law occurs, as distinct from being merely apprehended or imminent.
As noted in the context of article 12, that question can only be answered by reference
to the particular primary rule. Some rules specifically prohibit threats of conduct,[813] 249
incitement or attempt,[814] 250 in which case the threat, incitement or attempt is itself a
[811] 247 Ibid., pp. 2230–2232, 2237–2238, paras. 41–47 and 63–64. See, however, the dissenting opinion
of Judge Bernhardt, p. 2242, para. 2 (with whom Judges Lopes Rocha, Jambrek, Pettiti, Baka and
Gölcüklü in substance agreed). See also Loizidou, Preliminary Objections (footnote [573] 160 above),
pp. 33–34, paras. 102–105; and Cyprus v. Turkey, application No. 25781/94, judgement of 10 May 2001,
Eur. Court H.R., Reports, 2001–IV.
[812] 248 Lovelace v. Canada, Official Records of the General Assembly, Thirty-sixth Session, Supplement
No. 40 (A/36/40), annex XVIII, communication No. R.6/24, p. 172, paras. 10–11 (1981).
[813] 249 Notably, Article 2, paragraph 4, of the Charter of the United Nations prohibits “the threat or
use of force against the territorial integrity or political independence of any state”. For the question of what
constitutes a threat of force, see Legality of the Threat or Use of Nuclear Weapons (footnote [48] 54 above),
pp. 246–247, paras. 47–48; see also R. Sadurska, “Threats of force”, AJIL, vol. 82, No. 2 (April 1988), p. 239.
[814] 250 A particularly comprehensive formulation is that of article III of the Convention on the
Prevention and Punishment of the Crime of Genocide which prohibits conspiracy, direct and public
incitement, attempt and complicity in relation to genocide. See also article 2 of the International Con200
Article 14
wrongful act. On the other hand, where the internationally wrongful act is the occurrence
of some event—e.g. the diversion of an international river—mere preparatory conduct is
not necessarily wrongful.[815] 251 In the Gabčíkovo-Nagymaros Project case, the question was
when the diversion scheme (“Variant C”) was put into effect. ICJ held that the breach did
not occur until the actual diversion of the Danube. It noted:
that between November 1991 and October 1992, Czechoslovakia confined itself to the execution,
on its own territory, of the works which were necessary for the implementation of Variant C, but
which could have been abandoned if an agreement had been reached between the parties and did
not therefore predetermine the final decision to be taken. For as long as the Danube had not been
unilaterally dammed, Variant C had not in fact been applied.
Such a situation is not unusual in international law or, for that matter, in domestic law. A wrongful
act or offence is frequently preceded by preparatory actions which are not to be confused with the
act or offence itself. It is as well to distinguish between the actual commission of a wrongful act
(whether instantaneous or continuous) and the conduct prior to that act which is of a preparatory
character and which “does not qualify as a wrongful act”. [816] 252
Thus, the Court distinguished between the actual commission of a wrongful act and conduct
of a preparatory character. Preparatory conduct does not itself amount to a breach if
it does not “predetermine the final decision to be taken”. Whether that is so in any given
case will depend on the facts and on the content of the primary obligation. There will be
questions of judgement and degree, which it is not possible to determine in advance by the
use of any particular formula. The various possibilities are intended to be covered by the
use of the term “occurs” in paragraphs 1 and 3 of article 14.
(14) Paragraph 3 of article 14 deals with the temporal dimensions of a particular category
of breaches of international obligations, namely the breach of obligations to prevent the
occurrence of a given event. Obligations of prevention are usually construed as best efforts
obligations, requiring States to take all reasonable or necessary measures to prevent a given
event from occurring, but without warranting that the event will not occur. The breach
of an obligation of prevention may well be a continuing wrongful act, although, as for
other continuing wrongful acts, the effect of article 13 is that the breach only continues if
the State is bound by the obligation for the period during which the event continues and
remains not in conformity with what is required by the obligation. For example, the obligation
to prevent transboundary damage by air pollution, dealt with in the Trail Smelter
vention for the Suppression of Terrorist Bombings and article 2 of the International Convention for the
Suppression of the Financing of Terrorism.
[815] 251 In some legal systems, the notion of “anticipatory breach” is used to deal with the definitive
refusal by a party to perform a contractual obligation, in advance of the time laid down for its performance.
Confronted with an anticipatory breach, the party concerned is entitled to terminate the contract
and sue for damages. See K. Zweigert and H. Kötz, Introduction to Comparative Law, 3rd rev. ed., trans.
T. Weir (Oxford, Clarendon Press, 1998), p. 508. Other systems achieve similar results without using
this concept, e.g. by construing a refusal to perform in advance of the time for performance as a “positive
breach of contract”, ibid., p. 494 (German law). There appears to be no equivalent in international law,
but article 60, paragraph 3 (a), of the 1969 Vienna Convention defines a material breach as including “a
repudiation … not sanctioned by the present Convention”. Such a repudiation could occur in advance
of the time for performance.
[816] 252 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 54, para. 79, citing the draft commentary
to what is now article 30.
Article 14 201
arbitration,[817] 253 was breached for as long as the pollution continued to be emitted. Indeed,
in such cases the breach may be progressively aggravated by the failure to suppress it. However,
not all obligations directed to preventing an act from occurring will be of this kind.
If the obligation in question was only concerned to prevent the happening of the event in
the first place (as distinct from its continuation), there will be no continuing wrongful
act.[818] 254 If the obligation in question has ceased, any continuing conduct by definition
ceases to be wrongful at that time.[819] 255 Both qualifications are intended to be covered by
the phrase in paragraph 3, “and remains not in conformity with that obligation”.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal
Case concerning the difference between New Zealand and France concerning the interpretation
or application of two agreements concluded on 9 July 1986 between the two States
and which related to the problems arising from the Rainbow Warrior Affair
In its 1990 award in the Rainbow Warrior case, the arbitral tribunal, having determined
that France had committed a material breach of its obligations to New Zealand,
referred to the distinction made by the International Law Commission between an instantaneous
breach and a breach having a continuing character, as it appeared in draft article
24 and draft article 25, paragraph 1,[820] 123 provisionally adopted:
In its codification of the law of State responsibility, the International Law Commission has made
another classification of the different types of breaches, taking into account the time factor as an
ingredient of the obligation. It is based on the determination of what is described as tempus commissi
delictu, that is to say, the duration or continuation in time of the breach. Thus the Commis-
[817] 253 Trail Smelter, UNRIAA, (vol. III Sales No. 1949.V.2), p. 1905 (1938, 1941).
[818] 254 An example might be an obligation by State A to prevent certain information from being
published. The breach of such an obligation will not necessarily be of a continuing character, since it may
be that once the information is published, the whole point of the obligation is defeated.
[819] 255 See the “Rainbow Warrior” case (footnote [40] 46 above), p. 266.
[820] 123 These provisions were amended and incorporated in article 14 finally adopted by the International
Law Commission in 2001. Draft article 24 provisionally adopted [in 1980] read as follows:
Article 24
Moment and duration of the breach of an international obligation
by an act of the State not extending in time
The breach of an international obligation by an act of the State not extending in time
occurs at the moment when that act is performed. The time of commission of the breach
does not extend beyond that moment, even if the effects of the act of the State continue subsequently.
(Yearbook … 1980, vol. II (Part Two), para. 34.)
Paragraph 1 of draft article 25 (Moment and duration of the breach of an international
obligation by an act of the State extending in time) provisionally adopted read as follows:
1. The breach of an international obligation by an act of the State having a continuing
character occurs at the moment when that act begins. Nevertheless, the time of commission of
the breach extends over the entire period during which the act continues and remains not in
conformity with the international obligation. (Yearbook … 1980, vol. II (Part Two), para. 34.)
202 Article 14
sion distinguishes the breach which does not extend in time, or instantaneous breach, defined in
article 24 of the draft, from the breach having a continuing character or extending in time. In the
latter case, according to paragraph 1 of article 25, “the time of commission of the breach extends
over the entire period during which the act continues and remains not in conformity with the
international obligation”.
Applying this classification to the present case, it is clear that the breach consisting in the failure of
returning to Hao the two agents [Major Mafart and Captain Prieur, as provided for under the agreement
between the Parties,] has been not only a material but also a continuous breach.
And this classification is not purely theoretical, but, on the contrary, it has practical consequences,
since the seriousness of the breach and its prolongation in time cannot fail to have considerable
bearing on the establishment of the reparation which is adequate for a violation presenting these
two features.[821] 124
The arbitral tribunal again referred to draft article 25 provisionally adopted in the context
of the determination of the time of commission of the breach by France. It noted that, in
the case of breaches extending or continuing in time,
[a]ccording to article 25, “the time of commission of the breach” extends over the entire period
during which the unlawful act continues to take place. [It thus followed that] France committed
a continuous breach of its obligations, without any interruption or suspension, during the whole
period when the two agents remained in Paris in breach of the Agreement.[822] 125
[A/62/62, para. 75]
International arbitral tribunal
Libyan Arab Foreign Investment Company (LAFICO) and the Republic of Burundi
In its 1991 award, the arbitral tribunal established to hear the LAFICO-Burundi case,
in order to determine the moment when the unlawful act was performed for the purposes
of deciding the scope of the damages due, found that Burundi’s violation in that case was of
a continuing nature and thereafter referred to paragraph 1 of draft article 25 provisionally
adopted by the International Law Commission,[823] 126 which was quoted in the award.[824] 127
[A/62/62, para. 76]
[821] 124 Case concerning the difference between New Zealand and France concerning the interpretation
or application of two agreements concluded on 9 July 1986 between the two States and which related
to the problems arising from the Rainbow Warrior Affair, Arbitral Award, 30 April 1990, para. 101, reproduced
in UNRIAA, vol. XX, pp. 263–264.
[822] 125 Ibid., pp. 265–266, para. 105.
[823] 126 This provision was amended and incorporated in article 14, paragraph 2, finally adopted by
the International Law Commission in 2001. For the text of this provision, see footnote [820] 123 above.
[824] 127 Arbitral Award of 4 March 1991, para. 66 (English version in: International Law Reports,
vol. 96, pp. 323–324).
Article 14 203
International Court of Justice
Gabčíkovo-Nagymaros Project (Hungary/Slovakia)
In its 1997 judgment in the Gabčíkovo-Nagymaros Project case, the Court referred to
the commentary to draft article 41, as adopted by the International Law Commission on
first reading:[825] 128
A wrongful act or offence is frequently preceded by preparatory actions which are not to be confused
with the act or offence itself. It is as well to distinguish between the actual commission of a wrongful
act (whether instantaneous or continuous) and the conduct prior to that act which is of a preparatory
character and which “does not qualify as a wrongful act” (see for example the commentary on
article 41 of the draft articles on State responsibility, … Yearbook of the International Law Commission,
1993, vol. II (Part Two), p. 57, para. 14).[826] 129
[A/62/62, para. 77]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Mondev International Ltd. v. United States of America
In its 2002 award, the arbitral tribunal constituted in accordance with chapter 11
of NAFTA to hear the Mondev v. United States case referred to article 14, paragraph 1,
finally adopted by the International Law Commission in 2001 in support of its statement
that “there is a distinction between an act of a continuing character and an act, already
completed, which continues to cause loss or damage”.[827] 130
[A/62/62, para. 78]
Técnicas Medioambientales Tecmed S.A. v. United Mexican States
In its 2003 award, the arbitral tribunal constituted to hear the Técnicas Medioambientales
Tecmed S.A. v. United Mexican States case referred in a footnote to the commentary
to articles 14 and 15 finally adopted by the International Law Commission to support the
statement that “[w]hether it be conduct that continues in time, or a complex act whose
constituting elements are in a time period with different durations, it is only by observation
as a whole or as a unit that it is possible to see to what extent a violation of a treaty or
of international law rises or to what extent damage is caused”.[828] 131
[A/62/62, para. 79]
[825] 128 The extract of the commentary to draft article 41 (Cessation of wrongful conduct) by the
International Law Commission referred to by the Court in the quoted passage was not retained in the commentary
to article 30 (Cessation and non-repetition) as finally adopted in 2001. However, the International
Law Commission included a citation of this passage of the Court’s judgment in its commentary to article 14
finally adopted in 2001. For this reason, the said passage is hereby reproduced with reference to article 14.
[826] 129 See footnote [31] 37 above, p. 54, para. 79.
[827] 130 NAFTA (ICSID Additional Facility), Case No. ARB(AF)/99/2, Award, 11 October 2002,
para. 58 and footnote 9, reproduced in ILR, vol. 125, p. 128.
[828] 131 ICSID, Case No. ARB(AF)/00/2, Award, 29 May 2003, para. 62, footnote 26 (unofficial English
translation of the Spanish original). The passages of the commentaries to articles 14 and 15 referred
to can be found in [Yearbook of the International Law Commission, 2001, vol. II (Part Two)], para. 77.
204 Article 14
European Court of Human Rights
Ilaşcu and others v. Moldova and Russia
In its 2004 judgement in the Ilaşcu and others v. Moldova and Russia case, the European
Court, sitting as a Grand Chamber, after having observed that the principle of “State
responsibility for the breach of an international obligation” was a “recognized principle of
international law”, referred in particular to the commentary to article 14, paragraph 2, and
to article 15, paragraph 2, as finally adopted by the International Law Commission in 2001:
320. Another recognized principle of international law is that of State responsibility for the breach
of an international obligation, as evidenced by the work of the International Law Commission.
321. A wrongful act may be described as continuing if it extends over the entire period during which
the relevant conduct continues and remains at variance with the international obligation (see the
commentary on draft article 14 § 2 … of the work of the International Law Commission).
In addition, the Court considers that, in the case of a series of wrongful acts or omissions, the breach
extends over the entire period starting with the first of the acts and continuing for as long as the acts
or omissions are repeated and remain at variance with the international obligation concerned (see
also draft article 15 § 2 of the work of the International Law Commission).[829] 132
[A/62/62, para. 80]
International arbitral tribunal (under the ICSID Convention)
Impregilo S.p.A. v. Islamic Republic of Pakistan
In its 2005 decision on jurisdiction, the arbitral tribunal constituted to hear the
Impregilo v. Pakistan case noted that Impregilo had invoked article 14 finally adopted by
the International Law Commission in 2001, “which, in its opinion, reflects customary
international law”, to allege that Pakistan’s acts previous to the date of entry into force of
the bilateral investment treaty had to conform to the provisions of that treaty. According to
the tribunal, “[w]hether or not this article does in fact reflect customary international law
need not be addressed for present purposes”: the case before the tribunal was not covered
by article 14, since the acts in question had no “continuing character” within the meaning
of that provision.[830] 133
[A/62/62, para. 81]
European Court of Human Rights
Blečić v. Croatia
In its 2006 judgement in the Blečić v. Croatia case, the European Court, sitting as a
Grand Chamber, quoted, inter alia, the text of article 14 finally adopted by the International
Law Commission in 2001. The relevant passage is quoted [on page 192] above.
[A/62/62, para. 82]
[829] 132 ECHR, Grand Chamber, Application No. 48787/99, Judgment, 8 July 2004, paras. 320–321.
[830] 133 ICSID, Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005, para. 312.
Article 14 205
International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro)
In its 2007 judgment in the Genocide case, the Court, in examining whether the
Respondent had complied with its obligations to prevent genocide under article I of the
Genocide Convention, referred to the “general rule of the law of State responsibility” stated
in article 14, paragraph 3, finally adopted by the International Law Commission in 2001:
a State can be held responsible for breaching the obligation to prevent genocide only if genocide was
actually committed. It is at the time when commission of the prohibited act (genocide or any of the
other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention
occurs. In this respect, the Court refers to a general rule of the law of State responsibility, stated
by the ILC in Article 14, paragraph 3, of its Articles on State Responsibility: …
This obviously does not mean that the obligation to prevent genocide only comes into being when
perpetration of genocide commences; that would be absurd, since the whole point of the obligation
is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent,
and the corresponding duty to act, arise at the instant that the State learns of, or should normally
have learned of, the existence of a serious risk that genocide will be committed. From that moment
onwards, if the State has available to it means likely to have a deterrent effect on those suspected
of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is
under a duty to make such use of these means as the circumstances permit. However, if neither
genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out,
then a State that omitted to act when it could have done so cannot be held responsible a posteriori,
since the event did not happen which, under the rule set out above, must occur for there to be a
violation of the obligation to prevent.”[831] 8
[A/62/62/Add.1, para. 4]
European Court of Human Rights
Šilih v. Slovenia
In the Šilih v. Slovenia case, the European Court of Human Rights referred to article 14
of the State responsibility articles as constituting “relevant international law and practice” in
the context of the consideration of the jurisdiction ratione temporis of the court.[832] 15
[A/65/76, para. 19]
Varnava and Others v. Turkey
In the Varnava and Others v. Turkey case, the European Court of Human Rights, in
a case involving alleged disappearance of individuals 15 years prior to the initiation of
the case, had to consider the applicability of the six-month time limit for the bringing of a
complaint under the Convention of an alleged continuing violation. The Court maintained
that “[n]ot all continuing situations are the same; the nature of the situation may be such
that the passage of time affects what is at stake … [and] where disappearances are con-
[831] 8 [ICJ, Judgment, I.C.J. Reports 2007, p. 43], para. 431.
[832] 15 [ECHR, Grand Chamber, Application No. 71463/01, Judgment, 9 April 2009], para. 108.
206 Article 14
cerned, applicants cannot wait indefinitely before coming to Strasbourg. They must make
proof of a certain amount of diligence and initiative and introduce their complaints without
undue delay”.[833] 16 It proceeded to hold, nonetheless, that the “applicants had acted,
in the special circumstances of their cases, with reasonable expedition for the purposes
of … the [European Convention on Human Rights]”.[834] 17
[A/65/76, para. 20]
Inter-American Court of Human Rights
Radilla Pacheco v. United Mexican States
In the 2009 Radilla Pacheco v. Mexico case, the Inter-American Court of Human Rights
cited article 14, paragraph 2, of the State responsibility articles (which it quoted) when distinguishing
between instantaneous acts and those of a continuing or permanent nature.[835] 18
[A/65/76, para. 21]
Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil
In its judgment in Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, the Inter-
American Court of Human Rights referred to article 14 in support of the assertion that
“acts of a continuous or permanent nature extend throughout time wherein the event
continues, maintaining a lack of conformity with international obligations”.[836] 107
[A/68/72, para. 78]
[International arbitral tribunal (under UNCITRAL Rules)
Sergei Paushok et al. v. The Government of Mongolia
The arbitral tribunal in Sergei Paushok et al. v. The Government of Mongolia referred
to the commentary to articles 14 and 15 dealing with continuing and composite acts, and
determined that certain negotiations did not constitute continuing or composite acts or
omissions.[837] 117
[See A/68/72, footnote 106 and para. 84]]
[833] 16 ECHR, Grand Chamber, Application Nos. 16064/90, 16065/90, 16066/90, 16068/90,
16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, Judgment, 18 September 2009, para. 161.
[834] 17 Ibid., para. 170.
[835] 18 IACHR, Preliminary Objections, Merits, Reparations, and Costs, Judgment, 23 November
2009, para. 22.
[836] 107 IACHR, Judgment, Series C, No. 219, 24 November 2010, para. 17, footnote 24.
[837] [117 See footnote [299] 41 above, paras. 496–500.]
Article 14 207
World Trade Organization Appellate Body
European Communities and Certain Member States—Measures Affecting Trade in Large
Civil Aircraft
In its report in European Communities and Certain Member States—Measures Affecting
Trade in Large Civil Aircraft, the Appellate Body referred to article 14 in determining
that, under the SCM Agreement, it is the causing of “adverse effects to the interests of
other Members … that is relevant … and the conclusion as to retroactivity will hinge on
whether that situation continues or has been completed, rather than on when the act of
granting a subsidy occurred”.[838] 108 While agreeing that, on the basis of article 14, “it is
important to distinguish between an act and its effects”, the tribunal indicated that “the
SCM Agreement is concerned, however, with a situation that continues over time, rather
than with specific ‘acts’”.[839] 109
[A/68/72, para. 79]
International arbitral tribunal (under the ICSID Convention)
Pac Rim Cayman LLC v. The Republic of El Salvador
The arbitral tribunal constituted to hear the Pac Rim Cayman LLC v. The Republic of
El Salvador case considered the “well-established distinctions under customary international
law” recognized in the commentary to articles 14 and 15 between a “one-time act”,
a “continuous act” and a “composite act”.[840] 110 Upon consideration of the commentary to
articles 14 and 15, as well as the factual circumstances of the dispute,[841] 111 the tribunal
determined that the alleged measure “should be considered as a continuing act under
international law … ”.[842] 112
[A/68/72, para. 80]
Inter-American Court of Human Rights
Castillo González et al. v. Venezuela
In its 2012 judgment in Castillo González et al. v. Venezuela, the Inter-American Court
of Human Rights cited article 14(3) in holding that “international responsibility of the State
may arise from human rights violations committed by individuals or third parties, in the
context of the State’s obligations to ensure respect for human rights among individuals”.[843] 113
[A/68/72, para. 81]
[838] 108 WTO, Appellate Body Report, WT/DS316/AB/R, 18 May 2011, para. 684.
[839] 109 Ibid., para. 685 (internal quotations omitted).
[840] 110 ICSID, Case No. ARB/09/12, Decision on Respondent’s Jurisdictional Objections, 1 June
2012, paras. 2.65–2.74.
[841] 111 Ibid., paras. 2.65–2.93.
[842] 112 Ibid, para. 2.94.
[843] 113 See footnote [108] 51 above, para. 111, footnote 53 (quoting article 14.3 of the State responsibility
articles).
208 Article 14
European Court of Human Rights
El-Masri v. The Former Yugoslav Republic of Macedonia
In its 2012 judgment in the case of El-Masri v. The Former Yugoslav Republic of Macedonia,
the European Court of Human Rights referred to articles 7, 14, 15 and 16 of the
State responsibility articles as relevant international law.[844] 114
[A/68/72, para. 82]
[Husayn (Abu Zubaydah) v. Poland
In Husayn (Abu Zubaydah) v. Poland, the European Court of Human Rights listed
articles 7, 14, 15 and 16 as relevant international law.[845] 85
[A/71/80, para. 68]]
Inter-American Court of Human Rights
Case of Osorio Rivera and Family Members v. Peru
In Case of Osorio Rivera and Family Members v. Peru, the Inter-American Court of Human
Rights cited article 14 in support of the statement that “[o]wing to their characteristics, once the
treaty enters into force, those continuing or permanent acts which persist after that date can
generate international obligations for the State party, without this signifying a violation of the
principle of the non-retroactivity of treaties”.[846] 118 The Court continued by explaining that it
ha[d] already established that it is competent to examine violations of a continuing or permanent
nature that commenced before the defendant State had accepted the Court’s contentious jurisdiction,
and that persist following this acceptance, because they continue to be committed and, thus,
the principle of non-retroactivity is not infringed.[847] 119
[A/71/80, para. 87]
International arbitral tribunal (under the ICSID Convention)
Cervin Investissements S.A. and Rhone Investissements v. Republic of Costa Rica
The arbitral tribunal in Cervin Investissements S.A. and Rhone Investissements v.
Republic of Costa Rica referred to article 14 in support of its assertion that “[l]a responsabilidad
internacional del Estado debe en efecto apreciarse a la fecha en la cual ha sido
cometido el hecho generador de su responsabilidad”.[848] 120
[A/71/80, para. 88]
[844] 114 See footnote [552] 84 above.
[845] [85 ECHR, Former Fourth Section, Application No. 7511/13, Judgment, 24 July 2014, para. 201.]
[846] 118 IACHR, Judgment, 26 November 2013, para. 30.
[847] 119 Ibid., para. 32, referring to IACHR, Case of the Serrano Cruz Sisters v. El Salvador, Preliminary
objections, Judgment, 23 November 2004, paras. 65–66, and IACHR, Case of Radilla Pacheco v.
Mexico, Preliminary Objections, merits, reparations and costs, Judgment, 23 November 2009, para. 24.
[848] 120 ICSID, Case No. ARB/13/2, Decision on Jurisdiction 15 December 2014, para. 278.
Article 14 209
International arbitral tribunal (under the ICSID Convention)
Adel A Hamadi Al Tamimi v. Sultanate of Oman
In Adel A Hamadi Al Tamimi v. Sultanate of Oman, the arbitral tribunal relied on the
commentary to article 14 as supporting the view that “[a]n act does not have a continuing
character merely because its effects or consequences extend in time”.[849] 121
[A/71/80, para. 89]
[European Court of Human Rights
Nasr et Ghali v. Italy
The European Court of Human Rights in Nasr et Ghali v. Italy referred to articles 7,
14, 15 and 16 of the State responsibility articles as relevant international law.[850] 82
[A/74/83, p. 17]]
Permanent Court of Arbitration (under UNCITRAL Rules)
Resolute Forest Products Inc. v. Government of Canada
In Resolute Forest Products Inc. v. Government of Canada, the arbitral tribunal
explained, after quoting article 14, paragraph 2, of the State responsibility articles on a breach
having a continuing character, that “the breach nonetheless occurs when the State act is first
perfected and can be definitely characterized as a breach of the relevant obligation”.[851] 124
[A/74/83, p. 23]
[Renco Group v. Republic of Peru
In Renco Group v. Republic of Peru, the arbitral tribunal noted that articles 13 and 14
reflected
the general principle that the lawfulness of State conduct must be assessed contemporaneously with
that conduct. Since a State is not bound by a conventional obligation it has assumed under a treaty
until such treaty enters into force, that treaty obligation cannot be breached until the treaty giving
rise to that obligation has come into force.[852] 83
[A/77/74, p. 17]]
[849] 121 See footnote [340] 66 above, para. 417, footnote 850 (quoting para. (6) of the commentary
to article 14).
[850] [82 ECHR, Fourth Section, Application 44883/09, Judgment, 23 February 2016, para. 185.]
[851] 124 PCA, Case No. 2016–13, Decision on Jurisdiction and Admissibility, 30 January 2018, para. 179.
[852] [83 PCA, Case No. 2019–46, Decision on Expedited Preliminary Objections, 30 June 2020,
paras. 141–142.]
210 Article 14
Committee on Economic, Social and Cultural Rights
S.C. and G.P. v. Italy
In S.C. and G.P. v. Italy, the Committee on Economic, Social and Cultural Rights
referred to article 14 in analysing the admissibility of the communication, noting that
an act that may constitute a violation of the Covenant does not have a continuing character merely
because its effects or consequences extend in time. Therefore, when the facts constituting a violation
of the Covenant occurred before the entry into force of the Optional Protocol for the State party concerned,
the mere fact that their consequences or effects have not been extinguished, after the entry
into force, is not sufficient grounds for declaring a communication admissible ratione temporis.[853] 88
[A/77/74, p. 18]
International arbitral tribunal (under the ICSID Convention)
Carlos Ríos and Francisco Ríos v. Republic of Chile
In Carlos Ríos and Francisco Ríos v. Republic of Chile, the arbitral tribunal referred to
article 14, according to which “a simple internationally wrongful act is one that does not
have a continuing character and, as such, ‘occurs at the moment when the act is performed,
even if its effects continue’.”[854] 89 In contrast, “a continuing wrongful act extends over the
period during which the violative act maintains the state of noncompliance with a particular
obligation. The breach ceases once the effects of the act cease or the primary obligation
no longer exists”.[855] 90 The arbitral tribunal emphasized that pursuant to article 14,
determining whether a wrongful act is simple or continuing depends primarily on the content of
the primary obligation, which indicates whether the obligation can be breached continuously (for
example, during the illegal detention of a foreign public official) or not (for example, in an isolated
instance of the unlawful use of force).[856] 91
[A/77/74, p. 18]
Infinito Gold Ltd. v. Republic of Costa Rica
The arbitral tribunal in Infinito Gold Ltd. v. Republic of Costa Rica referred to article 14
and the commentary thereto in establishing that it must “determine the point in time in
which an act is capable of constituting an international wrong”.[857] 92 In particular, the
tribunal cited paragraph (13) of the commentary in distinguishing preparatory conduct
for an act from the act itself.[858] 93 The tribunal concluded “that a simple act ‘occurs’ when
it has been ‘performed’ or ‘completed’; that the concept of ‘completion’ relates to the point
[853] 88 CESCR, Communication No. E/C.12/65/D/22/2017, 7 March 2019, para. 6.5, referring to Merino
Sierra and Marino Sierra v. Spain, Communication No. E/C.12/59/D/4/2014, 29 September 2016, para. 6.7,
and Alarcón Flores et al. v. Ecuador, Communication No. E/C.12/62/D/14/2016, 4 October 2017, para. 9.7.
[854] 89 See footnote [386] 36 above, para. 187.
[855] 90 Ibid., para. 200.
[856] 91 Ibid.
[857] 92 ICSID, Case No. ARB/14/5, Award, 3 June 2021, para. 231; see also paras. 232–234.
[858] 93 Ibid., para. 234.
Article 14 211
in time at which the act is capable of constituting a breach, which depends on the content
of the primary obligation; and that a breach need not be completed in a single act”.[859] 94
[A/77/74, p. 18]
[Ad hoc committee (under the ICSID Convention)
Víctor Pey Casado and Foundation President Allende v. Republic of Chile
The ad hoc committee in the annulment proceeding Víctor Pey Casado and Foundation
President Allende v. Republic of Chile rejected an argument that the nature of the violation
as a single act or continuous conduct could affect the analysis pertaining to adequate
compensation. Instead, it noted that
[i]t does not make any difference whether a wrongful act is a single act or ‘a course of conduct’,
as explicitly provided for in Articles 14 and 15 of the Articles on State Responsibility. A course of
conduct cannot remove the wrongfulness of one or many acts, and it cannot remove the obligation
of the wrongdoer to make full reparation for injury, as provided for in Article 31 of the Articles on
State Responsibility.[860] 132
[A/77/74, p. 25]]
[859] 94 Ibid., para. 235.
[860] [132 ICSID, Case No. ARB/98/2[, Decision on Annulment, 8 January 2020], para. 681.]
212
Article 15. Breach consisting of a composite act
1. The breach of an international obligation by a State through a series of actions
or omissions defined in aggregate as wrongful occurs when the action or omission occurs
which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.
2. In such a case, the breach extends over the entire period starting with the first
of the actions or omissions of the series and lasts for as long as these actions or omissions
are repeated and remain not in conformity with the international obligation.
Commentary
(1) Within the basic framework established by the distinction between completed and continuing
acts in article 14, article 15 deals with a further refinement, viz. the notion of a composite
wrongful act. Composite acts give rise to continuing breaches, which extend in time
from the first of the actions or omissions in the series of acts making up the wrongful conduct.
(2) Composite acts covered by article 15 are limited to breaches of obligations which concern
some aggregate of conduct and not individual acts as such. In other words, their focus
is “a series of acts or omissions defined in aggregate as wrongful”. Examples include the
obligations concerning genocide, apartheid or crimes against humanity, systematic acts of
racial discrimination, systematic acts of discrimination prohibited by a trade agreement,
etc. Some of the most serious wrongful acts in international law are defined in terms of
their composite character. The importance of these obligations in international law justifies
special treatment in article 15.[861] 256
(3) Even though it has special features, the prohibition of genocide, formulated in identical
terms in the Convention on the Prevention and Punishment of the Crime of Genocide
and in later instruments,[862] 257 may be taken as an illustration of a “composite” obligation.
It implies that the responsible entity (including a State) will have adopted a systematic policy
or practice. According to article II, subparagraph (a), of the Convention, the prime case
of genocide is “[k]illing members of the [national, ethnical, racial or religious] group” with
the intent to destroy that group as such, in whole or in part. Both limbs of the definition
contain systematic elements. Genocide has also to be carried out with the relevant intention,
aimed at physically eliminating the group “as such”. Genocide is not committed until
there has been an accumulation of acts of killing, causing harm, etc., committed with the
relevant intent, so as to satisfy the definition in article II. Once that threshold is crossed,
the time of commission extends over the whole period during which any of the acts was
committed, and any individual responsible for any of them with the relevant intent will
have committed genocide.[863] 258
[861] 256 See further J. J. A. Salmon, “Le fait étatique complexe: une notion contestable”, Annuaire
français de droit international, vol. 28 (1982), p. 709.
[862] 257 See, e.g., article 4 of the statute of the International Tribunal for the Former Yugoslavia,
originally published as an annex to document S/25704 and Add.1, approved by the Security Council in
its resolution 827 (1993) of 25 May 1993, and amended on 13 May 1998 by resolution 1166 (1998) and on
30 November 2000 by resolution 1329 (2000); article 2 of the statute of the International Tribunal for
Rwanda, approved by the Security Council in its resolution 955 (1994) of 8 November 1994; and article 6
of the Rome Statute of the International Criminal Court.
[863] 258 The intertemporal principle does not apply to the Convention, which according to its
article I is declaratory. Thus, the obligation to prosecute relates to genocide whenever committed. See
Article 15 213
(4) It is necessary to distinguish composite obligations from simple obligations breached
by a “composite” act. Composite acts may be more likely to give rise to continuing breaches,
but simple acts can cause continuing breaches as well. The position is different, however,
where the obligation itself is defined in terms of the cumulative character of the conduct,
i.e. where the cumulative conduct constitutes the essence of the wrongful act. Thus, apartheid
is different in kind from individual acts of racial discrimination, and genocide is
different in kind from individual acts even of ethnically or racially motivated killing.
(5) In Ireland v. United Kingdom, Ireland complained of a practice of unlawful treatment
of detainees in Northern Ireland which was said to amount to torture or inhuman or
degrading treatment, and the case was held to be admissible on that basis. This had various
procedural and remedial consequences. In particular, the exhaustion of local remedies
rule did not have to be complied with in relation to each of the incidents cited as part of
the practice. But the Court denied that there was any separate wrongful act of a systematic
kind involved. It was simply that Ireland was entitled to complain of a practice made up by
a series of breaches of article VII of the Convention on the Prevention and Punishment of
the Crime of Genocide, and to call for its cessation. As the Court said:
A practice incompatible with the Convention consists of an accumulation of identical or analogous
breaches which are sufficiently numerous and inter-connected to amount not merely to isolated
incidents or exceptions but to a pattern or system; a practice does not of itself constitute a violation
separate from such breaches …
The concept of practice is of particular importance for the operation of the rule of exhaustion of
domestic remedies. This rule, as embodied in Article 26 of the Convention, applies to State applications
… in the same way as it does to “individual’ applications” … On the other hand and in principle,
the rule does not apply where the applicant State complains of a practice as such, with the aim
of preventing its continuation or recurrence, but does not ask the Commission or the Court to give
a decision on each of the cases put forward as proof or illustrations of that practice.[864] 259
In the case of crimes against humanity, the composite act is a violation separate from the
individual violations of human rights of which it is composed.
(6) A further distinction must be drawn between the necessary elements of a wrongful
act and what might be required by way of evidence or proof that such an act has occurred.
For example, an individual act of racial discrimination by a State is internationally
wrongful,[865] 260 even though it may be necessary to adduce evidence of a series of acts by State
officials (involving the same person or other persons similarly situated) in order to show that
any one of those acts was discriminatory rather than actuated by legitimate grounds. In its
essence such discrimination is not a composite act, but it may be necessary for the purposes
of proving it to produce evidence of a practice amounting to such an act.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections (footnote [48] 54 above), p. 617, para. 34.
[864] 259 Ireland v. The United Kingdom (footnote [800] 236 above), p. 64, para. 159; see also ibid.,
page 63, para. 157. See further the United States counterclaim in Oil Platforms (Islamic Republic of Iran
v. United States of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998, p. 190, which
likewise focuses on a general situation rather than specific instances.
[865] 260 See, e.g., article 2 of the International Convention on the Elimination of All Forms of Racial
Discrimination; and article 26 of the International Covenant on Civil and Political Rights.
214 Article 15
(7) A consequence of the character of a composite act is that the time when the act is
accomplished cannot be the time when the first action or omission of the series takes
place. It is only subsequently that the first action or omission will appear as having, as it
were, inaugurated the series. Only after a series of actions or omissions takes place will the
composite act be revealed, not merely as a succession of isolated acts, but as a composite
act, i.e. an act defined in aggregate as wrongful.
(8) Paragraph 1 of article 15 defines the time at which a composite act “occurs” as the
time at which the last action or omission occurs which, taken with the other actions or
omissions, is sufficient to constitute the wrongful act, without it necessarily having to be
the last in the series. Similar considerations apply as for completed and continuing wrongful
acts in determining when a breach of international law exists; the matter is dependent
upon the precise facts and the content of the primary obligation. The number of actions or
omissions which must occur to constitute a breach of the obligation is also determined by
the formulation and purpose of the primary rule. The actions or omissions must be part
of a series but the article does not require that the whole series of wrongful acts has to be
committed in order to fall into the category of a composite wrongful act, provided a sufficient
number of acts has occurred to constitute a breach. At the time when the act occurs
which is sufficient to constitute the breach it may not be clear that further acts are to follow
and that the series is not complete. Further, the fact that the series of actions or omissions
was interrupted so that it was never completed will not necessarily prevent those actions
or omissions which have occurred being classified as a composite wrongful act if, taken
together, they are sufficient to constitute the breach.
(9) While composite acts are made up of a series of actions or omissions defined in aggregate
as wrongful, this does not exclude the possibility that every single act in the series
could be wrongful in accordance with another obligation. For example, the wrongful act
of genocide is generally made up of a series of acts which are themselves internationally
wrongful. Nor does it affect the temporal element in the commission of the acts: a series of
acts or omissions may occur at the same time or sequentially, at different times.
(10) Paragraph 2 of article 15 deals with the extension in time of a composite act. Once a
sufficient number of actions or omissions has occurred, producing the result of the composite
act as such, the breach is dated to the first of the acts in the series. The status of the
first action or omission is equivocal until enough of the series has occurred to constitute
the wrongful act; but at that point the act should be regarded as having occurred over the
whole period from the commission of the first action or omission. If this were not so, the
effectiveness of the prohibition would thereby be undermined.
(11) The word “remain” in paragraph 2 is inserted to deal with the intertemporal principle
set out in article 13. In accordance with that principle, the State must be bound by
the international obligation for the period during which the series of acts making up the
breach is committed. In cases where the relevant obligation did not exist at the beginning
of the course of conduct but came into being thereafter, the “first” of the actions or
omissions of the series for the purposes of State responsibility will be the first occurring
after the obligation came into existence. This need not prevent a court taking into account
earlier actions or omissions for other purposes (e.g. in order to establish a factual basis for
the later breaches or to provide evidence of intent).
Article 15 215
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Additional Facility Rules)
Técnicas Medioambientales Tecmed S.A. v. United Mexican States
In its 2003 award, the arbitral tribunal constituted to hear the Técnicas Medioambientales
Tecmed S.A. v. United Mexican States case referred to a text taken from the commentary
to article 15 finally adopted by the International Law Commission. The relevant
passage is quoted [on page 203] above.
[A/62/62, para. 83]
European Court of Human Rights
Ilaşcu and others v. Moldova and Russia
In its 2004 judgement in the Ilaşcu and others v. Moldova and Russia case, the European
Court, sitting as a Grand Chamber, referred inter alia to the commentary to article 15,
paragraph 2 finally adopted by the International Law Commission in 2001. The relevant
passage is quoted [on page 204] above.
[A/62/62, para. 84]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Gemplus S.A. et al. v. The United Mexican States and Talsud S.A. v. The United Mexican States
The arbitral tribunal constituted to hear the Gemplus S.A. et al. v. The United Mexican
States and Talsud S.A. v. The United Mexican States cases relied upon article 15 and its accompanying
commentary to determine the relevant date for the assessment of compensation.[866] 116
[A/68/72, para. 83]
International arbitral tribunal (under UNCITRAL Rules)
Sergei Paushok et al. v. The Government of Mongolia
The arbitral tribunal in Sergei Paushok et al. v. The Government of Mongolia referred to the
commentary to articles 14 and 15 dealing with continuing and composite acts, and determined
that certain negotiations did not constitute continuing or composite acts or omissions.[867] 117
[A/68/72, para. 84]
[866] 116 ICSID, Case Nos. ARB (AF)/04/3 & ARB (AF)/04/4, Award, 16 June 2010, paras. 12–44, 12–45.
[867] 117 See footnote [299] 41 above, paras. 496–500.
216 Article 15
International arbitral tribunal (under the ICSID Convention)
El Paso Energy International Company v. The Argentine Republic
The arbitral tribunal in El Paso Energy International Company v. The Argentine
Republic referred to article 15 in finding that a series of measures taken by the Government
of Argentina amounted to a “composite act”.[868] 118
[A/68/72, para. 85]
[Pac Rim Cayman LLC v. The Republic of El Salvador
The arbitral tribunal constituted to hear the Pac Rim Cayman LLC v. The Republic of
El Salvador case considered the “well-established distinctions under customary international
law” recognized in the commentary to articles 14 and 15 between a “one-time act”,
a “continuous act” and a “composite act”.[869] 110 Upon consideration of the commentary to
articles 14 and 15, as well as the factual circumstances of the dispute,[870] 111 the tribunal
determined that the alleged measure “should be considered as a continuing act under
international law … ”.[871] 112
[See A/68/72, footnote 115 and para. 80]]
European Court of Human Rights
El-Masri v. The Former Yugoslav Republic of Macedonia
In its 2012 judgment in the case of El-Masri v. The Former Yugoslav Republic of Macedonia,
the European Court of Human Rights referred to articles 7, 14, 15 and 16 of the
State responsibility articles as relevant international law.[872] 119
[A/68/72, para. 86]
[Husayn (Abu Zubaydah) v. Poland
In Husayn (Abu Zubaydah) v. Poland, the European Court of Human Rights listed
articles 7, 14, 15 and 16 as relevant international law.[873] 85
[A/71/80, para. 68]]
Ad hoc committee (under the ICSID Convention)
El Paso Energy International Company v. The Argentine Republic
The ad hoc committee in El Paso Energy International Company v. The Argentine
Republic, noted that the arbitral tribunal, basing itself, inter alia, on article 15, had exposed
[868] 118 See footnote [56] 16 above, para. 516.
[869] [110 See footnote [840] 110, paras. 2.65–2.74.]
[870] [111 Ibid., paras. 2.65–2.93.]
[871] [112 Ibid., para. 2.94.]
[872] 119 See footnote [552] 84 above.
[873] [85 ECHR, Former Fourth Section, Application No. 7511/13, Judgment, 24 July 2014, para. 201.]
Article 15 217
the substance of the problem that led to its reasoning and decision, namely “that the cumulative
effect of a series of measures which might be inoffensive and legal one by one may
alter the global situation and the legal framework in a way that the investor could not have
legitimately expected”.[874] 123
[A/71/80, para. 90]
[European Court of Human Rights
Nasr et Ghali v. Italy
The European Court of Human Rights in Nasr et Ghali v. Italy referred to articles 7,
14, 15 and 16 of the State responsibility articles as relevant international law.[875] 82
[A/74/83, p. 17]]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Crystallex International Corporation v. Bolivarian Republic of Venezuela
The arbitral tribunal in Crystallex International Corporation v. Bolivarian Republic of Venezuela
explained that “State responsibility for creeping expropriation is reflected in the concept
of a composite act, defined in Article 15(1) of the ILC’s Articles on State Responsibility”.[876] 126
[A/74/83, p. 24]
Rusoro Mining Limited v. The Bolivarian Republic of Venezuela
In Rusoro Mining Limited v. The Bolivarian Republic of Venezuela, the arbitral tribunal
stated that “the general thrust of the ILC Articles regarding composite acts is clear, the
Articles do not address every single question, and in particular do not solve how time bar
affects a string of acts which gives rise to a composite breach of a treaty”.[877] 127 The tribunal
considered “the better approach for applying the time bar consists in breaking down each
alleged composite claim into individual breaches, each referring to a certain governmental
measure, and to apply the time bar to each of such breaches separately”.[878] 128
[A/74/83, p. 24]
International arbitral tribunal (under the ICSID Convention)
Blusun A.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic
The arbitral tribunal in Blusun A.A., Jean-Pierre Lecorcier and Michael Stein v. Italian
Republic stated that “Article 15 only applies to a breach ‘through a series of acts or omis-
[874] 123 ICSID, Case No. ARB/03/15 Decision of the Ad Hoc Committee on the Application for
Annulment of the Argentine Republic, 22 September 2014, para. 284.
[875] [82 ECHR, Fourth Section, Application 44883/09, Judgment, 23 February 2016, para. 185.]
[876] 126 ICSID (Additional Facility), Case No. ARB(AF)/11/2, Award, 4 April 2016, para. 669.
[877] 127 ICSID (Additional Facility), Case No. ARB(AF)/12/5, Award, 22 August 2016, para. 227.
[878] 128 Ibid., para. 231.
218 Article 15
sions defined in aggregate as wrongful’—for example, genocide. The first two sentences of
ECT Article 10(1) do not define an aggregate of acts as wrongful in the way that Article 1
of the Genocide Convention does”.[879] 129
[A/74/83, p. 24]
Burlington Resources Inc. v. Republic of Ecuador
In Burlington Resources Inc. v. Republic of Ecuador, the arbitral tribunal noted that
“[t]he cases relied upon by Burlington are inapposite since they deal with breaches consisting
of composite acts, as set out in Article 15 of the ILC Articles … In the present case, the
Tribunal excluded the hypothesis of creeping expropriation”.[880] 130
[A/74/83, p. 24]
Hydro S.r.l. et al. v. Republic of Albania
The arbitral tribunal in Hydro S.r.l. et al. v. Republic of Albania cited article 15, noting
that the principle of non-retroactivity “does not exclude the application of treaty obligations
where the series of acts result in an aggregate breach after the claimant acquires its
investment”.[881] 96 The tribunal noted that “a composite act ‘crystallizes’ or ‘takes place at a
time when the last of these acts occurs and violates (in aggregate) the applicable rule’”.[882] 97
[A/77/74, p. 19]
International arbitral tribunal (under Annex VII to the 1982 United Nations
Convention on the Law of the Sea)
Duzgit Integrity Arbitration (Republic of Malta v. Democratic Republic of Sao Tome and
Principe)
The arbitral tribunal in the Duzgit Integrity Arbitration (Republic of Malta v. Democratic
Republic of Sao Tome and Principe) recalled that, under article 15, paragraph 2, the
breach of an international obligation by way of a composite act “extends over the entire
period starting with the first of the actions or omissions of the series and lasts for as long as
these actions or omissions are repeated and remain not in conformity with the international
obligation”. Analysing the facts, the tribunal concluded that a series of actions by Sao Tome
and Principe, beginning with certain administrative proceedings and extending until the
release of the vessel, were incompatible with the United Nations Convention on the Law of
the Sea and therefore internationally wrongful for the entire period concerned.[883] 98
[A/77/74, p. 19]
[879] 129 ICSID, Case No. ARB/14/3, Award, 27 December 2016, para. 361.
[880] 130 ICSID, Case No. ARB/08/5, Decision on Reconsideration and Award, 7 February 2017, para. 452.
[881] 96 ICSID, Case No. ARB/15/28, Award, 24 April 2019, paras. 557–558.
[882] 97 Ibid., para. 558, citing Pac Rim Cayman LLC v. Republic of El Salvador, ICSID, Case No. ARB/09/12,
Decision on the Respondent’s Jurisdictional Objections, 1 June 2012, para. 2.74.
[883] 98 PCA, Case No. 2014–07, Award on Reparation, 18 December 2019, para. 86.
Article 15 219
International arbitral tribunal (under the ICSID Convention)
Global Telecom Holding S.A.E. v. Canada
In Global Telecom Holding S.A.E. v. Canada, the arbitral tribunal referred to article 15
and the commentary thereto, noting that, particularly in the case of a composite act, “[i]t is
only when the last of the actions or omissions necessary to constitute the wrongful act
occurs (which, as the ILC noted, is not necessarily the last act in the series), that the investor
can acquire knowledge of the loss caused by that wrongful act”.[884] 99
[A/77/74, p. 19]
Carlos Ríos and Francisco Ríos v. Republic of Chile
In Carlos Ríos and Francisco Ríos v. Republic of Chile, the arbitral tribunal referred to
article 15 and the commentary thereto, noting that
a composite wrongful act is one that results from a series of actions or omissions of the State which,
when considered in aggregate, are enough to constitute a breach an international obligation, regardless
of whether each individual action or omission of the series might also be considered to constitute
a wrongful act in respect of a different obligation.[885] 100
The tribunal went on:
In the case of composite wrongful acts, there is a State action which, considered together with the
acts that precede it, crosses the threshold to constitute the breach of an obligation. It is this action
that determines the moment at which an affected subject is able to become aware of the breach and
the damage resulting from it. The fact that other later actions and omissions may aggravate the
composite wrongful act whose threshold has already been crossed is irrelevant for the purposes of
identifying a violation and the resulting damage.[886] 101
[A/77/74, p. 19]
Infinito Gold Ltd. v. Republic of Costa Rica
The arbitral tribunal in Infinito Gold Ltd. v. Republic of Costa Rica noted that the commentary
to article 15 “makes it clear that, to amount to a composite breach, the various acts
must not separately amount to the same breach as the composite act (although they could
separately amount to different breaches). It also clarifies that the breach cannot ‘occur’ with
the first of the acts in the series”.[887] 102
[A/77/74, p. 20]
[884] 99 ICSID, Case No. ARB/16/16, Award, 27 March 2020, para. 411.
[885] 100 See footnote [386] 36 above, para. 189.
[886] 101 Ibid., para. 190.
[887] 102 See footnote [857] 92 above, para. 230.
220 Article 15
Permanent Court of Arbitration (under UNCITRAL Rules)
OOO Manolium Processing v. Republic of Belarus
The arbitral tribunal in OOO Manolium Processing v. Republic of Belarus noted that
while “Art. 15.1 defines the moment when a composite breach is deemed to occur and
Art. 15.2 the date and extension in time of the breach”,[888] 103 those provisions “do not solve
the issue of how the entry into force of a treaty affects the string of acts, where some acts
have occurred before and others after the entry into force of that treaty”.[889] 104 The tribunal
found that “[t]he appropriate solution is to break down the composite claim into individual
claims related to measures prior to the Effective Date and claims related to measures after
the Effective Date—the Tribunal only having jurisdiction to adjudicate those claims arising
out of measures which occurred after the Effective Date”.[890] 105
[A/77/74, p. 20]
[Ad hoc committee (under the ICSID Convention)
Víctor Pey Casado and Foundation President Allende v. Republic of Chile
The ad hoc committee in the annulment proceeding Víctor Pey Casado and Foundation
President Allende v. Republic of Chile rejected an argument that the nature of the violation
as a single act or continuous conduct could affect the analysis pertaining to adequate
compensation. Instead, it noted that
[i]t does not make any difference whether a wrongful act is a single act or ‘a course of conduct’,
as explicitly provided for in Articles 14 and 15 of the Articles on State Responsibility. A course of
conduct cannot remove the wrongfulness of one or many acts, and it cannot remove the obligation
of the wrongdoer to make full reparation for injury, as provided for in Article 31 of the Articles on
State Responsibility.[891] 132
[A/77/74, p. 25]]
[888] 103 See footnote [799] 86 above, para. 277.
[889] 104 Ibid., para. 280.
[890] 105 Ibid., para. 281.
[891] [132 See footnote [860] 132 above, para. 681.]
221
Chapter IV
RESPONSIBILITY OF A STATE IN CONNECTION WITH
THE ACT OF ANOTHER STATE
Commentary
(1) In accordance with the basic principles laid down in chapter I, each State is responsible
for its own internationally wrongful conduct, i.e. for conduct attributable to it under
chapter II which is in breach of an international obligation of that State in accordance with
chapter III.[892] 261 The principle that State responsibility is specific to the State concerned
underlies the present articles as a whole. It will be referred to as the principle of independent
responsibility. It is appropriate since each State has its own range of international obligations
and its own correlative responsibilities.
(2) However, internationally wrongful conduct often results from the collaboration of
several States rather than of one State acting alone.[893] 262 This may involve independent
conduct by several States, each playing its own role in carrying out an internationally
wrongful act. Or it may be that a number of States act through a common organ to commit
a wrongful act.[894] 263 Internationally wrongful conduct can also arise out of situations
where a State acts on behalf of another State in carrying out the conduct in question.
(3) Various forms of collaborative conduct can coexist in the same case. For example, three
States, Australia, New Zealand and the United Kingdom, together constituted the Administering
Authority for the Trust Territory of Nauru. In the Certain Phosphate Lands in Nauru
case, proceedings were commenced against Australia alone in respect of acts performed on
the “joint behalf” of the three States.[895] 264 The acts performed by Australia involved both
“joint” conduct of several States and day-to-day administration of a territory by one State
acting on behalf of other States as well as on its own behalf. By contrast, if the relevant organ
of the acting State is merely “placed at the disposal” of the requesting State, in the sense
provided for in article 6, only the requesting State is responsible for the act in question.
(4) In certain circumstances the wrongfulness of a State’s conduct may depend on the independent
action of another State. A State may engage in conduct in a situation where another
State is involved and the conduct of the other State may be relevant or even decisive in assess-
[892] 261 See, in particular, article 2 and commentary.
[893] 262 See M. L. Padelletti, Pluralità di Stati nel Fatto Illecito Internazionale (Milan, Giuffrè, 1990);
Brownlie, System of the Law of Nations … (footnote [195] 92 above), pp. 189–192; J. Quigley, “Complicity
in international law: a new direction in the law of State responsibility”, BYBIL, 1986, vol. 57, p. 77; J. E.
Noyes and B. D. Smith, “State responsibility and the principle of joint and several liability”, Yale Journal
of International Law, vol. 13 (1988), p. 225; and B. Graefrath, “Complicity in the law of international
responsibility”, Revue belge de droit international, vol. 29 (1996), p. 370.
[894] 263 In some cases, the act in question may be committed by the organs of an international
organization. This raises issues of the international responsibility of international organizations which
fall outside the scope of the present articles. See article 57 and commentary.
[895] 264 Certain Phosphate Lands in Nauru, Preliminary Objections (footnote [777] 230 above),
p. 258, para. 47; see also the separate opinion of Judge Shahabuddeen, ibid., p. 284.
222 Part One, Chapter IV
ing whether the first State has breached its own international obligations. For example, in the
Soering case the European Court of Human Rights held that the proposed extradition of a
person to a State not party to the European Convention on Human Rights where he was likely
to suffer inhuman or degrading treatment or punishment involved a breach of article 3 of the
Convention by the extraditing State.[896] 265 Alternatively, a State may be required by its own
international obligations to prevent certain conduct by another State, or at least to prevent the
harm that would flow from such conduct. Thus, the basis of responsibility in the Corfu Channel
case[897] 266 was Albania’s failure to warn the United Kingdom of the presence of mines in Albanian
waters which had been laid by a third State. Albania’s responsibility in the circumstances
was original and not derived from the wrongfulness of the conduct of any other State.
(5) In most cases of collaborative conduct by States, responsibility for the wrongful act
will be determined according to the principle of independent responsibility referred to in
paragraph (1) above. But there may be cases where conduct of the organ of one State, not
acting as an organ or agent of another State, is nonetheless chargeable to the latter State,
and this may be so even though the wrongfulness of the conduct lies, or at any rate primarily
lies, in a breach of the international obligations of the former. Chapter IV of Part
One defines these exceptional cases where it is appropriate that one State should assume
responsibility for the internationally wrongful act of another.
(6) Three situations are covered in chapter IV. Article 16 deals with cases where one State
provides aid or assistance to another State with a view to assisting in the commission of a
wrongful act by the latter. Article 17 deals with cases where one State is responsible for the
internationally wrongful act of another State because it has exercised powers of direction
and control over the commission of an internationally wrongful act by the latter. Article 18
deals with the extreme case where one State deliberately coerces another into committing an
act which is, or but for the coercion would be,[898] 267 an internationally wrongful act on the
part of the coerced State. In all three cases, the act in question is still committed, voluntarily
or otherwise, by organs or agents of the acting State, and is or, but for the coercion, would
be a breach of that State’s international obligations. The implication of the second State in
that breach arises from the special circumstance of its willing assistance in, its direction and
control over or its coercion of the acting State. But there are important differences between
the three cases. Under article 16, the State primarily responsible is the acting State and the
assisting State has a mere supporting role. Similarly under article 17, the acting State commits
the internationally wrongful act, albeit under the direction and control of another
State. By contrast, in the case of coercion under article 18, the coercing State is the prime
mover in respect of the conduct and the coerced State is merely its instrument.
(7) A feature of this chapter is that it specifies certain conduct as internationally wrongful.
This may seem to blur the distinction maintained in the articles between the primary
[896] 265 Soering v. The United Kingdom, Eur. Court H.R., Series A, No. 161, pp. 33–36, paras. 85–91
(1989). See also Cruz Varas and Others v. Sweden, ibid., No. 201, p. 28, paras. 69–70 (1991); and Vilvarajah
and Others v. The United Kingdom, ibid., No. 215, p. 37, paras. 115–116 (1991).
[897] 266 Corfu Channel, Merits (footnote [29] 35 above), p. 22.
[898] 267 If a State has been coerced, the wrongfulness of its act may be precluded by force majeure:
see article 23 and commentary.
Part One, Chapter IV 223
or substantive obligations of the State and its secondary obligations of responsibility.[899] 268
It is justified on the basis that responsibility under chapter IV is in a sense derivative.[900]269
In national legal systems, rules dealing, for example, with conspiracy, complicity and
inducing breach of contract may be classified as falling within the “general part” of the law
of obligations. Moreover, the idea of the implication of one State in the conduct of another
is analogous to problems of attribution, dealt with in chapter II.
(8) On the other hand, the situations covered in chapter IV have a special character. They
are exceptions to the principle of independent responsibility and they only cover certain
cases. In formulating these exceptional cases where one State is responsible for the internationally
wrongful acts of another, it is necessary to bear in mind certain features of the
international system. First, there is the possibility that the same conduct may be internationally
wrongful so far as one State is concerned but not for another State having regard
to its own international obligations. Rules of derived responsibility cannot be allowed to
undermine the principle, stated in article 34 of the 1969 Vienna Convention, that a “treaty
does not create either obligations or rights for a third State without its consent”; similar
issues arise with respect to unilateral obligations and even, in certain cases, rules of general
international law. Hence it is only in the extreme case of coercion that a State may become
responsible under this chapter for conduct which would not have been internationally
wrongful if performed by that State. Secondly, States engage in a wide variety of activities
through a multiplicity of organs and agencies. For example, a State providing financial
or other aid to another State should not be required to assume the risk that the latter will
divert the aid for purposes which may be internationally unlawful. Thus, it is necessary
to establish a close connection between the action of the assisting, directing or coercing
State on the one hand and that of the State committing the internationally wrongful act
on the other. Thus, the articles in this part require that the former State should be aware of
the circumstances of the internationally wrongful act in question, and establish a specific
causal link between that act and the conduct of the assisting, directing or coercing State.
This is done without prejudice to the general question of “wrongful intent” in matters of
State responsibility, on which the articles are neutral.[901] 270
(9) Similar considerations dictate the exclusion of certain situations of “derived responsibility”
from chapter IV. One of these is incitement. The incitement of wrongful conduct
is generally not regarded as sufficient to give rise to responsibility on the part of the
inciting State, if it is not accompanied by concrete support or does not involve direction
and control on the part of the inciting State.[902] 271 However, there can be specific treaty
[899] 268 See above, in the introduction to the articles, paras. (1)–(2) and (4) for an explanation of
the distinction.
[900] 269 Cf. the term responsabilité dérivée used by Arbitrator Huber in British Claims in the Spanish
Zone of Morocco (footnote [38] 44 above), p. 648.
[901] 270 See above, the commentary to paragraphs (3) and (10) of article 2.
[902] 271 See the statement of the United States-French Commissioners relating to the French Indemnity
of 1831 case in Moore, History and Digest, vol. V, p. 4447, at pp. 4473–4476. See also Military and
Paramilitary Activities in and against Nicaragua (footnote [30] 36 above), p. 129, para. 255, and the dissenting
opinion of Judge Schwebel, p. 389, para. 259.
224 Part One, Chapter IV
obligations prohibiting incitement under certain circumstances.[903] 272 Another concerns
the issue which is described in some systems of internal law as being an “accessory
after the fact”. It seems that there is no general obligation on the part of third States to
cooperate in suppressing internationally wrongful conduct of another State which may
already have occurred. Again it is a matter for specific treaty obligations to establish
any such obligation of suppression after the event. There are, however, two important
qualifications here. First, in some circumstances assistance given by one State to another
after the latter has committed an internationally wrongful act may amount to the adoption
of that act by the former State. In such cases responsibility for that act potentially
arises pursuant to article 11. Secondly, special obligations of cooperation in putting an
end to an unlawful situation arise in the case of serious breaches of obligations under
peremptory norms of general international law. By definition, in such cases States will
have agreed that no derogation from such obligations is to be permitted and, faced with
a serious breach of such an obligation, certain obligations of cooperation arise. These are
dealt with in article 41.
[903] 272 See, e.g., article III (c) of the Convention on the Prevention and Punishment of the Crime
of Genocide; and article 4 of the International Convention on the Elimination of All Forms of Racial
Discrimination.
225
Article 16. Aid or assistance in the commission of an internationally wrongful act
A State which aids or assists another State in the commission of an internationally
wrongful act by the latter is internationally responsible for doing so if:
(a) that State does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) the act would be internationally wrongful if committed by that State.
Commentary
(1) Article 16 deals with the situation where one State provides aid or assistance to another
with a view to facilitating the commission of an internationally wrongful act by the latter.
Such situations arise where a State voluntarily assists or aids another State in carrying out
conduct which violates the international obligations of the latter, for example, by knowingly
providing an essential facility or financing the activity in question. Other examples include
providing means for the closing of an international waterway, facilitating the abduction of
persons on foreign soil, or assisting in the destruction of property belonging to nationals
of a third country. The State primarily responsible in each case is the acting State, and the
assisting State has only a supporting role. Hence the use of the term “by the latter” in the
chapeau to article 16, which distinguishes the situation of aid or assistance from that of coperpetrators
or co-participants in an internationally wrongful act. Under article 16, aid or
assistance by the assisting State is not to be confused with the responsibility of the acting
State. In such a case, the assisting State will only be responsible to the extent that its own
conduct has caused or contributed to the internationally wrongful act. Thus, in cases where
that internationally wrongful act would clearly have occurred in any event, the responsibility
of the assisting State will not extend to compensating for the act itself.
(2) Various specific substantive rules exist, prohibiting one State from providing assistance
in the commission of certain wrongful acts by other States or even requiring third
States to prevent or repress such acts.[904] 273 Such provisions do not rely on any general
principle of derived responsibility, nor do they deny the existence of such a principle, and
it would be wrong to infer from them the non-existence of any general rule. As to treaty
provisions such as Article 2, paragraph 5, of the Charter of the United Nations, again these
have a specific rationale which goes well beyond the scope and purpose of article 16.
(3) Article 16 limits the scope of responsibility for aid or assistance in three ways. First,
the relevant State organ or agency providing aid or assistance must be aware of the circumstances
making the conduct of the assisted State internationally wrongful; secondly, the
aid or assistance must be given with a view to facilitating the commission of that act, and
must actually do so; and thirdly, the completed act must be such that it would have been
wrongful had it been committed by the assisting State itself.
(4) The requirement that the assisting State be aware of the circumstances making the
conduct of the assisted State internationally wrongful is reflected by the phrase “knowledge
of the circumstances of the internationally wrongful act”. A State providing material
[904] 273 See, e.g., the first principle of the Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations
(General Assembly resolution 2625 (XXV) of 24 October 1970, annex); and article 3 (f) of the Definition
of Aggression (General Assembly resolution 3314 (XXIX) of 14 December 1974, annex).
226 Article 16
or financial assistance or aid to another State does not normally assume the risk that its
assistance or aid may be used to carry out an internationally wrongful act. If the assisting
or aiding State is unaware of the circumstances in which its aid or assistance is intended
to be used by the other State, it bears no international responsibility.
(5) The second requirement is that the aid or assistance must be given with a view to
facilitating the commission of the wrongful act, and must actually do so. This limits the
application of article 16 to those cases where the aid or assistance given is clearly linked
to the subsequent wrongful conduct. A State is not responsible for aid or assistance under
article 16 unless the relevant State organ intended, by the aid or assistance given, to facilitate
the occurrence of the wrongful conduct and the internationally wrongful conduct is
actually committed by the aided or assisted State. There is no requirement that the aid or
assistance should have been essential to the performance of the internationally wrongful
act; it is sufficient if it contributed significantly to that act.
(6) The third condition limits article 16 to aid or assistance in the breach of obligations
by which the aiding or assisting State is itself bound. An aiding or assisting State may not
deliberately procure the breach by another State of an obligation by which both States are
bound; a State cannot do by another what it cannot do by itself. On the other hand, a State
is not bound by obligations of another State vis-à-vis third States. This basic principle is also
embodied in articles 34 and 35 of the 1969 Vienna Convention. Correspondingly, a State is
free to act for itself in a way which is inconsistent with the obligations of another State vis-àvis
third States. Any question of responsibility in such cases will be a matter for the State to
whom assistance is provided vis-à-vis the injured State. Thus, it is a necessary requirement
for the responsibility of an assisting State that the conduct in question, if attributable to the
assisting State, would have constituted a breach of its own international obligations.
(7) State practice supports assigning international responsibility to a State which deliberately
participates in the internationally wrongful conduct of another through the provision
of aid or assistance, in circumstances where the obligation breached is equally opposable
to the assisting State. For example, in 1984 the Islamic Republic of Iran protested against
the supply of financial and military aid to Iraq by the United Kingdom, which allegedly
included chemical weapons used in attacks against Iranian troops, on the ground that the
assistance was facilitating acts of aggression by Iraq.[905] 274 The Government of the United
Kingdom denied both the allegation that it had chemical weapons and that it had supplied
them to Iraq.[906] 275 In 1998, a similar allegation surfaced that the Sudan had assisted Iraq
to manufacture chemical weapons by allowing Sudanese installations to be used by Iraqi
technicians for steps in the production of nerve gas. The allegation was denied by Iraq’s
representative to the United Nations.[907] 276
(8) The obligation not to use force may also be breached by an assisting State through
permitting the use of its territory by another State to carry out an armed attack against a
third State. An example is provided by a statement made by the Government of the Federal
Republic of Germany in response to an allegation that Germany had participated in
an armed attack by allowing United States military aircraft to use airfields in its territory
[905] 274 The New York Times, 6 March 1984, p. A1.
[906] 275 Ibid., 5 March 1984, p. A3.
[907] 276 Ibid., 26 August 1998, p. A8.
Article 16 227
in connection with the United States intervention in Lebanon. While denying that the
measures taken by the United States and the United Kingdom in the Near East constituted
intervention, the Federal Republic of Germany nevertheless seems to have accepted that
the act of a State in placing its own territory at the disposal of another State in order to
facilitate the commission of an unlawful use of force by that other State was itself an internationally
wrongful act.[908] 277 Another example arises from the Tripoli bombing incident
in April 1986. The Libyan Arab Jamahiriya charged the United Kingdom with responsibility
for the event, based on the fact that the United Kingdom had allowed several of its
air bases to be used for the launching of United States fighter planes to attack Libyan targets.[
909] 278 The Libyan Arab Jamahiriya asserted that the United Kingdom “would be held
partly responsible” for having “supported and contributed in a direct way” to the raid.[910]279
The United Kingdom denied responsibility on the basis that the raid by the United States
was lawful as an act of self-defence against Libyan terrorist attacks on United States targets.[
911] 280 A proposed Security Council resolution concerning the attack was vetoed, but
the General Assembly issued a resolution condemning the “military attack” as “a violation
of the Charter of the United Nations and of international law”, and calling upon all States
“to refrain from extending any assistance or facilities for perpetrating acts of aggression
against the Libyan Arab Jamahiriya”.[912] 281
(9) The obligation not to provide aid or assistance to facilitate the commission of an internationally
wrongful act by another State is not limited to the prohibition on the use of
force. For instance, a State may incur responsibility if it assists another State to circumvent
sanctions imposed by the Security Council[913] 282 or provides material aid to a State that
uses the aid to commit human rights violations. In this respect, the General Assembly
has called on Member States in a number of cases to refrain from supplying arms and
other military assistance to countries found to be committing serious human rights violations.[
914] 283 Where the allegation is that the assistance of a State has facilitated human
rights abuses by another State, the particular circumstances of each case must be carefully
examined to determine whether the aiding State by its aid was aware of and intended to
facilitate the commission of the internationally wrongful conduct.
(10) In accordance with article 16, the assisting State is responsible for its own act in deliberately
assisting another State to breach an international obligation by which they are both
bound. It is not responsible, as such, for the act of the assisted State. In some cases this
may be a distinction without a difference: where the assistance is a necessary element in
the wrongful act in absence of which it could not have occurred, the injury suffered can be
[908] 277 For the text of the note from the Federal Government, see Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht, vol. 20 (August 1960), pp. 663–664.
[909] 278 See United States of America, Department of State Bulletin, No. 2111 (June 1986), p. 8.
[910] 279 See the statement of Ambassador Hamed Houdeiry, Libyan People’s Bureau, Paris, The
Times, 16 April 1986, p. 6.
[911] 280 Statement of Mrs. Margaret Thatcher, Prime Minister, House of Commons Debates, 6th
series, vol. 95, col. 737 (15 April 1986), reprinted in BYBIL, 1986, vol. 57, pp. 637–638.
[912] 281 General Assembly resolution 41/38 of 20 November 1986, paras. 1 and 3.
[913] 282 See, e.g., Report by President Clinton, AJIL, vol. 91, No. 4 (October 1997), p. 709.
[914] 283 Report of the Economic and Social Council, Report of the Third Committee of the General
Assembly, draft resolution XVII (A/37/745), p. 50.
228 Article 16
concurrently attributed to the assisting and the acting State.[915] 284 In other cases, however,
the difference may be very material: the assistance may have been only an incidental factor
in the commission of the primary act, and may have contributed only to a minor degree,
if at all, to the injury suffered. By assisting another State to commit an internationally
wrongful act, a State should not necessarily be held to indemnify the victim for all the
consequences of the act, but only for those which, in accordance with the principles stated
in Part Two of the articles, flow from its own conduct.
(11) Article 16 does not address the question of the admissibility of judicial proceedings to
establish the responsibility of the aiding or assisting State in the absence of or without the
consent of the aided or assisted State. ICJ has repeatedly affirmed that it cannot decide on
the international responsibility of a State if, in order to do so, “it would have to rule, as a prerequisite,
on the lawfulness”[916] 285 of the conduct of another State, in the latter’s absence and
without its consent. This is the so-called Monetary Gold principle.[917] 286 That principle may
well apply to cases under article 16, since it is of the essence of the responsibility of the aiding
or assisting State that the aided or assisted State itself committed an internationally wrongful
act. The wrongfulness of the aid or assistance given by the former is dependent, inter alia, on
the wrongfulness of the conduct of the latter. This may present practical difficulties in some
cases in establishing the responsibility of the aiding or assisting State, but it does not vitiate
the purpose of article 16. The Monetary Gold principle is concerned with the admissibility
of claims in international judicial proceedings, not with questions of responsibility as such.
Moreover, that principle is not all-embracing, and the Monetary Gold principle may not be
a barrier to judicial proceedings in every case. In any event, wrongful assistance given to
another State has frequently led to diplomatic protests. States are entitled to assert complicity
in the wrongful conduct of another State even though no international court may have
jurisdiction to rule on the charge, at all or in the absence of the other State.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
World Trade Organization panel
Turkey—Restrictions on Imports of Textile and Clothing Products
In its 1999 report on Turkey—Restrictions on Imports of Textile and Clothing Products,
the panel, in examining the Turkish argument according to which the measures at
issue had been taken by a separate entity (i.e. the Turkey-European Communities customs
union or the European Communities), concluded that the said measures were attributable
to Turkey, since they had been adopted by the Turkish Government or had at least been
implemented, applied and monitored by Turkey. In this regard, the panel found that, in
any event, “in public international law, in the absence of any contrary treaty provision,
Turkey could reasonably be held responsible for the measures taken by the Turkey-EC cus-
[915] 284 For the question of concurrent responsibility of several States for the same injury, see article
47 and commentary.
[916] 285 East Timor (footnote [48] 54 above), p. 105, para. 35.
[917] 286 Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, p. 19, at p. 32;
Certain Phosphate Lands in Nauru, Preliminary Objections (footnote [777] 230 above), p. 261, para. 55.
Article 16 229
toms union”,[918] 134 on the basis of the principle reflected in draft article 27 adopted on first
reading by the International Law Commission.[919] 135 In the report, the panel reproduced a
passage of the commentary of the Commission to that provision.[920] 136
[A/62/62, para. 85]
International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro)
In its 2007 judgment in the Genocide case, the Court, in examining whether the
Respondent was responsible for “complicity in genocide” under article III, paragraph (e),
of the Genocide Convention, referred to article 16 finally adopted by the International Law
Commission in 2001, which it considered as reflecting a customary rule:
In this connection, reference should be made to Article 16 of the ILC’s Articles on State Responsibility,
reflecting a customary rule …
Although this provision, because it concerns a situation characterized by a relationship between two
States, is not directly relevant to the present case, it nevertheless merits consideration. The Court sees
no reason to make any distinction of substance between ‘complicity in genocide’, within the meaning
of Article III, paragraph (e), of the Convention, and the ‘aid or assistance’ of a State in the commission
of a wrongful act by another State within the meaning of the aforementioned Article 16—setting aside
the hypothesis of the issue of instructions or directions or the exercise of effective control, the effects of
which, in the law of international responsibility, extend beyond complicity. In other words, to ascertain
whether the Respondent is responsible for ‘complicity in genocide’ within the meaning of Article III,
paragraph (e), which is what the Court now has to do, it must examine whether organs of the respondent
State, or persons acting on its instructions or under its direction or effective control, furnished ‘aid
or assistance’ in the commission of the genocide in Srebrenica, in a sense not significantly different
from that of those concepts in the general law of international responsibility.”[921] 9
[A/62/62/Add.1, para. 5]
[918] 134 WTO, Panel Report, Turkey—Restrictions on Imports of Textile and Clothing Products, WT/
DS34/R, 31 May 1999, para. 9.42.
[919] 135 This provision was amended and incorporated in article 16 finally adopted by the International
Law Commission in 2001. The text of draft article 27 was the following:
Article 27
Aid or assistance by a State to another State for the commission of
an internationally wrongful act
Aid or assistance by a State to another State, if it is established that it is rendered for the
commission of an internationally wrongful act carried out by the latter, itself constitutes an
internationally wrongful act, even if, taken alone, such aid or assistance would not constitute
the breach of an international obligation. (Yearbook … 1996, vol. II (Part Two), para. 65.)
[920] 136 WTO, Panel Report, WT/DS34/R, 31 May 1999, para. 9.43, where the panel quoted a passage
taken from paragraph (2) of the commentary to draft article 27 provisionally adopted (Yearbook …
1996, vol. II (Part Two), p. 99).
[921] 9 [ICJ, Judgment, I.C.J. Reports 2007, p. 43], para. 420.
230 Article 16
European Court of Human Rights
El-Masri v. The Former Yugoslav Republic of Macedonia
In its 2012 judgment in the case of El-Masri v. The Former Yugoslav Republic of Macedonia,
the European Court of Human Rights referred to articles 7, 14, 15 and 16 of the
State responsibility articles as relevant international law.[922] 120
[A/68/72, para. 87]
[Husayn (Abu Zubaydah) v. Poland
In Husayn (Abu Zubaydah) v. Poland, the European Court of Human Rights listed
articles 7, 14, 15 and 16 as relevant international law.[923] 85
[A/71/80, para. 68]]
Al Nashiri v. Poland
In Al Nashiri v. Poland, the European Court of Human Rights referred to articles 7,
14, 15 and 16 as relevant international law.[924] 125
[A/71/80, para. 91]
[Big Brother Watch and others v. the United Kingdom
In Big Brother Watch and others v. the United Kingdom, the European Court of
Human Rights noted that the State responsibility articles
would only be relevant if the foreign intelligence agencies were placed at the disposal of the respondent
State and were acting in exercise of elements of the governmental authority of the respondent
State (Article 6); if the respondent State aided or assisted the foreign intelligence agencies in intercepting
the communications where that amounted to an internationally wrongful act for the State
responsible for the agencies, the United Kingdom was aware of the circumstances of the internationally
wrongful act, and the act would have been internationally wrongful if committed by the United
Kingdom (Article 16); or if the respondent State exercised direction or control over the foreign
Government (Article 17).[925] 80
[A/74/83, p. 17]]
[Nasr et Ghali v. Italy
The European Court of Human Rights in Nasr et Ghali v. Italy referred to articles 7,
14, 15 and 16 of the State responsibility articles as relevant international law.[926] 82
[A/74/83, p. 17]]
[922] 120 See footnote [552] 84 above.
[923] [85 ECHR, Former Fourth Section, Application No. 7511/13, Judgment, 24 July 2014, para. 201.]
[924] 125 ECHR, Former Fourth Section, Application No. 28761/11, Judgment, 24 July 2014, para. 207.
[925] [80 ECHR, First Section, Applications Nos. 58170/13, 62322/14 and 24960/15, Judgment,
13 September 2018, para. 420.]
[926] [82 ECHR, Fourth Section, Application 44883/09, Judgment, 23 February 2016, para. 185.]
Article 16 231
Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to article 16 under “principal legal and other texts”,[927] 132 and
noted that “[a]s the International Court of Justice decided in the Bosnia Genocide Case
(2007), Article 16 of the State responsibility articles reflects a rule of customary international
law”.[928] 133
[A/74/83, p. 25]
European Court of Human Rights
Big Brother Watch and others v. United Kingdom
In Big Brother Watch and others v. United Kingdom, the Grand Chamber of the European
Court of Human Rights stated that article 16 would be relevant in a case of interception
of communications by foreign intelligence services
if the receiving State aided or assisted the foreign intelligence services in intercepting the communications
where that amounted to an internationally wrongful act for the State responsible for the
services, the receiving State was aware of the circumstances of the internationally wrongful act, and
the act would have been internationally wrongful if committed by the receiving State.[929] 106
[A/77/74, p. 20]
[927] 132 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, para. 3.33.
[928] 133 Ibid., para. 9.10.
[929] 106 See footnote [517] 63 above, para. 495.
232
Article 17. Direction and control exercised over the commission
of an internationally wrongful act
A State which directs and controls another State in the commission of an internationally
wrongful act by the latter is internationally responsible for that act if:
(a) that State does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) the act would be internationally wrongful if committed by that State.
Commentary
(1) Article 17 deals with a second case of derived responsibility, the exercise of direction
and control by one State over the commission of an internationally wrongful act by
another. Under article 16 a State providing aid or assistance with a view to the commission
of an internationally wrongful act incurs international responsibility only to the extent
of the aid or assistance given. By contrast, a State which directs and controls another in
the commission of an internationally wrongful act is responsible for the act itself, since it
controlled and directed the act in its entirety.
(2) Some examples of international responsibility flowing from the exercise of direction
and control over the commission of a wrongful act by another State are now largely of
historical significance. International dependency relationships such as “suzerainty” or
“protectorate” warranted treating the dominant State as internationally responsible for
conduct formally attributable to the dependent State. For example, in Rights of Nationals
of the United States of America in Morocco,[930] 287 France commenced proceedings under
the Optional Clause in respect of a dispute concerning the rights of United States nationals
in Morocco under French protectorate. The United States objected that any eventual
judgment might not be considered as binding upon Morocco, which was not a party to the
proceedings. France confirmed that it was acting both in its own name and as the protecting
power over Morocco, with the result that the Court’s judgment would be binding both
on France and on Morocco,[931] 288 and the case proceeded on that basis.[932] 289 The Court’s
judgment concerned questions of the responsibility of France in respect of the conduct of
Morocco which were raised both by the application and by the United States counterclaim.
(3) With the developments in international relations since 1945, and in particular the
process of decolonization, older dependency relationships have been terminated. Such
links do not involve any legal right to direction or control on the part of the representing
State. In cases of representation, the represented entity remains responsible for its own
international obligations, even though diplomatic communications may be channelled
through another State. The representing State in such cases does not, merely because it
is the channel through which communications pass, assume any responsibility for their
content. This is not in contradiction to the British Claims in the Spanish Zone of Morocco
arbitration, which affirmed that “the responsibility of the protecting State … proceeds
… from the fact that the protecting State alone represents the protected territory in its
[930] 287 Rights of Nationals of the United States of America in Morocco (footnote [225] 108 above), p. 176.
[931] 288 Ibid., I.C.J. Pleadings, vol. I, p. 235; and vol. II, pp. 431–433; the United States thereupon
withdrew its preliminary objection: ibid., p. 434.
[932] 289 See Rights of Nationals of the United States of America in Morocco (footnote [225] 108 above), p. 179.
Article 17 233
international relations”,[933] 290 and that the protecting State is answerable “in place of the
protected State”.[934] 291 The principal concern in the arbitration was to ensure that, in the
case of a protectorate which put an end to direct international relations by the protected
State, international responsibility for wrongful acts committed by the protected State was
not erased to the detriment of third States injured by the wrongful conduct. The acceptance
by the protecting State of the obligation to answer in place of the protected State was
viewed as an appropriate means of avoiding that danger.[935] 292 The justification for such an
acceptance was not based on the relationship of “representation” as such but on the fact
that the protecting State was in virtually total control over the protected State. It was not
merely acting as a channel of communication.
(4) Other relationships of dependency, such as dependent territories, fall entirely outside
the scope of article 17, which is concerned only with the responsibility of one State for the
conduct of another State. In most relationships of dependency between one territory and
another, the dependent territory, even if it may possess some international personality, is
not a State. Even in cases where a component unit of a federal State enters into treaties or
other international legal relations in its own right, and not by delegation from the federal
State, the component unit is not itself a State in international law. So far as State responsibility
is concerned, the position of federal States is no different from that of any other State:
the normal principles specified in articles 4 to 9 of the draft articles apply, and the federal
State is internationally responsible for the conduct of its component units even though that
conduct falls within their own local control under the federal constitution.[936] 293
(5) Nonetheless, instances exist or can be envisaged where one State exercises the power
to direct and control the activities of another State, whether by treaty or as a result of a
military occupation or for some other reason. For example, during the belligerent occupation
of Italy by Germany in the Second World War, it was generally acknowledged that the
Italian police in Rome operated under the control of the occupying Power. Thus, the protest
by the Holy See in respect of wrongful acts committed by Italian police who forcibly
entered the Basilica of St. Paul in Rome in February 1944 asserted the responsibility of the
German authorities.[937] 294 In such cases the occupying State is responsible for acts of the
occupied State which it directs and controls.
(6) Article 17 is limited to cases where a dominant State actually directs and controls
conduct which is a breach of an international obligation of the dependent State. International
tribunals have consistently refused to infer responsibility on the part of a dominant
State merely because the latter may have the power to interfere in matters of administration
internal to a dependent State, if that power is not exercised in the particular case. In
the Brown case, for example, the arbitral tribunal held that the authority of Great Britain,
as suzerain over the South African Republic prior to the Boer War, “fell far short of what
[933] 290 British Claims in the Spanish Zone of Morocco (footnote [38] 44 above), p. 649.
[934] 291 Ibid., p. 648.
[935] 292 Ibid.
[936] 293 See, e.g., LaGrand, Provisional Measures (footnote [150] 91 above).
[937] 294 See R. Ago, “L’occupazione bellica di Roma e il Trattato lateranense”, Comunicazioni e Studi
(Milan, Giuffrè, 1945), vol. II, pp. 167–168.
234 Article 17
would be required to make her responsible for the wrong inflicted upon Brown.”[938] 295
It went on to deny that Great Britain possessed power to interfere in matters of internal
administration and continued that there was no evidence “that Great Britain ever did
undertake to interfere in this way”.[939] 296 Accordingly, the relation of suzerainty “did not
operate to render Great Britain liable for the acts complained of”. [940] 297 In the Heirs of
the Duc de Guise case, the Franco-Italian Conciliation Commission held that Italy was
responsible for a requisition carried out by Italy in Sicily at a time when it was under Allied
occupation. Its decision was not based on the absence of Allied power to requisition the
property, or to stop Italy from doing so. Rather, the majority pointed to the absence in
fact of any “intermeddling on the part of the Commander of the Occupation forces or any
Allied authority calling for the requisition decrees”. [941] 298 The mere fact that a State may
have power to exercise direction and control over another State in some field is not a sufficient
basis for attributing to it any wrongful acts of the latter State in that field.[942] 299
(7) In the formulation of article 17, the term “controls” refers to cases of domination over
the commission of wrongful conduct and not simply the exercise of oversight, still less
mere influence or concern. Similarly, the word “directs” does not encompass mere incitement
or suggestion but rather connotes actual direction of an operative kind. Both direction
and control must be exercised over the wrongful conduct in order for a dominant State
to incur responsibility. The choice of the expression, common in English, “direction and
control”, raised some problems in other languages, owing in particular to the ambiguity
of the term “direction” which may imply, as is the case in French, complete power, whereas
it does not have this implication in English.
(8) Two further conditions attach to responsibility under article 17. First, the dominant
State is only responsible if it has knowledge of the circumstances making the conduct of
the dependent State wrongful. Secondly, it has to be shown that the completed act would
have been wrongful had it been committed by the directing and controlling State itself.
This condition is significant in the context of bilateral obligations, which are not opposable
to the directing State. In cases of multilateral obligations and especially of obligations to
the international community, it is of much less significance. The essential principle is that
a State should not be able to do through another what it could not do itself.
(9) As to the responsibility of the directed and controlled State, the mere fact that it was
directed to carry out an internationally wrongful act does not constitute an excuse under
chapter V of Part One. If the conduct in question would involve a breach of its international
obligations, it is incumbent upon it to decline to comply with the direction. The defence
[938] 295 Robert E. Brown (United States) v. Great Britain, UNRIAA, vol. VI (Sales No. 1955.V.3),
p. 120, at p. 130 (1923).
[939] 296 Ibid., p. 131.
[940] 297 Ibid.
[941] 298 Heirs of the Duc de Guise (footnote [232] 115 above). See also, in another context, Drozd
and Janousek v. France and Spain (footnote [507] 135 above); see also Iribarne Pérez v. France, Eur. Court
H.R., Series A, No. 325–C, pp. 62–63, paras. 29–31 (1995).
[942] 299 It may be that the fact of the dependence of one State upon another is relevant in terms of the
burden of proof, since the mere existence of a formal State apparatus does not exclude the possibility that
control was exercised in fact by an occupying Power. Cf. Restitution of Household Effects Belonging to Jews
Deported from Hungary (Germany), Kammergericht of Berlin, ILR, vol. 44, p. 301, at pp. 340–342 (1965).
Article 17 235
of “superior orders” does not exist for States in international law. This is not to say that the
wrongfulness of the directed and controlled State’s conduct may not be precluded under
chapter V, but this will only be so if it can show the existence of a circumstance precluding
wrongfulness, e.g. force majeure. In such a case it is to the directing State alone that the
injured State must look. But as between States, genuine cases of force majeure or coercion
are exceptional. Conversely, it is no excuse for the directing State to show that the directed
State was a willing or even enthusiastic participant in the internationally wrongful conduct,
if in truth the conditions laid down in article 17 are met.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
European Court of Human Rights
Big Brother Watch and others v. the United Kingdom
In Big Brother Watch and others v. the United Kingdom, the European Court of
Human Rights referred to article 17 of the State responsibility articles.[943] 134
[A/74/83, pp. 17–25]
In Big Brother Watch and others v. United Kingdom, the Grand Chamber of the European
Court of Human Rights stated that article 17 would be relevant in a case of interception
of communications by foreign intelligence services “if the receiving State exercised
direction or control over the foreign Government”.[944] 107
[A/77/74, p. 21]
[943] 134 See the text accompanying footnote [516] 80.
[944] [107 See footnote [517] 63 above, para. 495.]
236
Article 18. Coercion of another State
A State which coerces another State to commit an act is internationally responsible
for that act if:
(a) the act would, but for the coercion, be an internationally wrongful act of the
coerced State; and
(b) the coercing State does so with knowledge of the circumstances of the act.
Commentary
(1) The third case of derived responsibility dealt with by chapter IV is that of coercion of one
State by another. Article 18 is concerned with the specific problem of coercion deliberately
exercised in order to procure the breach of one State’s obligation to a third State. In such cases
the responsibility of the coercing State with respect to the third State derives not from its act
of coercion, but rather from the wrongful conduct resulting from the action of the coerced
State. Responsibility for the coercion itself is that of the coercing State vis-à-vis the coerced
State, whereas responsibility under article 18 is the responsibility of the coercing State vis-àvis
a victim of the coerced act, in particular a third State which is injured as a result.
(2) Coercion for the purpose of article 18 has the same essential character as force majeure
under article 23. Nothing less than conduct which forces the will of the coerced State will
suffice, giving it no effective choice but to comply with the wishes of the coercing State.
It is not sufficient that compliance with the obligation is made more difficult or onerous,
or that the acting State is assisted or directed in its conduct: such questions are covered
by the preceding articles. Moreover, the coercing State must coerce the very act which is
internationally wrongful. It is not enough that the consequences of the coerced act merely
make it more difficult for the coerced State to comply with the obligation.
(3) Though coercion for the purpose of article 18 is narrowly defined, it is not limited to
unlawful coercion.[945] 300 As a practical matter, most cases of coercion meeting the requirements
of the article will be unlawful, e.g. because they involve a threat or use of force contrary
to the Charter of the United Nations, or because they involve intervention, i.e. coercive
interference, in the affairs of another State. Such is also the case with countermeasures.
They may have a coercive character, but as is made clear in article 49, their function is to
induce a wrongdoing State to comply with obligations of cessation and reparation towards
the State taking the countermeasures, not to coerce that State to violate obligations to third
States.[946] 301 However, coercion could possibly take other forms, e.g. serious economic pressure,
provided that it is such as to deprive the coerced State of any possibility of conforming
with the obligation breached.
(4) The equation of coercion with force majeure means that in most cases where article 18 is
applicable, the responsibility of the coerced State will be precluded vis-à-vis the injured third
State. This is reflected in the phrase “but for the coercion” in subparagraph (a) of article 18.
Coercion amounting to force majeure may be the reason why the wrongfulness of an act is
precluded vis-à-vis the coerced State. Therefore, the act is not described as an internation-
[945] 300 P. Reuter, Introduction to the Law of Treaties, 2nd rev. ed. (London, Kegan Paul International,
1995), paras. 271–274.
[946] 301 See article 49, para. 2, and commentary.
Article 18 237
ally wrongful act in the opening clause of the article, as is done in articles 16 and 17, where
no comparable circumstance would preclude the wrongfulness of the act of the assisted or
controlled State. But there is no reason why the wrongfulness of that act should be precluded
vis-à-vis the coercing State. On the contrary, if the coercing State cannot be held responsible
for the act in question, the injured State may have no redress at all.
(5) It is a further requirement for responsibility under article 18 that the coercing State
must be aware of the circumstances which would, but for the coercion, have entailed the
wrongfulness of the coerced State’s conduct. The reference to “circumstances” in subparagraph
(b) is understood as reference to the factual situation rather than to the coercing
State’s judgement of the legality of the act. This point is clarified by the phrase “circumstances
of the act”. Hence, while ignorance of the law is no excuse, ignorance of the facts
is material in determining the responsibility of the coercing State.
(6) A State which sets out to procure by coercion a breach of another State’s obligations
to a third State will be held responsible to the third State for the consequences, regardless
of whether the coercing State is also bound by the obligation in question. Otherwise, the
injured State would potentially be deprived of any redress, because the acting State may be
able to rely on force majeure as a circumstance precluding wrongfulness. Article 18 thus
differs from articles 16 and 17 in that it does not allow for an exemption from responsibility
for the act of the coerced State in circumstances where the coercing State is not itself bound
by the obligation in question.
(7) State practice lends support to the principle that a State bears responsibility for the
internationally wrongful conduct of another State which it coerces. In the Romano-Americana
case, the claim of the United States Government in respect of the destruction of
certain oil storage and other facilities owned by a United States company on the orders
of the Government of Romania during the First World War was originally addressed to
the British Government. At the time the facilities were destroyed, Romania was at war
with Germany, which was preparing to invade the country, and the United States claimed
that the Romanian authorities had been “compelled” by Great Britain to take the measures
in question. In support of its claim, the United States Government argued that the
circumstances of the case revealed “a situation where a strong belligerent for a purpose
primarily its own arising from its defensive requirements at sea, compelled a weaker Ally
to acquiesce in an operation which it carried out on the territory of that Ally.”[947] 302 The
British Government denied responsibility, asserting that its influence over the conduct
of the Romanian authorities “did not in any way go beyond the limits of persuasion and
good counsel as between governments associated in a common cause”.[948] 303 The point of
disagreement between the Governments of the United States and of Great Britain was not
as to the responsibility of a State for the conduct of another State which it has coerced, but
rather the existence of “compulsion” in the particular circumstances of the case.[949] 304
[947] 302 Note from the United States Embassy in London, dated 16 February 1925, in Hackworth,
op. cit. (footnote [523] 142 above), p. 702.
[948] 303 Note from the British Foreign Office dated 5 July 1928, ibid., p. 704.
[949] 304 For a different example involving the coercion of a breach of contract in circumstances
amounting to a denial of justice, see C. L. Bouvé, “Russia’s liability in tort for Persia’s breach of contract”,
AJIL, vol. 6, No. 2 (April 1912), p. 389.
238
Article 19. Effect of this chapter
This chapter is without prejudice to the international responsibility, under other
provisions of these articles, of the State which commits the act in question, or of any
other State.
Commentary
(1) Article 19 serves three purposes. First, it preserves the responsibility of the State which
has committed the internationally wrongful act, albeit with the aid or assistance, under
the direction and control or subject to the coercion of another State. It recognizes that the
attribution of international responsibility to an assisting, directing or coercing State does
not preclude the responsibility of the assisted, directed or coerced State.
(2) Secondly, the article makes clear that the provisions of chapter IV are without prejudice
to any other basis for establishing the responsibility of the assisting, directing or
coercing State under any rule of international law defining particular conduct as wrongful.
The phrase “under other provisions of these articles” is a reference, inter alia, to article 23
(Force majeure), which might affect the question of responsibility. The phrase also draws
attention to the fact that other provisions of the draft articles may be relevant to the State
committing the act in question, and that chapter IV in no way precludes the issue of its
responsibility in that regard.
(3) Thirdly, article 19 preserves the responsibility “of any other State” to whom the internationally
wrongful conduct might also be attributable under other provisions of the articles.
(4) Thus, article 19 is intended to avoid any contrary inference in respect of responsibility
which may arise from primary rules, precluding certain forms of assistance, or from acts
otherwise attributable to any State under chapter II. The article covers both the implicated
and the acting State. It makes it clear that chapter IV is concerned only with situations in
which the act which lies at the origin of the wrong is an act committed by one State and not
by the other. If both States commit the act, then that situation would fall within the realm
of co-perpetrators, dealt with in chapter II.
239
Chapter V
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Commentary
(1) Chapter V sets out six circumstances precluding the wrongfulness of conduct that
would otherwise not be in conformity with the international obligations of the State
concerned. The existence in a given case of a circumstance precluding wrongfulness in
accordance with this chapter provides a shield against an otherwise well-founded claim
for the breach of an international obligation. The six circumstances are: consent (art. 20),
self-defence (art. 21), countermeasures (art. 22), force majeure (art. 23), distress (art. 24)
and necessity (art. 25). Article 26 makes it clear that none of these circumstances can be
relied on if to do so would conflict with a peremptory norm of general international law.
Article 27 deals with certain consequences of the invocation of one of these circumstances.
(2) Consistent with the approach of the present articles, the circumstances precluding
wrongfulness set out in chapter V are of general application. Unless otherwise
provided,[950] 305 they apply to any internationally wrongful act whether it involves the
breach by a State of an obligation arising under a rule of general international law, a treaty,
a unilateral act or from any other source. They do not annul or terminate the obligation;
rather they provide a justification or excuse for non-performance while the circumstance
in question subsists. This was emphasized by ICJ in the Gabčíkovo-Nagymaros Project case.
Hungary sought to argue that the wrongfulness of its conduct in discontinuing work on
the Project in breach of its obligations under the Treaty on the Construction and Operation
of the Gabčíkovo-Nagymaros Barrage System was precluded by necessity. In dealing with
the Hungarian plea, the Court said:
The state of necessity claimed by Hungary—supposing it to have been established—thus could not
permit of the conclusion that … it had acted in accordance with its obligations under the 1977 Treaty
or that those obligations had ceased to be binding upon it. It would only permit the affirmation that,
under the circumstances, Hungary would not incur international responsibility by acting as it did.[951] 306
Thus a distinction must be drawn between the effect of circumstances precluding wrongfulness
and the termination of the obligation itself. The circumstances in chapter V operate
as a shield rather than a sword. As Fitzmaurice noted, where one of the circumstances
precluding wrongfulness applies, “the non-performance is not only justified, but ‘looks
towards’ a resumption of performance so soon as the factors causing and justifying the
non-performance are no longer present”.[952] 307
(3) This distinction emerges clearly from the decisions of international tribunals. In the
“Rainbow Warrior” arbitration, the tribunal held that both the law of treaties and the law of
State responsibility had to be applied, the former to determine whether the treaty was still in
force, the latter to determine what the consequences were of any breach of the treaty while
[950] 305 For example, by a treaty to the contrary, which would constitute a lex specialis under article 55.
[951] 306 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 39, para. 48.
[952] 307 Yearbook … 1959, vol. II, p. 41, document A/CN.4/120.
240 Part One, Chapter V
it was in force, including the question whether the wrongfulness of the conduct in question
was precluded.[953] 308 In the Gabčíkovo-Nagymaros Project case, the Court noted that:
[E]ven if a state of necessity is found to exist, it is not a ground for the termination of a treaty. It
may only be invoked to exonerate from its responsibility a State which has failed to implement a
treaty. Even if found justified, it does not terminate a Treaty; the Treaty may be ineffective as long as
the condition of necessity continues to exist; it may in fact be dormant, but—unless the parties by
mutual agreement terminate the treaty—it continues to exist. As soon as the state of necessity ceases
to exist, the duty to comply with treaty obligations revives.[954] 309
(4) While the same facts may amount, for example, to force majeure under article 23 and
to a supervening impossibility of performance under article 61 of the 1969 Vienna Convention,
the two are distinct. Force majeure justifies non-performance of the obligation for
so long as the circumstance exists; supervening impossibility justifies the termination of
the treaty or its suspension in accordance with the conditions laid down in article 61. The
former operates in respect of the particular obligation, the latter with respect to the treaty
which is the source of that obligation. Just as the scope of application of the two doctrines
is different, so is their mode of application. Force majeure excuses non-performance for
the time being, but a treaty is not automatically terminated by supervening impossibility:
at least one of the parties must decide to terminate it.
(5) The concept of circumstances precluding wrongfulness may be traced to the work
of the Preparatory Committee of the 1930 Hague Conference. Among its Bases of
discussion,[955]310 it listed two “[c]ircumstances under which States can decline their responsibility”,
self-defence and reprisals.[956] 311 It considered that the extent of a State’s responsibility
in the context of diplomatic protection could also be affected by the “provocative
attitude” adopted by the injured person (Basis of discussion No. 19) and that a State could
not be held responsible for damage caused by its armed forces “in the suppression of an
insurrection, riot or other disturbance” (Basis of discussion No. 21). However, these issues
were not taken to any conclusion.
(6) The category of circumstances precluding wrongfulness was developed by ILC in its
work on international responsibility for injuries to aliens[957] 312 and the performance of
treaties.[958] 313 In the event, the subject of excuses for the non-performance of treaties was
not included within the scope of the 1969 Vienna Convention.[959] 314 It is a matter for the
law on State responsibility.
[953] 308 “Rainbow Warrior” (footnote [40] 46 above), pp. 251–252, para. 75.
[954] 309 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 63, para. 101; see also ibid., page
38, para. 47.
[955] 310 Yearbook … 1956, vol. II, pp. 219–225, document A/CN.4/96.
[956] 311 Ibid., pp. 224–225. Issues raised by the Calvo clause and the exhaustion of local remedies
were dealt with under the same heading.
[957] 312 Yearbook … 1958, vol. II, p. 72. For the discussion of the circumstances by Special Rapporteur
García Amador, see his first report on State responsibility, Yearbook … 1956, vol. II, pp. 203–209,
document A/CN.4/96, and his third report on State responsibility, Yearbook … 1958, vol. II, pp. 50–55,
document A/CN.4/111.
[958] 313 See the fourth report on the law of treaties of Special Rapporteur Fitzmaurice (footnote
[952] 307 above), pp. 44–47, and his comments, ibid., pp. 63–74.
[959] 314 See article 73 of the Convention.
Part One, Chapter V 241
(7) Circumstances precluding wrongfulness are to be distinguished from other arguments
which may have the effect of allowing a State to avoid responsibility. They have
nothing to do with questions of the jurisdiction of a court or tribunal over a dispute or the
admissibility of a claim. They are to be distinguished from the constituent requirements of
the obligation, i.e. those elements which have to exist for the issue of wrongfulness to arise
in the first place and which are in principle specified by the obligation itself. In this sense
the circumstances precluding wrongfulness operate like defences or excuses in internal
legal systems, and the circumstances identified in chapter V are recognized by many legal
systems, often under the same designation.[960] 315 On the other hand, there is no common
approach to these circumstances in internal law, and the conditions and limitations in
chapter V have been developed independently.
(8) Just as the articles do not deal with questions of the jurisdiction of courts or tribunals,
so they do not deal with issues of evidence or the burden of proof. In a bilateral dispute
over State responsibility, the onus of establishing responsibility lies in principle on the
claimant State. Where conduct in conflict with an international obligation is attributable
to a State and that State seeks to avoid its responsibility by relying on a circumstance under
chapter V, however, the position changes and the onus lies on that State to justify or excuse
its conduct. Indeed, it is often the case that only that State is fully aware of the facts which
might excuse its non-performance.
(9) Chapter V sets out the circumstances precluding wrongfulness presently recognized
under general international law.[961] 316 Certain other candidates have been excluded. For
example, the exception of non-performance (exceptio inadimpleti contractus) is best seen as
a specific feature of certain mutual or synallagmatic obligations and not a circumstance precluding
wrongfulness.[962] 317 The principle that a State may not benefit from its own wrongful
act is capable of generating consequences in the field of State responsibility but it is rather a
general principle than a specific circumstance precluding wrongfulness.[963]318 The so-called
“clean hands” doctrine has been invoked principally in the context of the admissibility of
claims before international courts and tribunals, though rarely applied. It also does not need
to be included here.[964] 319
[960] 315 See the comparative review by C. von Bar, The Common European Law of Torts (Oxford
University Press, 2000), vol. 2, pp. 499–592.
[961] 316 For the effect of contribution to the injury by the injured State or other person or entity,
see article 39 and commentary. This does not preclude wrongfulness but is relevant in determining the
extent and form of reparation.
[962] 317 Cf. Diversion of Water from the Meuse, Judgment, 1937, P.C.I.J., Series A/B, No. 70, p. 4,
especially at pp. 50 and 77. See also the fourth report on the law of treaties of Special Rapporteur Fitzmaurice
(footnote [952] 307 above), pp. 43–47; D. W. Greig, “Reciprocity, proportionality and the law of
treaties”, Virginia Journal of International Law, vol. 34 (1994), p. 295; and for a comparative review, G.
H. Treitel, Remedies for Breach of Contract: A Comparative Account (Oxford, Clarendon Press, 1988),
pp. 245–317. For the relationship between the exception of non-performance and countermeasures, see
below, paragraph (5) of commentary to Part Three, chap. II.
[963] 318 See, e.g., Case concerning the Factory at Chorzów, Jurisdiction (footnote [28] 34 above), p. 31;
cf. Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 67, para. 110.
[964] 319 See J. J. A. Salmon, “Des ‘mains propres’ comme condition de recevabilité des réclamations
internationales”, Annuaire français de droit international, vol. 10 (1964), p. 225; A. Miaja de la Muela, “Le
rôle de la condition des mains propres de la personne lésée dans les réclamations devant les tribunaux
internationaux”, Mélanges offerts à Juraj Andrassy (The Hague, Martinus Nijhoff, 1968), p. 189, and the
242 Part One, Chapter V
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal
Case concerning the difference between New Zealand and France concerning the interpretation
or application of two agreements concluded on 9 July 1986 between the two States
and which related to the problems arising from the Rainbow Warrior Affair
In its 1990 award in the Rainbow Warrior case, the arbitral tribunal observed that
France had alleged, “citing the report of the International Law Commission”, [that] the reasons
which may be invoked to justify non-execution of a treaty are a part of the general subject
matter of the international responsibility of States”.[965] 137 Having considered that, inter
alia, the determination of the circumstances that may exclude wrongfulness was a subject
that belonged to the customary law of State responsibility, the tribunal referred to the set of
rules provisionally adopted by the International Law Commission under the title “circumstances
precluding wrongfulness” (draft articles 29 to 35), and in particular to draft articles
31, 32 and 33, which it considered to be relevant to the decision on that case.[966] 138
[A/62/62, para. 86]
International arbitral tribunal (under Annex VII to the 1982 United Nations
Convention on the Law of the Sea)
In the matter of an Arbitration Between Guyana and Suriname
In its 2007 award in the Guyana v. Suriname case, involving the delimitation of a
maritime boundary between the two States, the arbitral tribunal constituted to hear the
case considered a challenge by Suriname to the admissibility of the proceedings on the
grounds of lack of good faith and clean hands. In dismissing such challenge, the tribunal
maintained that “[n]o generally accepted definition of the clean hands doctrine has been
elaborated in international law”, and noted that “the Commentaries to the ILC Draft Articles
on State Responsibility acknowledge that the doctrine has been applied rarely and,
when it has been invoked, its expression has come in many forms”.[967] 19
[A/65/76, para. 22]
dissenting opinion of Judge Schwebel in Military and Paramilitary Activities in and against Nicaragua
(footnote [30] 36 above), pp. 392–394.
[965] 137 See footnote [40] 46 above, para. 74.
[966] 138 Ibid., pp. 251–252, paras. 75–76.
[967] 19 In the matter of an Arbitration Between Guyana and Suriname, Award, 17 September 2007,
para. 418 (footnote omitted), referring to paragraph (9) of the general commentary to Part One, Chapter
V (“Circumstance precluding wrongfulness”).
243
Article 20. Consent
Valid consent by a State to the commission of a given act by another State precludes
the wrongfulness of that act in relation to the former State to the extent that the act
remains within the limits of that consent.
Commentary
(1) Article 20 reflects the basic international law principle of consent in the particular
context of Part One. In accordance with this principle, consent by a State to particular
conduct by another State precludes the wrongfulness of that act in relation to the consenting
State, provided the consent is valid and to the extent that the conduct remains within
the limits of the consent given.
(2) It is a daily occurrence that States consent to conduct of other States which, without
such consent, would constitute a breach of an international obligation. Simple examples
include transit through the airspace or internal waters of a State, the location of facilities
on its territory or the conduct of official investigations or inquiries there. But a distinction
must be drawn between consent in relation to a particular situation or a particular course
of conduct, and consent in relation to the underlying obligation itself. In the case of a
bilateral treaty the States parties can at any time agree to terminate or suspend the treaty,
in which case obligations arising from the treaty will be terminated or suspended accordingly.[
968] 320 But quite apart from that possibility, States have the right to dispense with the
performance of an obligation owed to them individually, or generally to permit conduct
to occur which (absent such permission) would be unlawful so far as they are concerned.
In such cases, the primary obligation continues to govern the relations between the two
States, but it is displaced on the particular occasion or for the purposes of the particular
conduct by reason of the consent given.
(3) Consent to the commission of otherwise wrongful conduct may be given by a State
in advance or even at the time it is occurring. By contrast, cases of consent given after the
conduct has occurred are a form of waiver or acquiescence, leading to loss of the right to
invoke responsibility. This is dealt with in article 45.
(4) In order to preclude wrongfulness, consent dispensing with the performance of an
obligation in a particular case must be “valid”. Whether consent has been validly given is
a matter addressed by international law rules outside the framework of State responsibility.
Issues include whether the agent or person who gave the consent was authorized to do so
on behalf of the State (and if not, whether the lack of that authority was known or ought
to have been known to the acting State), or whether the consent was vitiated by coercion
or some other factor.[969] 321 Indeed there may be a question whether the State could validly
consent at all. The reference to a “valid consent” in article 20 highlights the need to consider
these issues in certain cases.
[968] 320 1969 Vienna Convention, art. 54 (b).
[969] 321 See, e.g., the issue of Austrian consent to the Anschluss of 1938, dealt with by the Nuremberg
Tribunal. The tribunal denied that Austrian consent had been given; even if it had, it would have
been coerced and did not excuse the annexation. See “International Military Tribunal (Nuremberg),
judgment and sentences—October 1, 1946: judgment”, reprinted in AJIL, vol. 41, No. 1 (January 1947)
p. 172, at pp. 192–194.
244 Article 20
(5) Whether a particular person or entity had the authority to grant consent in a given
case is a separate question from whether the conduct of that person or entity was attributable
to the State for the purposes of chapter II. For example, the issue has arisen whether
consent expressed by a regional authority could legitimize the sending of foreign troops
into the territory of a State, or whether such consent could only be given by the central
Government, and such questions are not resolved by saying that the acts of the regional
authority are attributable to the State under article 4.[970] 322 In other cases, the “legitimacy”
of the Government which has given the consent has been questioned. Sometimes the
validity of consent has been questioned because the consent was expressed in violation of
relevant provisions of the State’s internal law. These questions depend on the rules of international
law relating to the expression of the will of the State, as well as rules of internal
law to which, in certain cases, international law refers.
(6) Who has authority to consent to a departure from a particular rule may depend on
the rule. It is one thing to consent to a search of embassy premises, another to the establishment
of a military base on the territory of a State. Different officials or agencies may
have authority in different contexts, in accordance with the arrangements made by each
State and general principles of actual and ostensible authority. But in any case, certain
modalities need to be observed for consent to be considered valid. Consent must be freely
given and clearly established. It must be actually expressed by the State rather than merely
presumed on the basis that the State would have consented if it had been asked. Consent
may be vitiated by error, fraud, corruption or coercion. In this respect, the principles concerning
the validity of consent to treaties provide relevant guidance.
(7) Apart from drawing attention to prerequisites to a valid consent, including issues of
the authority to consent, the requirement for consent to be valid serves a further function.
It points to the existence of cases in which consent may not be validly given at all. This
question is discussed in relation to article 26 (compliance with peremptory norms), which
applies to chapter V as a whole.[971] 323
(8) Examples of consent given by a State which has the effect of rendering certain conduct
lawful include commissions of inquiry sitting on the territory of another State, the
exercise of jurisdiction over visiting forces, humanitarian relief and rescue operations and
the arrest or detention of persons on foreign territory. In the Savarkar case, the arbitral
tribunal considered that the arrest of Savarkar was not a violation of French sovereignty
as France had implicitly consented to the arrest through the conduct of its gendarme, who
aided the British authorities in the arrest.[972] 324 In considering the application of article 20
to such cases it may be necessary to have regard to the relevant primary rule. For example,
only the head of a diplomatic mission can consent to the receiving State’s entering the
premises of the mission.[973] 325
(9) Article 20 is concerned with the relations between the two States in question. In circumstances
where the consent of a number of States is required, the consent of one State
[970] 322 This issue arose with respect to the dispatch of Belgian troops to the Republic of the Congo
in 1960. See Official Records of the Security Council, Fifteenth Year, 873rd meeting, 13–14 July 1960,
particularly the statement of the representative of Belgium, paras. 186–188 and 209.
[971] 323 See paragraph (6) of the commentary to article 26.
[972] 324 UNRIAA, vol. XI (Sales No. 61.V.4), p. 243, at pp. 252–255 (1911).
[973] 325 Vienna Convention on Diplomatic Relations, art. 22, para. 1.
Article 20 245
will not preclude wrongfulness in relation to another.[974] 326 Furthermore, where consent
is relied on to preclude wrongfulness, it will be necessary to show that the conduct fell
within the limits of the consent. Consent to overflight by commercial aircraft of another
State would not preclude the wrongfulness of overflight by aircraft transporting troops
and military equipment. Consent to the stationing of foreign troops for a specific period
would not preclude the wrongfulness of the stationing of such troops beyond that period.[
975]327 These limitations are indicated by the words “given act” in article 20 as well as by
the phrase “within the limits of that consent”.
(10) Article 20 envisages only the consent of States to conduct otherwise in breach of an
international obligation. International law may also take into account the consent of non-
State entities such as corporations or private persons. The extent to which investors can
waive the rules of diplomatic protection by agreement in advance has long been controversial,
but under the Convention on the Settlement of Investment Disputes between States and
Nationals of other States (art. 27, para. 1), consent by an investor to arbitration under the
Convention has the effect of suspending the right of diplomatic protection by the investor’s
national State. The rights conferred by international human rights treaties cannot be waived
by their beneficiaries, but the individual’s free consent may be relevant to their application.[
976] 328 In these cases the particular rule of international law itself allows for the consent
in question and deals with its effect. By contrast, article 20 states a general principle so far
as enjoyment of the rights and performance of the obligations of States are concerned.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
World Trade Organization Appellate Body
Peru—Additional Duty on Imports of Certain Agricultural Products
In Peru—Additional Duty on Imports of Certain Agricultural Products, the Appellate
Body of the WTO noted that “without reaching the questions of whether the … ILC Articles
20 and 45 are ‘rules of international law applicable in the relations between the parties’
within the meaning of Article 31(3)(c) of the Vienna Convention …, we disagree with Peru
[974] 326 Austrian consent to the proposed customs union of 1931 would not have precluded its
wrongfulness in regard of the obligation to respect Austrian independence owed by Germany to all the
parties to the Treaty of Peace between the Allied and Associated Powers and Germany (Treaty of Versailles).
Likewise, Germany’s consent would not have precluded the wrongfulness of the customs union
in respect of the obligation of the maintenance of its complete independence imposed on Austria by the
Treaty of Peace between the Allied and Associated Powers and Austria (Peace Treaty of Saint-Germainen-
Laye). See Customs Régime between Germany and Austria, Advisory Opinion, 1931, P.C.I.J., Series
A/B, No. 41, p. 37, at pp. 46 and 49.
[975] 327 The non-observance of a condition placed on the consent will not necessarily take conduct
outside of the limits of the consent. For example, consent to a visiting force on the territory of a State
may be subject to a requirement to pay rent for the use of facilities. While the non-payment of the rent
would no doubt be a wrongful act, it would not transform the visiting force into an army of occupation.
[976] 328 See, e.g., International Covenant on Civil and Political Rights, arts. 7; 8, para. 3; 14, para. 3
(g); and 23, para. 3.
246 Article 20
that the … ILC Articles 20 and 45 are ‘relevant’ rules of international law within the meaning
of Article 31(3)(c)”.[977] 126 The Appellate Body thus found that
[h]aving concluded that the … ILC Articles 20 and 45 are not ‘relevant’ to the interpretation of Article
4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994 within the meaning of
Article 31(3)(c) of the Vienna Convention …, there is no need for us to address whether the … ILC
Articles 20 and 45 are ‘rules of international law applicable in the relations between the parties’, or
the meaning of the term ‘parties’ in both Article 31(3)(a) and (c) of the Vienna Convention.[978] 127
[A/71/80, para. 92]
[The Appellate Body … indicated that “there is no need for us to address whether
the … ILC Articles 20 and 45 are ‘rules of international law applicable in the relations
between the parties’, or the meaning of the term ‘parties’ in both Article 31(3)(a) and (c) of
the Vienna Convention”.[979] 234
[A/71/80, para. 157]]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
referred to articles 12 and 20 to 25, noting that “[t]here is a breach only when the conduct
of a State is not in conformity with what is required of it by an international obligation,
provided that there are no circumstances precluding the wrongfulness”.[980] 82
[A/77/74, p. 17]]
[977] 126 WTO, Appellate Body Report, WT/DS457/AB/R and Add. 1, 20 July 2015, para. 5.104 (as
restated in paras. 5.118 and 6.4).
[978] 127 Ibid., para. 5.105 (as restated in paras. 5.118 and 6.4).
[979] 234 [WTO, Appellate Body Report, WT/DS457/AB/R and Add. 1, 20 July 2015, para. 5.105 (as
restated in paras. 5.118 and 6.4).]
[980] [82 See footnote [126] 14 above, para. 155.]
247
Article 21. Self-defence
The wrongfulness of an act of a State is precluded if the act constitutes a lawful
measure of self-defence taken in conformity with the Charter of the United Nations.
Commentary
(1) The existence of a general principle admitting self-defence as an exception to the prohibition
against the use of force in international relations is undisputed. Article 51 of the
Charter of the United Nations preserves a State’s “inherent right” of self-defence in the face
of an armed attack and forms part of the definition of the obligation to refrain from the
threat or use of force laid down in Article 2, paragraph 4. Thus, a State exercising its inherent
right of self-defence as referred to in Article 51 of the Charter is not, even potentially,
in breach of Article 2, paragraph 4.[981] 329
(2) Self-defence may justify non-performance of certain obligations other than that under
Article 2, paragraph 4, of the Charter of the United Nations, provided that such nonperformance
is related to the breach of that provision. Traditional international law dealt
with these problems by instituting a separate legal regime of war, defining the scope of belligerent
rights and suspending most treaties in force between the belligerents on the outbreak
of war.[982] 330 In the Charter period, declarations of war are exceptional and military
actions proclaimed as self-defence by one or both parties occur between States formally at
“peace” with each other.[983] 331 The 1969 Vienna Convention leaves such issues to one side
by providing in article 73 that the Convention does not prejudice “any question that may
arise in regard to a treaty … from the outbreak of hostilities between States”.
(3) This is not to say that self-defence precludes the wrongfulness of conduct in all cases
or with respect to all obligations. Examples relate to international humanitarian law and
human rights obligations. The Geneva Conventions for the protection of war victims of
12 August 1949 and the Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the protection of victims of international armed conflicts (Protocol
I) apply equally to all the parties in an international armed conflict, and the same is true
of customary international humanitarian law.[984] 332 Human rights treaties contain derogation
provisions for times of public emergency, including actions taken in self-defence. As to
obligations under international humanitarian law and in relation to non-derogable human
rights provisions, self-defence does not preclude the wrongfulness of conduct.
[981] 329 Cf. Legality of the Threat or Use of Nuclear Weapons (footnote [48] 54 above), p. 244, para. 38,
and p. 263, para. 96, emphasizing the lawfulness of the use of force in self-defence.
[982] 330 See further Lord McNair and A. D. Watts, The Legal Effects of War, 4th ed. (Cambridge
University Press, 1966).
[983] 331 In Oil Platforms, Preliminary Objection (footnote [750] 208 above), it was not denied that the
1955 Treaty of Amity, Economic Relations and Consular Rights remained in force, despite many actions
by United States naval forces against the Islamic Republic of Iran. In that case both parties agreed that
to the extent that any such actions were justified by self-defence they would be lawful.
[984] 332 As the Court said of the rules of international humanitarian law in the advisory opinion on
the Legality of the Threat or Use of Nuclear Weapons (footnote [48] 54 above), p. 257, para. 79, “they constitute
intransgressible principles of international customary law”. On the relationship between human
rights and humanitarian law in times of armed conflict, see page 240, para. 25.
248 Article 21
(4) ICJ in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons
provided some guidance on this question. One issue before the Court was whether a use
of nuclear weapons would necessarily be a breach of environmental obligations because of
the massive and long-term damage such weapons can cause. The Court said:
[T]he issue is not whether the treaties relating to the protection of the environment are or are not
applicable during an armed conflict, but rather whether the obligations stemming from these treaties
were intended to be obligations of total restraint during military conflict.
The Court does not consider that the treaties in question could have intended to deprive a State
of the exercise of its right of self-defence under international law because of its obligations to protect
the environment. Nonetheless, States must take environmental considerations into account
when assessing what is necessary and proportionate in the pursuit of legitimate military objectives.
Respect for the environment is one of the elements that go to assessing whether an action is in conformity
with the principles of necessity and proportionality.[985] 333
A State acting in self-defence is “totally restrained” by an international obligation if that
obligation is expressed or intended to apply as a definitive constraint even to States in
armed conflict.[986] 334
(5) The essential effect of article 21 is to preclude the wrongfulness of conduct of a State
acting in self-defence vis-à-vis an attacking State. But there may be effects vis-à-vis third
States in certain circumstances. In its advisory opinion on the Legality of the Threat or Use
of Nuclear Weapons, the Court observed that:
[A]s in the case of the principles of humanitarian law applicable in armed conflict, international
law leaves no doubt that the principle of neutrality, whatever its content, which is of a fundamental
character similar to that of the humanitarian principles and rules, is applicable (subject to the relevant
provisions of the United Nations Charter), to all international armed conflict, whatever type
of weapons might be used.[987] 335
The law of neutrality distinguishes between conduct as against a belligerent and conduct
as against a neutral. But neutral States are not unaffected by the existence of a state of war.
Article 21 leaves open all issues of the effect of action in self-defence vis-à-vis third States.
(6) Thus, article 21 reflects the generally accepted position that self-defence precludes
the wrongfulness of the conduct taken within the limits laid down by international law.
The reference is to action “taken in conformity with the Charter of the United Nations”.
In addition, the term “lawful” implies that the action taken respects those obligations of
total restraint applicable in international armed conflict, as well as compliance with the
requirements of proportionality and of necessity inherent in the notion of self-defence.
Article 21 simply reflects the basic principle for the purposes of chapter V, leaving questions
of the extent and application of self-defence to the applicable primary rules referred
to in the Charter.
[985] 333 Ibid., p. 242, para. 30.
[986] 334 See, e.g., the Convention on the Prohibition of Military or any Other Hostile Use of Environmental
Modification Techniques.
[987] 335 See footnote [48] 54 above, p. 261, para. 89.
Article 21 249
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
[Permanent Court of Arbitration (under UNCITRAL Rules)
Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
referred to articles 12 and 20 to 25, noting that “[t]here is a breach only when the conduct
of a State is not in conformity with what is required of it by an international obligation,
provided that there are no circumstances precluding the wrongfulness”.[988] 82
[A/77/74, p. 17]]
[988] [82 See footnote [126] 14 above, para. 155.]
250
Article 22. Countermeasures in respect of an internationally wrongful act
The wrongfulness of an act of a State not in conformity with an international obligation
towards another State is precluded if and to the extent that the act constitutes a
countermeasure taken against the latter State in accordance with chapter II of Part Three.
Commentary
(1) In certain circumstances, the commission by one State of an internationally wrongful
act may justify another State injured by that act in taking non-forcible countermeasures in
order to procure its cessation and to achieve reparation for the injury. Article 22 deals with
this situation from the perspective of circumstances precluding wrongfulness. Chapter II
of Part Three regulates countermeasures in further detail.
(2) Judicial decisions, State practice and doctrine confirm the proposition that countermeasures
meeting certain substantive and procedural conditions may be legitimate. In the
Gabčíkovo-Nagymaros Project case, ICJ clearly accepted that countermeasures might justify
otherwise unlawful conduct “taken in response to a previous international wrongful
act of another State and … directed against that State”,[989] 336 provided certain conditions
are met. Similar recognition of the legitimacy of measures of this kind in certain cases can
be found in arbitral decisions, in particular the “Naulilaa”,[990] 337 “Cysne”,[991] 338 and Air
Service Agreement[992] 339 awards.
(3) In the literature concerning countermeasures, reference is sometimes made to the
application of a “sanction”, or to a “reaction” to a prior internationally wrongful act; historically
the more usual terminology was that of “legitimate reprisals” or, more generally,
measures of “self-protection” or “self-help”. The term “sanctions” has been used for measures
taken in accordance with the constituent instrument of some international organization,
in particular under Chapter VII of the Charter of the United Nations—despite the
fact that the Charter uses the term “measures”, not “sanctions”. The term “reprisals” is
now no longer widely used in the present context, because of its association with the law
of belligerent reprisals involving the use of force. At least since the Air Service Agreement
arbitration,[993] 340 the term “countermeasures” has been preferred, and it has been adopted
for the purposes of the present articles.
(4) Where countermeasures are taken in accordance with article 22, the underlying obligation
is not suspended, still less terminated; the wrongfulness of the conduct in question
is precluded for the time being by reason of its character as a countermeasure, but only
provided that and for so long as the necessary conditions for taking countermeasures are
satisfied. These conditions are set out in Part Three, chapter II, to which article 22 refers.
As a response to internationally wrongful conduct of another State countermeasures may
be justified only in relation to that State. This is emphasized by the phrases “if and to the
[989] 336 Gabčíkovo-Nagymaros Project (see footnote [31] 37 above), p. 55, para. 83.
[990] 337 Portuguese Colonies case (Naulilaa incident), UNRIAA, vol. II (Sales No. 1949.V.1), p. 1011,
at pp. 1025–1026 (1928).
[991] 338 Ibid., p. 1035, at p. 1052 (1930).
[992] [339 Case concerning the Air Service Agreement of 27 March 1946 between the United States of
America and France, decision of 9 December 1978, UNRIAA, vol. XVIII (Sales No. E/F.80.V.7), p. 415.]
[993] 340 Ibid., especially pp. 443–446, paras. 80–98.
Article 22 251
extent” and “countermeasures taken against” the responsible State. An act directed against
a third State would not fit this definition and could not be justified as a countermeasure.
On the other hand, indirect or consequential effects of countermeasures on third parties,
which do not involve an independent breach of any obligation to those third parties, will
not take a countermeasure outside the scope of article 22.
(5) Countermeasures may only preclude wrongfulness in the relations between an injured
State and the State which has committed the internationally wrongful act. The principle is
clearly expressed in the “Cysne” case, where the tribunal stressed that:
reprisals, which constitute an act in principle contrary to the law of nations, are defensible only
insofar as they were provoked by some other act likewise contrary to that law. Only reprisals taken
against the provoking State are permissible. Admittedly, it can happen that legitimate reprisals taken
against an offending State may affect the nationals of an innocent State. But that would be an indirect
and unintentional consequence which, in practice, the injured State will always endeavour to
avoid or to limit as far as possible.[994] 341
Accordingly, the wrongfulness of Germany’s conduct vis-à-vis Portugal was not precluded.
Since it involved the use of armed force, this decision concerned belligerent reprisals rather
than countermeasures in the sense of article 22. But the same principle applies to countermeasures,
as the Court confirmed in the Gabčíkovo-Nagymaros Project case when it stressed
that the measure in question must be “directed against” the responsible State.[995] 342
(6) If article 22 had stood alone, it would have been necessary to spell out other conditions
for the legitimacy of countermeasures, including in particular the requirement of
proportionality, the temporary or reversible character of countermeasures and the status
of certain fundamental obligations which may not be subject to countermeasures. Since
these conditions are dealt with in Part Three, chapter II, it is sufficient to make a cross
reference to them here. Article 22 covers any action which qualifies as a countermeasure
in accordance with those conditions. One issue is whether countermeasures may be taken
by third States which are not themselves individually injured by the internationally wrongful
act in question, although they are owed the obligation which has been breached.[996] 343
For example, in the case of an obligation owed to the international community as a whole
ICJ has affirmed that all States have a legal interest in compliance.[997] 344 Article 54 leaves
open the question whether any State may take measures to ensure compliance with certain
international obligations in the general interest as distinct from its own individual interest
as an injured State. While article 22 does not cover measures taken in such a case to the
extent that these do not qualify as countermeasures, neither does it exclude that possibility.
[994] 341 “Cysne” (footnote [991] 338 above), pp. 1056–1057.
[995] 342 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 55, para. 83.
[996] 343 For the distinction between injured States and other States entitled to invoke State responsibility,
see articles 42 and 48 and commentaries.
[997] 344 Barcelona Traction (footnote [46] 52 above), p. 32, para. 33.
252 Article 22
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Additional Facility Rules)
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the
United Mexican States
In its 2007 award, the tribunal established to hear the case of Archer Daniels Midland
Company and Tate & Lyle Ingredients Americas, Inc. v. Mexico cited article 22 of the State
responsibility articles in support of its assertion that:
Countermeasures may constitute a valid defence against a breach of Chapter Eleven [of NAFTA]
insofar as the Respondent State proves that the measure in question meets each of the conditions
required by customary international law, as applied to the facts of the case.[998] 20
The tribunal provided further that
[it] took as an authoritative statement of customary international law on countermeasures the position
of the International Court of Justice [in the Gabčíkovo-Nagymaros case], as confirmed by [articles
22 and 49 of] the ILC Articles.[999] 21
[A/65/76, para. 23]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Corn Products International Inc. v. The United Mexican States
In its 2008 Decision on Responsibility, the tribunal established to hear the case of
Corn Products International Inc. v. Mexico held that adverse rulings by a WTO panel and
Appellate Body did not preclude the respondent from raising the defence of the taking of
lawful countermeasures in the case before it which involved alleged violations of obligations
under NAFTA. The tribunal explained that
… the fact that the tax violated Mexico’s obligations under the GATT [did not] mean that it could
not constitute a countermeasure which operated to preclude wrongfulness under the NAFTA. It
is a feature of countermeasures that they may operate to preclude wrongfulness in respect of one
obligation of the State which takes them, while not affecting another obligation of that State. This is
apparent from the text of Article 50 of the ILC Articles on State Responsibility … [which] appears
to contemplate that a measure which is contrary to one of [the obligations referred to in article 50,
paragraph 1,] will entail a breach of that obligation by the State which undertakes it but may nevertheless
preclude the wrongfulness in relation to another obligation of the State which does not fall
within paragraphs (a) to (d).[1000] 22
Nonetheless, the tribunal subsequently held that, since NAFTA conferred upon investors
substantive rights separate and distinct from those of the State of which they are
nationals, a countermeasure ostensibly taken against the United States could not deprive
investors of such rights, and accordingly could not be raised as a circumstance precluding
[998] 20 See footnote [3] 4 above, para. 121.
[999] 21 Ibid., para. 125.
[1000] 22 See footnote [4] 5 above, para. 158, emphasis in the original.
Article 22 253
wrongfulness in relation to a violation of the investor’s rights.[1001] 23 The tribunal also held
that the defence of the taking of lawful countermeasures could not be upheld because the
Respondent had failed to establish the existence of a prior breach of international law by
the United States, in response to which the Respondent was taking the countermeasure. As
the United States was not a party to the proceedings, the tribunal held that it did not have
the jurisdiction to evaluate such a claim. [1002] 24
[A/65/76, para. 24]
International Court of Justice
Application of the Interim Accord of 13 September 1995 (the Former Yugoslav Republic of
Macedonia v. Greece)
In its judgment in the Application of the Interim Accord of 13 September 1995 (the Former
Yugoslav Republic of Macedonia v. Greece), the International Court of Justice referred
to the State responsibility articles when rejecting the respondent’s claim that “its objection
could be justified as a countermeasure precluding the wrongfulness of the Respondent’s
objection to the Applicant’s admission to NATO”.[1003] 121
[A/68/72, para. 88]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
referred to articles 12 and 20 to 25, noting that “[t]here is a breach only when the conduct
of a State is not in conformity with what is required of it by an international obligation,
provided that there are no circumstances precluding the wrongfulness”.[1004] 82
[A/77/74, p. 17]]
[1001] 23 Ibid., paras. 167 and 176. See also article 49.
[1002] 24 Ibid., paras. 182–189. See also article 49.
[1003] 121 ICJ, Judgment, 5 December 2011, I.C.J. Reports 2011, p. 644, at p. 692, para. 164.
[1004] [82 See footnote [126] 14 above, para. 155.]
254
Article 23. Force majeure
1. The wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the act is due to force majeure, that is the occurrence
of an irresistible force or of an unforeseen event, beyond the control of the State,
making it materially impossible in the circumstances to perform the obligation.
2. Paragraph 1 does not apply if:
(a) the situation of force majeure is due, either alone or in combination with other
factors, to the conduct of the State invoking it; or
(b) the State has assumed the risk of that situation occurring.
Commentary
(1) Force majeure is quite often invoked as a ground for precluding the wrongfulness of an
act of a State.[1005] 345 It involves a situation where the State in question is in effect compelled
to act in a manner not in conformity with the requirements of an international obligation
incumbent upon it. Force majeure differs from a situation of distress (art. 24) or necessity
(art. 25) because the conduct of the State which would otherwise be internationally wrongful
is involuntary or at least involves no element of free choice.
(2) A situation of force majeure precluding wrongfulness only arises where three elements
are met: (a) the act in question must be brought about by an irresistible force or an unforeseen
event; (b) which is beyond the control of the State concerned; and (c) which makes it
materially impossible in the circumstances to perform the obligation. The adjective “irresistible”
qualifying the word “force” emphasizes that there must be a constraint which the
State was unable to avoid or oppose by its own means. To have been “unforeseen” the event
must have been neither foreseen nor of an easily foreseeable kind. Further the “irresistible
force” or “unforeseen event” must be causally linked to the situation of material impossibility,
as indicated by the words “due to force majeure … making it materially impossible”.
Subject to paragraph 2, where these elements are met, the wrongfulness of the State’s conduct
is precluded for so long as the situation of force majeure subsists.
(3) Material impossibility of performance giving rise to force majeure may be due to a
natural or physical event (e.g. stress of weather which may divert State aircraft into the territory
of another State, earthquakes, floods or drought) or to human intervention (e.g. loss
of control over a portion of the State’s territory as a result of an insurrection or devastation
of an area by military operations carried out by a third State), or some combination of the
two. Certain situations of duress or coercion involving force imposed on the State may also
amount to force majeure if they meet the various requirements of article 23. In particular,
the situation must be irresistible, so that the State concerned has no real possibility of
escaping its effects. Force majeure does not include circumstances in which performance
of an obligation has become more difficult, for example due to some political or economic
[1005] 345 “‘Force majeure’ and ‘fortuitous event’ as circumstances precluding wrongfulness: survey
of State practice, international judicial decisions and doctrine”, study prepared by the Secretariat (Yearbook
… 1978, vol. II (Part One), p. 61, document A/CN.4/315).
Article 23 255
crisis. Nor does it cover situations brought about by the neglect or default of the State
concerned,[1006] 346 even if the resulting injury itself was accidental and unintended.[1007] 347
(4) In drafting what became article 61 of the 1969 Vienna Convention, ILC took the view
that force majeure was a circumstance precluding wrongfulness in relation to treaty performance,
just as supervening impossibility of performance was a ground for termination
of a treaty.[1008] 348 The same view was taken at the United Nations Conference on the Law
of Treaties.[1009] 349 But in the interests of the stability of treaties, the Conference insisted on
a narrow formulation of article 61 so far as treaty termination is concerned. The degree of
difficulty associated with force majeure as a circumstance precluding wrongfulness, though
considerable, is less than is required by article 61 for termination of a treaty on grounds of
supervening impossibility, as ICJ pointed out in the Gabčíkovo-Nagymaros Project case:
Article 61, paragraph 1, requires the “permanent disappearance or destruction of an object indispensable
for the execution” of the treaty to justify the termination of a treaty on grounds of impossibility
of performance. During the conference, a proposal was made to extend the scope of the
article by including in it cases such as the impossibility to make certain payments because of serious
financial difficulties … Although it was recognized that such situations could lead to a preclusion
of the wrongfulness of non-performance by a party of its treaty obligations, the participating States
were not prepared to consider such situations to be a ground for terminating or suspending a treaty,
and preferred to limit themselves to a narrower concept.[1010] 350
(5) In practice, many of the cases where “impossibility” has been relied upon have not
involved actual impossibility as distinct from increased difficulty of performance and
the plea of force majeure has accordingly failed. But cases of material impossibility have
occurred, e.g. where a State aircraft is forced, due to damage or loss of control of the aircraft
[1006] 346 For example, in relation to occurrences such as the bombing of La Chaux-de-Fonds by
German airmen on 17 October 1915, and of Porrentruy by a French airman on 26 April 1917, ascribed
to negligence on the part of the airmen, the belligerent undertook to punish the offenders and make
reparation for the damage suffered (study prepared by the Secretariat, ibid., paras. 255–256).
[1007] 347 For example, in 1906 an American officer on the USS Chattanooga was mortally wounded
by a bullet from a French warship as his ship entered the Chinese harbour of Chefoo. The United States
Government obtained reparation, having maintained that:
“While the killing of Lieutenant England can only be viewed as an accident, it cannot be
regarded as belonging to the unavoidable class whereby no responsibility is entailed. Indeed,
it is not conceivable how it could have occurred without the contributory element of lack of
proper precaution on the part of those officers of the Dupetit Thouars who were in responsible
charge of the rifle firing practice and who failed to stop firing when the Chattanooga, in the
course of her regular passage through the public channel, came into the line of fire.”
M. M. Whiteman, Damages in International Law (Washington, D. C., United States Government
Printing Office, 1937), vol. I, p. 221. See also the study prepared by the Secretariat (footnote [1005] 345
above), para. 130.
[1008] 348 Yearbook … 1966, vol. II, p. 255.
[1009] 349 See, e.g., the proposal of the representative of Mexico, United Nations Conference on the Law
of Treaties, First and second sessions, Vienna, 26 March–24 May 1968 and 9 April–22 May 1969, Documents
of the Conference (United Nations publication, Sales No. E.70.V.5), Report of the Committee of the Whole
on its work at the first session of the Conference, document A/CONF.39/14, p. 182, para. 531 (a).
[1010] 350 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 63, para. 102.
256 Article 23
owing to weather, into the airspace of another State without the latter’s authorization. In
such cases the principle that wrongfulness is precluded has been accepted.[1011] 351
(6) Apart from aerial incidents, the principle in article 23 is also recognized in relation to
ships in innocent passage by article 14, paragraph 3, of the Convention on the Territorial
Sea and the Contiguous Zone (the United Nations Convention on the Law of the Sea, art.
18, para. 2), as well as in article 7, paragraph 1, of the Convention on Transit Trade of Landlocked
States. In these provisions, force majeure is incorporated as a constituent element of
the relevant primary rule; nonetheless, its acceptance in these cases helps to confirm the
existence of a general principle of international law to similar effect.
(7) The principle has also been accepted by international tribunals. Mixed claims commissions
have frequently cited the unforeseeability of attacks by rebels in denying the
responsibility of the territorial State for resulting damage suffered by foreigners.[1012] 352 In
the Lighthouses arbitration, a lighthouse owned by a French company had been requisitioned
by the Government of Greece in 1915 and was subsequently destroyed by enemy
action. The arbitral tribunal denied the French claim for restoration of the lighthouse on
grounds of force majeure.[1013] 353 In the Russian Indemnity case, the principle was accepted
but the plea of force majeure failed because the payment of the debt was not materially
impossible.[1014] 354 Force majeure was acknowledged as a general principle of law (though
again the plea was rejected on the facts of the case) by PCIJ in the Serbian Loans and Brazilian
Loans cases.[1015] 355 More recently, in the “Rainbow Warrior” arbitration, France relied
on force majeure as a circumstance precluding the wrongfulness of its conduct in removing
the officers from Hao and not returning them following medical treatment. The tribunal
dealt with the point briefly:
[1011] 351 See, e.g., the cases of accidental intrusion into airspace attributable to weather, and the cases
of accidental bombing of neutral territory attributable to navigational errors during the First World War
discussed in the study prepared by the Secretariat (footnote [1005] 345 above), paras. 250–256. See also
the exchanges of correspondence between the States concerned in the incidents involving United States
military aircraft entering the airspace of Yugoslavia in 1946, United States of America, Department
of State Bulletin (Washington, D. C.), vol. XV, No. 376 (15 September 1946), p. 502, reproduced in the
study prepared by the Secretariat, para. 144, and the incident provoking the application to ICJ in 1954,
I.C.J. Pleadings, Treatment in Hungary of Aircraft and Crew of the United States of America, p. 14 (note
to the Hungarian Government of 17 March 1953). It is not always clear whether these cases are based on
distress or force majeure.
[1012] 352 See, e.g., the decision of the American-British Claims Commission in the Saint Albans
Raid case, Moore, History and Digest, vol. IV, p. 4042 (1873), and the study prepared by the Secretariat
(footnote [1005] 345 above), para. 339; the decisions of the United States-Venezuela Claims Commission
in the Wipperman case, Moore, History and Digest, vol. III, p. 3039, and the study prepared by the Secretariat,
paras. 349–350; De Brissot and others case (footnote [234] 117 above), and the study prepared by
the Secretariat, para. 352; and the decision of the British-Mexican Claims Commission in the Gill case,
UNRIAA, vol. V (Sales No. 1952.V.3), p. 157 (1931), and the study prepared by the Secretariat, para. 463.
[1013] 353 Lighthouses arbitration (footnote [702] 182 above), pp. 219–220.
[1014] 354 UNRIAA, vol. XI (Sales No. 61.V.4), p. 421, at p. 443 (1912).
[1015] 355 Serbian Loans, Judgment No. 14, 1929, P.C.I.J., Series A, No. 20, pp. 39–40; Brazilian Loans,
Judgment No. 15, ibid., No. 21, p. 120.
Article 23 257
New Zealand is right in asserting that the excuse of force majeure is not of relevance in this case because
the test of its applicability is of absolute and material impossibility, and because a circumstance rendering
performance more difficult or burdensome does not constitute a case of force majeure.[1016] 356
(8) In addition to its application in inter-State cases as a matter of public international law,
force majeure has substantial currency in the field of international commercial arbitration,
and may qualify as a general principle of law.[1017] 357
(9) A State may not invoke force majeure if it has caused or induced the situation in question.
In Libyan Arab Foreign Investment Company and The Republic of Burundi, the arbitral
tribunal rejected a plea of force majeure because “the alleged impossibility [was] not the
result of an irresistible force or an unforeseen external event beyond the control of Burundi.
In fact, the impossibility is the result of a unilateral decision of that State … ”[1018]358
Under the equivalent ground for termination of a treaty in article 61 of the 1969 Vienna
Convention, material impossibility cannot be invoked “if the impossibility is the result of
a breach by that party either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty”. By analogy with this provision, paragraph
2 (a) excludes the plea in circumstances where force majeure is due, either alone or in
combination with other factors, to the conduct of the State invoking it. For paragraph 2 (a)
to apply it is not enough that the State invoking force majeure has contributed to the situation
of material impossibility; the situation of force majeure must be “due” to the conduct
of the State invoking it. This allows for force majeure to be invoked in situations in which
a State may have unwittingly contributed to the occurrence of material impossibility by
something which, in hindsight, might have been done differently but which was done in
good faith and did not itself make the event any less unforeseen. Paragraph 2 (a) requires
that the State’s role in the occurrence of force majeure must be substantial.
(10) Paragraph 2 (b) deals with situations in which the State has already accepted the risk
of the occurrence of force majeure, whether it has done so in terms of the obligation itself
or by its conduct or by virtue of some unilateral act. This reflects the principle that force
majeure should not excuse performance if the State has undertaken to prevent the particular
situation arising or has otherwise assumed that risk.[1019] 359 Once a State accepts the
responsibility for a particular risk it cannot then claim force majeure to avoid responsibility.
But the assumption of risk must be unequivocal and directed towards those to whom
the obligation is owed.
[1016] 356 “Rainbow Warrior” (footnote [40] 46 above), p. 253.
[1017] 357 On force majeure in the case law of the Iran-United States Claims Tribunal, see G. H.
Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (Oxford, Clarendon Press, 1996),
pp. 306–320. Force majeure has also been recognized as a general principle of law by the European
Court of Justice: see, e.g., case 145/85, Denkavit v. Belgium, Eur. Court H.R., Reports 1987–2, p. 565; case
101/84, Commission of the European Communities v. Italian Republic, ibid., Reports 1985–6, p. 2629. See
also article 79 of the United Nations Convention on Contracts for the International Sale of Goods; P.
Schlechtriem, ed., Commentary on the UN Convention on the International Sale of Goods, 2nd ed. (trans.
G. Thomas) (Oxford, Clarendon Press, 1998), pp. 600–626; and article 7.1.7 of the UNIDROIT Principles,
Principles of International Commercial Contracts (Rome, Unidroit, 1994), pp. 169–171.
[1018] 358 ILR, vol. 96 (1994), p. 318, para. 55.
[1019] 359 As the study prepared by the Secretariat (footnote [1005] 345 above), para. 31, points out,
States may renounce the right to rely on force majeure by agreement. The most common way of doing so
would be by an agreement or obligation assuming in advance the risk of the particular force majeure event.
258 Article 23
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal
Case concerning the difference between New Zealand and France concerning the interpretation
or application of two agreements concluded on 9 July 1986 between the two States
and which related to the problems arising from the Rainbow Warrior Affair
In its 1990 award in the Rainbow Warrior case, the arbitral tribunal referred to the
text of draft article 31 provisionally adopted by the International Law Commission,[1020] 139
as well as to the commentary thereto, and concluded that France could not invoke the
excuse of force majeure to preclude the wrongfulness of the removal of Major Mafart from
the island of Hao for health reasons, in violation of the agreement between the Parties.
Having quoted paragraph 1 of draft article 31, the tribunal stated the following:
In the light of this provision, there are several reasons for excluding the applicability of the excuse
of force majeure in this case. As pointed out in the report of the International Law Commission,
article 31 refers to “a situation facing the subject taking the action, which leads it, as it were, despite
itself, to act in a manner not in conformity with the requirements of an international obligation
incumbent on it” (Yearbook … 1979, vol. II, p. 122, para. 2, emphasis in the original). Force majeure
is “generally invoked to justify involuntary, or at least unintentional conduct”, it refers “to an irresistible
force or an unforeseen external event against which it has no remedy and which makes it
‘materially impossible’ for it to act in conformity with the obligation”, since “no person is required
to do the impossible” (ibid., p. 123, para. 4).
The report of the International Law Commission insists on the strict meaning of article 31, in the
following terms:
the wording of paragraph 1 emphasizes, by the use of the adjective “irresistible” qualifying the
word “force”, that there must, in the case in point, be a constraint which the State was unable
to avoid or to oppose by its own means … The event must be an act which occurs and produces
its effect without the State being able to do anything which might rectify the event or might
avert its consequences. The adverb “materially” preceding the word “impossible” is intended to
show that, for the purposes of the article, it would not suffice for the “irresistible force” or the
“unforeseen external event” to have made it very difficult for the State to act in conformity with
the obligation … the Commission has sought to emphasize that the State must not have had
any option in that regard (Yearbook … 1979, vol. II, p. 133, para. 40, emphasis in the original).
In conclusion, New Zealand is right in asserting that the excuse of force majeure is not of relevance
in this case because the test of its applicability is of absolute and material impossibility, and because
[1020] 139 The part of this provision concerning force majeure was amended and incorporated in
article 23 finally adopted by the International Law Commission in 2001. Draft article 31 provisionally
adopted read as follows:
Article 31
Force majeure and fortuitous event
1. The wrongfulness of an act of a State not in conformity with an international obligation
of that State is precluded if the act was due to an irresistible force or to an unforeseen external
event beyond its control which made it materially impossible for the State to act in conformity
with that obligation or to know that its conduct was not in conformity with that obligation.
2. Paragraph 1 shall not apply if the State in question has contributed to the occurrence
of the situation of material impossibility. (Yearbook … 1980, vol. II (Part Two), para. 34.)
Article 23 259
a circumstance rendering performance more difficult or burdensome does not constitute a case of
force majeure. Consequently, this excuse is of no relevance in the present case.[1021] 140
[A/62/62, para. 87]
International arbitral tribunal
Libyan Arab Foreign Investment Company (LAFICO) and the Republic of Burundi
In its 1991 award, the arbitral tribunal established to hear the LAFICO-Burundi case
stated that the defence by Burundi according to which it was objectively impossible for
the shareholder, Libyan Arab Foreign Investment company (LAFICO), to continue to
participate in the management of the Libyan Arab Republic-Burundi Holding Company
(HALB)[1022] 141 was to be appraised in light of “certain circumstances precluding wrongfulness
which the International Law Commission has sought to codify in its draft articles on
State responsibility”. The tribunal first referred to the exception of force majeure, and in
this regard quoted in extenso draft article 31 provisionally adopted by the International
Law Commission. The tribunal found that it was “not possible to apply this provision to
the case … because the alleged impossibility [was] not the result of an irresistible force or
an unforeseen external event beyond the control of Burundi”.[1023] 142
[A/62/62, para. 88]
International arbitral tribunal (under the ICSID Convention)
Autopista Concesionada de Venezuela, C.A. (“Aucoven”) v. Bolivarian Republic of Venezuela
In its 2003 award, the arbitral tribunal constituted to hear the Aucoven v. Venezuela
case, in examining whether Venezuela’s failure to increase the toll rates (as provided by
the relevant concession agreement) was excused by the civil unrest existing in the country
in 1997, considered that force majeure was “a valid excuse for the non-performance of a
contractual obligation in both Venezuelan and international law”.[1024] 143 It then referred,
inter alia, to the International Law Commission articles on State responsibility in general
(and implicitly to article 23 finally adopted in 2001) to support its finding that international
law did not impose a standard which would displace the application of Venezuela’s national
law referring to force majeure:
… the Arbitral Tribunal is not satisfied that international law imposes a different standard which
would be called to displace the application of national law. The Tribunal reaches this conclusion
on the basis of a review of the decisions issued under international law to which the parties have
referred (see in particular General Dynamics Telephone Sys. Ctr. v. The Islamic Republic of Iran,
[1021] 140 See footnote [40] 46 above, pp. 252–253.
[1022] 141 In this case, LAFICO had contended that the expulsion from Burundi of Libyan managers
of HALB and one of its subsidiaries, and the prohibition against LAFICO carrying out any activities
in Burundi constituted an infringement by Burundi of its shareholder rights and had prevented HALB
from realizing its objectives (i.e. to invest in companies operating within certain sectors of the Burundi
economy), thereby violating inter alia the 1973 Technical and Economic Cooperation Agreement
between the Libyan Arab Republic and the Republic of Burundi.
[1023] 142 See footnote [824] 127, para. 55 (English version in: International Law Reports, vol. 96, p. 318).
[1024] 143 ICSID, Case No. ARB/00/5, Award, 23 September 2003, para. 108.
260 Article 23
Award No. 192–285–2 (4 Oct. 1985), 9 Iran-U.S. Cl. Trib. Rep. 153, 160, Resp. Auth. 18. See also
Gould Marketing, Inc. v. Ministry of Defense of Iran, Award No. ITL 24–49–2 (27 July 1983), 3 Iran-
US Cl. Trib. Rep. 147, Cl. Auth. 23, and Sylvania Tech. Sys., Inc. v. Iran, Award No. 180–64–1 (27 June
1985), 8 Iran-U.S. Cl. Trib. Rep. 298, Cl. Auth. 32.), as well as on the basis of the draft articles on State
Responsibility of the International Law Commission, and the legal arguments of the parties.[1025] 144
[A/62/62, para. 89]
Sempra Energy International v. Argentine Republic
In its 2007 award, the arbitral tribunal constituted to hear the Sempra Energy International
v. Argentina case, which arose under the 1991 bilateral investment treaty between
the United States and Argentina, was faced with a claim arising out of changes in the
regulatory framework for private investments made in the wake of the economic crisis in
Argentina in the late 1990s. The tribunal was presented, inter alia, with an argument on
the part of the respondent that “the theory of ‘imprévision’ has been incorporated into
Argentine law”, to which the tribunal responded:
Insofar as the theory of ‘imprévision’ is expressed in the concept of force majeure, this other concept
requires, under Article 23 of the Articles on State Responsibility, that the situation involve the
occurrence of an irresistible force, beyond the control of the State, making it materially impossible
under the circumstances to perform the obligation. In the commentary to this article, it is stated that
‘[f]orce majeure does not include circumstances in which performance of an obligation has become
more difficult, for example due to some political or economic crisis’.[1026] 25
[A/65/76, para. 25]
Ad hoc committee (under the ICSID Convention)
Enron Creditors Recovery Corp. and Ponderosa Assets, L.P. v. The Argentine Republic
In Enron Creditors Recovery Corp. and Ponderosa Assets, L.P. v. The Argentine Republic,
the ad hoc committee upheld the arbitral tribunal’s rejection of the applicability of the
principle of “imprevisión” under Argentine law, as well as the tribunal’s comparison with
article 23 of the State responsibility articles, made in support of its decision, to the extent
that “the theory of ‘imprevisión’ is expressed in the concept of force majeure”.[1027] 122
[A/68/72, para. 89]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
referred to articles 12 and 20 to 25, noting that “[t]here is a breach only when the conduct
[1025] 144 Ibid., para. 123.
[1026] 25 ICSID, Case No. ARB/02/16, Award, 28 September 2007, para. 246.
[1027] 122 ICSID, Case No. ARB/01/13, Decision on the Application for Annulment of the Argentine
Republic, 30 July 2010, para. 287.
Article 23 261
of a State is not in conformity with what is required of it by an international obligation,
provided that there are no circumstances precluding the wrongfulness”.[1028] 82
[A/77/74, p. 17]]
International arbitral tribunal (under the ICSID Convention)
(DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar
The arbitral tribunal in (DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic
of Madagascar cited article 23, indicating that “under the law, force majeure occurs when
a wrongful act is due to ‘the occurrence of an irresistible force or of an unforeseen event,
beyond the control of the State, making it materially impossible in the circumstances to
perform the obligation’.”[1029] 108 However, the tribunal concluded that in the facts of the
case, there was nothing to indicate that it had been materially impossible for the State to
perform its obligation.
[A/77/74, p. 21]
[1028] [82 See footnote [126] 14 above, para. 155.]
[1029] 108 ICSID, Case No. ARB/17/18, Award, 17 April 2020, para. 347.
262
Article 24. Distress
1. The wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the author of the act in question has no other
reasonable way, in a situation of distress, of saving the author’s life or the lives of other
persons entrusted to the author’s care.
2. Paragraph 1 does not apply if:
(a) the situation of distress is due, either alone or in combination with other factors,
to the conduct of the State invoking it; or
(b) the act in question is likely to create a comparable or greater peril.
Commentary
(1) Article 24 deals with the specific case where an individual whose acts are attributable
to the State is in a situation of peril, either personally or in relation to persons under his
or her care. The article precludes the wrongfulness of conduct adopted by the State agent
in circumstances where the agent had no other reasonable way of saving life. Unlike situations
of force majeure dealt with in article 23, a person acting under distress is not acting
involuntarily, even though the choice is effectively nullified by the situation of peril.[1030] 360
Nor is it a case of choosing between compliance with international law and other legitimate
interests of the State, such as characterize situations of necessity under article 25. The interest
concerned is the immediate one of saving people’s lives, irrespective of their nationality.
(2) In practice, cases of distress have mostly involved aircraft or ships entering State territory
under stress of weather or following mechanical or navigational failure.[1031] 361 An
example is the entry of United States military aircraft into Yugoslavia’s airspace in 1946. On
two occasions, United States military aircraft entered Yugoslav airspace without authorization
and were attacked by Yugoslav air defences. The United States Government protested
the Yugoslav action on the basis that the aircraft had entered Yugoslav airspace solely in
order to escape extreme danger. The Yugoslav Government responded by denouncing the
systematic violation of its airspace, which it claimed could only be intentional in view of
its frequency. A later note from the Yugoslav chargé d’affaires informed the United States
Department of State that Marshal Tito had forbidden any firing on aircraft which flew over
Yugoslav territory without authorization, presuming that, for its part, the United States
Government “would undertake the steps necessary to prevent these flights, except in the
case of emergency or bad weather, for which arrangements could be made by agreement
between American and Yugoslav authorities”.[1032] 362 The reply of the United States Acting
Secretary of State reiterated the assertion that no United States planes had flown over
Yugoslavia intentionally without prior authorization from Yugoslav authorities “unless
forced to do so in an emergency”. However, the Acting Secretary of State added:
[1030] 360 For this reason, writers who have considered this situation have often defined it as one of
“relative impossibility” of complying with the international obligation. See, e.g., O. J. Lissitzyn, “The treatment
of aerial intruders in recent practice and international law”, AJIL, vol. 47, No. 4 (October 1953), p. 588.
[1031] 361 See the study prepared by the Secretariat (footnote [1005] 345 above), paras. 141–142 and 252.
[1032] 362 United States of America, Department of State Bulletin (footnote [1011] 351 above), reproduced
in the study prepared by the Secretariat (footnote [1005] 345 above), para. 144.
Article 24 263
I presume that the Government of Yugoslavia recognizes that in case a plane and its occupants are
jeopardized, the aircraft may change its course so as to seek safety, even though such action may result
in flying over Yugoslav territory without prior clearance.[1033] 363
(3) Claims of distress have also been made in cases of violation of maritime boundaries.
For example, in December 1975, after British naval vessels entered Icelandic territorial
waters, the British Government claimed that the vessels in question had done so in search
of “shelter from severe weather, as they have the right to do under customary international
law”.[1034] 364 Iceland maintained that British vessels were in its waters for the sole purpose
of provoking an incident, but did not contest the point that if the British vessels had been
in a situation of distress, they could enter Icelandic territorial waters.
(4) Although historically practice has focused on cases involving ships and aircraft, article
24 is not limited to such cases.[1035] 365 The “Rainbow Warrior” arbitration involved a
plea of distress as a circumstance precluding wrongfulness outside the context of ships or
aircraft. France sought to justify its conduct in removing the two officers from the island of
Hao on the ground of “circumstances of distress in a case of extreme urgency involving elementary
humanitarian considerations affecting the acting organs of the State”.[1036] 366 The
tribunal unanimously accepted that this plea was admissible in principle, and by majority
that it was applicable to the facts of one of the two cases. As to the principle, the tribunal
required France to show three things:
(1) The existence of very exceptional circumstances of extreme urgency involving medical or other
considerations of an elementary nature, provided always that a prompt recognition of the existence
of those exceptional circumstances is subsequently obtained from the other interested party or is
clearly demonstrated.
(2) The reestablishment of the original situation of compliance with the assignment in Hao as soon
as the reasons of emergency invoked to justify the repatriation had disappeared.
(3) The existence of a good faith effort to try to obtain the consent of New Zealand in terms of the
1986 Agreement.[1037] 367
In fact the danger to one of the officers, though perhaps not life-threatening, was real and
might have been imminent, and it was not denied by the New Zealand physician who subsequently
examined him. By contrast, in the case of the second officer, the justifications given
(the need for medical examination on grounds of pregnancy and the desire to see a dying
father) did not justify emergency action. The lives of the agent and the child were at no stage
threatened and there were excellent medical facilities nearby. The tribunal held that:
[1033] 363 Study prepared by the Secretariat (footnote [1005] 345 above), para. 145. The same argument
is found in the Memorial of 2 December 1958 submitted by the United States Government to ICJ
in relation to another aerial incident (I.C.J. Pleadings, Aerial Incident of 27 July 1955, pp. 358–359).
[1034] 364 Official Records of the Security Council, Thirtieth Year, 1866th meeting, 16 December 1975,
para. 24; see the study prepared by the Secretariat (footnote [1005] 345 above), para. 136.
[1035] 365 There have also been cases involving the violation of a land frontier in order to save the life
of a person in danger. See, e.g., the case of violation of the Austrian border by Italian soldiers in 1862,
study prepared by the Secretariat (footnote [1005] 345 above), para. 121.
[1036] 366 “Rainbow Warrior” (footnote [40] 46 above), pp. 254–255, para. 78.
[1037] 367 Ibid., p. 255, para. 79.
264 Article 24
[C]learly these circumstances entirely fail to justify France’s responsibility for the removal of Captain
Prieur and from the breach of its obligations resulting from the failure to return the two officers
to Hao (in the case of Major Mafart once the reasons for their removal had disappeared). There was
here a clear breach of its obligations.[1038] 368
(5) The plea of distress is also accepted in many treaties as a circumstance justifying
conduct which would otherwise be wrongful. Article 14, paragraph 3, of the Convention
on the Territorial Sea and the Contiguous Zone permits stopping and anchoring by ships
during their passage through foreign territorial seas insofar as this conduct is rendered
necessary by distress. This provision is repeated in much the same terms in article 18, paragraph
2, of the United Nations Convention on the Law of the Sea.[1039] 369 Similar provisions
appear in the international conventions on the prevention of pollution at sea.[1040] 370
(6) Article 24 is limited to cases where human life is at stake. The tribunal in the “Rainbow
Warrior” arbitration appeared to take a broader view of the circumstances justifying
a plea of distress, apparently accepting that a serious health risk would suffice. The problem
with extending article 24 to less than life-threatening situations is where to place any
lower limit. In situations of distress involving aircraft there will usually be no difficulty in
establishing that there is a threat to life, but other cases present a wide range of possibilities.
Given the context of chapter V and the likelihood that there will be other solutions
available for cases which are not apparently life-threatening, it does not seem necessary
to extend the scope of distress beyond threats to life itself. In situations in which a State
agent is in distress and has to act to save lives, there should however be a certain degree of
flexibility in the assessment of the conditions of distress. The “no other reasonable way”
criterion in article 24 seeks to strike a balance between the desire to provide some flexibility
regarding the choices of action by the agent in saving lives and need to confine the
scope of the plea having regard to its exceptional character.
(7) Distress may only be invoked as a circumstance precluding wrongfulness in cases
where a State agent has acted to save his or her own life or where there exists a special relationship
between the State organ or agent and the persons in danger. It does not extend to
more general cases of emergencies, which are more a matter of necessity than distress.
(8) Article 24 only precludes the wrongfulness of conduct so far as it is necessary to avoid
the life-threatening situation. Thus, it does not exempt the State or its agent from complying
with other requirements (national or international), e.g. the requirement to notify
[1038] 368 Ibid., p. 263, para. 99.
[1039] 369 See also articles 39, paragraph 1 (c), 98 and 109, of the Convention.
[1040] 370 See, e.g., the International Convention for the Prevention of Pollution of the Sea by Oil,
article IV, paragraph 1 (a), of which provides that the prohibition on the discharge of oil into the sea
does not apply if the discharge takes place “for the purpose of securing the safety of the ship, preventing
damage to the ship or cargo, or saving life at sea”. See also the Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter, article V, paragraph 1, of which provides that the
prohibition on dumping of wastes does not apply when it is “necessary to secure the safety of human life
or of vessels, aircraft, platforms or other man-made structures at sea … in any case which constitutes a
danger to human life or a real threat to vessels, aircraft, platforms or other man-made structures at sea,
if dumping appears to be the only way of averting the threat.” See also the Convention for the Prevention
of Marine Pollution by Dumping from Ships and Aircraft (art. 8, para. 1); and the International Convention
for the Prevention of Pollution from Ships, 1973 (MARPOL Convention), annex I, regulation 11 (a).
Article 24 265
arrival to the relevant authorities, or to give relevant information about the voyage, the
passengers or the cargo.[1041] 371
(9) As in the case of force majeure, a situation which has been caused or induced by the
invoking State is not one of distress. In many cases the State invoking distress may well
have contributed, even if indirectly, to the situation. Priority should be given to necessary
life-saving measures, however, and under paragraph 2 (a), distress is only excluded
if the situation of distress is due, either alone or in combination with other factors, to the
conduct of the State invoking it. This is the same formula as that adopted in respect of
article 23, paragraph 2 (a).[1042] 372
(10) Distress can only preclude wrongfulness where the interests sought to be protected
(e.g. the lives of passengers or crew) clearly outweigh the other interests at stake in the circumstances.
If the conduct sought to be excused endangers more lives than it may save or
is otherwise likely to create a greater peril it will not be covered by the plea of distress. For
instance, a military aircraft carrying explosives might cause a disaster by making an emergency
landing, or a nuclear submarine with a serious breakdown might cause radioactive
contamination to a port in which it sought refuge. Paragraph 2 (b) stipulates that distress
does not apply if the act in question is likely to create a comparable or greater peril. This is
consistent with paragraph 1, which in asking whether the agent had “no other reasonable
way” to save life establishes an objective test. The words “comparable or greater peril” must
be assessed in the context of the overall purpose of saving lives.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal
Case concerning the difference between New Zealand and France concerning the interpretation
or application of two agreements concluded on 9 July 1986 between the two States
and which related to the problems arising from the Rainbow Warrior Affair
In its 1990 award in the Rainbow Warrior case, the arbitral tribunal referred to draft
article 32 provisionally adopted by the International Law Commission,[1043] 145 as well as to the
[1041] 371 See Cashin and Lewis v. The King, Canada Law Reports (1935), p. 103 (even if a vessel enters
a port in distress, it is not exempted from the requirement to report on its voyage). See also the “Rebecca”,
Mexico-United States General Claims Commission, AJIL, vol. 23, No. 4 (October 1929), p. 860 (vessel
entered port in distress; merchandise seized for customs offence: held, entry reasonably necessary in
the circumstances and not a mere matter of convenience; seizure therefore unlawful); the “May” v. The
King, Canada Law Reports (1931), p. 374; the “Queen City” v. The King, ibid., p. 387; and Rex v. Flahaut,
Dominion Law Reports (1935), p. 685 (test of “real and irresistible distress” applied).
[1042] 372 See paragraph (9) of the commentary to article 23.
[1043] 145 This provision was amended and incorporated in article 24 finally adopted by the International
Law Commission in 2001. Draft article 32 provisionally adopted read as follows:
Article 32
Distress
1. The wrongfulness of an act of a State not in conformity with an international obligation
of that State is precluded if the author of the conduct which constitutes the act of
266 Article 24
commentary thereto, to determine whether the wrongfulness of France’s behaviour could
be excluded on the basis of distress. The tribunal also clarified, in this context, the difference
between this ground of justification and, first, that of force majeure, and, second, that of state
of necessity, dealt with under draft article 33 provisionally adopted by the Commission:[1044] 146
Article 32 of the articles drafted by the International Law Commission deals with another circumstance
which may preclude wrongfulness in international law, namely, that of the ‘distress’ of the
author of the conduct which constitutes the act of State whose wrongfulness is in question.
…
The commentary of the International Law Commission explains that ‘“distress” means a situation
of extreme peril in which the organ of the State which adopts that conduct has, at that particular
moment, no means of saving himself or persons entrusted to his care other than to act in a manner not
in conformity with the requirements of the obligation in question’ (Yearbook … 1979, p. 133, para. 1).
The report adds that in international practice distress, as a circumstance capable of precluding the
wrongfulness of an otherwise wrongful act of the State, ‘has been invoked and recognized primarily
in cases involving the violation of a frontier of another State, particularly its airspace and its sea—
for example, when the captain of a State vessel in distress seeks refuge from storm in a foreign port
without authorization, or when the pilot of a State aircraft lands without authorization on foreign
soil to avoid an otherwise inevitable disaster’ (ibid., p. 134, para. 4). Yet the Commission found that
‘the ratio of the actual principle suggests that it is applicable, if only by analogy, to other comparable
cases’ (ibid., p. 135, para. 8).
The report points out the difference between this ground for precluding wrongfulness and that of
force majeure: ‘in these circumstances, the State organ admittedly has a choice, even if it is only
between conduct not in conformity with an international obligation and conduct which is in conformity
with the obligation but involves a sacrifice that it is unreasonable to demand’ (Yearbook
… 1979, p. 122, para. 3). But ‘this choice is not a “real choice” or “free choice” as to the decision to be
taken, since the person acting on behalf of the State knows that if he adopts the conduct required by
the international obligation, he, and the persons entrusted to his care, will almost inevitably perish.
In such circumstances, the “possibility” of acting in conformity with the international obligation is
therefore only apparent. In practice it is nullified by the situation of extreme peril which, as we have
just said, characterizes situations of distress’ (Yearbook … 1979, p. 133, para. 2).
The report adds that the situation of distress ‘may at most include a situation of serious danger, but not
necessarily one that jeopardizes the very existence of the person concerned. The protection of something
other than life, particularly where the physical integrity of a person is still involved, may admittedly
represent an interest that is capable of severely restricting an individual’s freedom of decision
and induce him to act in a manner that is justifiable, although not in conformity with an international
obligation of the State’ (Yearbook … 1979, p. 135, para. 10). Thus, this circumstance may also apply to
safeguard other essential rights of human beings such as the physical integrity of a person.
that State had no other means, in a situation of extreme distress, of saving his life or that of
persons entrusted to his care.
2. Paragraph 1 shall not apply if the State in question has contributed to the occurrence
of the situation of extreme distress or if the conduct in question was likely to create a comparable
or greater peril. (Yearbook … 1980, vol. II (Part Two), para. 34.)
[1044] 146 This provision was amended and incorporated in article 25 finally adopted in 2001. The text
of that provision was identical to that of draft article 33 adopted on first reading (see Yearbook … 1996,
vol. II (Part Two), para. 65) and is contained in the passage of the judgement of the ICJ in the Gabčíkovo-
Nagymaros Project case reproduced [on pp. 278–280] below.
Article 24 267
The report also distinguishes with precision the ground of justification of article 32 from the controversial
doctrine of the state of necessity dealt with in article 33. Under article 32, on distress, what is
‘involved is situations of necessity’ with respect to the actual person of the State organs or of persons
entrusted to his care, ‘and not any real “necessity” of the State’.
On the other hand, article 33, which allegedly authorizes a State to take unlawful action invoking a state
of necessity, refers to situations of grave and imminent danger to the State as such and to its vital interests.
This distinction between the two grounds justifies the general acceptance of article 32 and at the
same time the controversial character of the proposal in article 33 on state of necessity.
It has been stated in this connection that there is no general principle allowing the defence of necessity.
There are particular rules of international law making allowance for varying degrees of necessity,
but these cases have a meaning and a scope entirely outside the traditional doctrine of state of
necessity. Thus, for instance, vessels in distress are allowed to seek refuge in a foreign port, even if
it is closed … in the case of famine in a country, a foreign ship proceeding to another port may be
detained and its cargo expropriated … In these cases—in which adequate compensation must be
paid—it is not the doctrine of the state of necessity which provides the foundation of the particular
rules, but humanitarian considerations, which do not apply to the State as a body politic but are
designed to protect essential rights of human beings in a situation of distress. (Manual of Public
International Law, ed. Soerensen, p. 543.)
The question therefore is to determine whether the circumstances of distress in a case of extreme
urgency involving elementary humanitarian considerations affecting the acting organs of the State
may exclude wrongfulness in this case.[1045] 147
The arbitral tribunal then examined France’s behaviour in accordance with these legal
considerations. It concluded that
the circumstances of distress, of extreme urgency and the humanitarian considerations invoked by
France may have been circumstances excluding responsibility for the unilateral removal of Major
Mafart [from the island of Hao] without obtaining New Zealand’s consent [as provided for by the
agreement between the Parties], but clearly these circumstances entirely fail to justify France’s
responsibility for the removal of Captain Prieur and from the breach of its obligations resulting
from the failure to return the two officers to Hao (in the case of Major Mafart once the reasons for
their removal had disappeared).[1046] 148
[A/62/62, para. 90]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
referred to articles 12 and 20 to 25, noting that “[t]here is a breach only when the conduct
of a State is not in conformity with what is required of it by an international obligation,
provided that there are no circumstances precluding the wrongfulness”.[1047] 82
[A/77/74, p. 17]]
[1045] 147 See footnote [40] 46 above.
[1046] 148 Ibid., p. 263, para. 99.
[1047] [82 See footnote [126] 14 above, para. 155.]
268 Article 24
International arbitral tribunal (under the ICSID Convention)
(DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar
In (DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar, the
arbitral tribunal quoted article 24, noting that, in a situation of distress, “the author of a
wrongful act … ‘has no other reasonable way … of saving the author’s life or the lives of
other persons entrusted to the author’s care.’ Again, as already indicated, it is not clear how
inaction by law enforcement could have been the only way to save lives”.[1048] 109
[A/77/74, p. 21]
[1048] 109 [ICSID, Case No. ARB/17/18, Award, 17 April 2020], para. 349.
269
Article 25. Necessity
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness
of an act not in conformity with an international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave
and imminent peril; and
(b) does not seriously impair an essential interest of the State or States towards
which the obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding
wrongfulness if:
(a) the international obligation in question excludes the possibility of invoking
necessity; or
(b) the State has contributed to the situation of necessity.
Commentary
(1) The term “necessity” (état de nécessité) is used to denote those exceptional cases where
the only way a State can safeguard an essential interest threatened by a grave and imminent
peril is, for the time being, not to perform some other international obligation of lesser
weight or urgency. Under conditions narrowly defined in article 25, such a plea is recognized
as a circumstance precluding wrongfulness.
(2) The plea of necessity is exceptional in a number of respects. Unlike consent (art. 20),
self-defence (art. 21) or countermeasures (art. 22), it is not dependent on the prior conduct
of the injured State. Unlike force majeure (art. 23), it does not involve conduct which is
involuntary or coerced. Unlike distress (art. 24), necessity consists not in danger to the
lives of individuals in the charge of a State official but in a grave danger either to the essential
interests of the State or of the international community as a whole. It arises where there
is an irreconcilable conflict between an essential interest on the one hand and an obligation
of the State invoking necessity on the other. These special features mean that necessity will
only rarely be available to excuse non-performance of an obligation and that it is subject to
strict limitations to safeguard against possible abuse.[1049]373
(3) There is substantial authority in support of the existence of necessity as a circumstance
precluding wrongfulness. It has been invoked by States and has been dealt with by
a number of international tribunals. In these cases the plea of necessity has been accepted
in principle, or at least not rejected.
(4) In an Anglo-Portuguese dispute of 1832, the Portuguese Government argued that the
pressing necessity of providing for the subsistence of certain contingents of troops engaged
[1049] 373 Perhaps the classic case of such an abuse was the occupation of Luxembourg and Belgium
by Germany in 1914, which Germany sought to justify on the ground of necessity. See, in particular,
the note presented on 2 August 1914 by the German Minister in Brussels to the Belgian Minister for
Foreign Affairs, in J. B. Scott, ed., Diplomatic Documents relating to the Outbreak of the European War
(New York, Oxford University Press, 1916), part I, pp. 749–750, and the speech in the Reichstag by the
German Chancellor von Bethmann-Hollweg, on 4 August 1914, containing the well-known words: wir
sind jetzt in der Notwehr; und Not kennt kein Gebot! (we are in a state of self-defence and necessity knows
no law), Jahrbuch des Völkerrechts, vol. III (1916), p. 728.
270 Article 25
in quelling internal disturbances had justified its appropriation of property owned by British
subjects, notwithstanding a treaty stipulation. The British Government was advised that:
the Treaties between this Country and Portugal are [not] of so stubborn and unbending a nature, as
to be incapable of modification under any circumstances whatever, or that their stipulations ought
to be so strictly adhered to, as to deprive the Government of Portugal of the right of using those
means, which may be absolutely and indispensably necessary to the safety, and even to the very
existence of the State.
The extent of the necessity, which will justify such an appropriation of the Property of British Subjects,
must depend upon the circumstances of the particular case, but it must be imminent and urgent.[1050] 374
(5) The “Caroline” incident of 1837, though frequently referred to as an instance of selfdefence,
really involved the plea of necessity at a time when the law concerning the use of
force had a quite different basis than it has at present. In that case, British armed forces
entered United States territory and attacked and destroyed a vessel owned by United States
citizens which was carrying recruits and military and other material to Canadian insurgents.
In response to the protests by the United States, the British Minister in Washington,
Fox, referred to the “necessity of self-defence and self-preservation”; the same point was
made by counsel consulted by the British Government, who stated that “the conduct of
the British Authorities” was justified because it was “absolutely necessary as a measure
of precaution”.[1051]375 Secretary of State Webster replied to Minister Fox that “nothing less
than a clear and absolute necessity can afford ground of justification” for the commission
“of hostile acts within the territory of a Power at Peace”, and observed that the British
Government must prove that the action of its forces had really been caused by “a necessity
of self-defence, instant, overwhelming, leaving no choice of means, and no moment
for deliberation”.[1052] 376 In his message to Congress of 7 December 1841, President Tyler
reiterated that:
This Government can never concede to any foreign Government the power, except in a case of the
most urgent and extreme necessity, of invading its territory, either to arrest the persons or destroy
the property of those who may have violated the municipal laws of such foreign Government.”[1053] 377
The incident was not closed until 1842, with an exchange of letters in which the two Governments
agreed that “a strong overpowering necessity may arise when this great principle
may and must be suspended”. “It must be so”, added Lord Ashburton, the British Government’s
ad hoc envoy to Washington, “for the shortest possible period during the continuance
of an admitted overruling necessity, and strictly confined within the narrowest limits
imposed by that necessity.”[1054] 378
[1050] 374 Lord McNair, ed., International Law Opinions (Cambridge University Press, 1956), vol. II,
Peace, p. 232.
[1051] 375 See respectively W. R. Manning, ed., Diplomatic Correspondence of the United States: Canadian
Relations 1784–1860 (Washington, D. C., Carnegie Endowment for International Peace, 1943), vol. III,
p. 422; and Lord McNair, ed., International Law Opinions (footnote [1050] 374 above), p. 221, at p. 228.
[1052] 376 British and Foreign State Papers, 1840–1841 (London, Ridgway, 1857), vol. 29, p. 1129.
[1053] 377 Ibid., 1841–1842, vol. 30, p. 194.
[1054] 378 Ibid., p. 195. See Secretary of State Webster’s reply on page 201.
Article 25 271
(6) In the Russian Fur Seals controversy of 1893, the “essential interest” to be safeguarded
against a “grave and imminent peril” was the natural environment in an area not subject to
the jurisdiction of any State or to any international regulation. Facing the danger of extermination
of a fur seal population by unrestricted hunting, the Russian Government issued
a decree prohibiting sealing in an area of the high seas. In a letter to the British Ambassador
dated 12 February (24 February) 1893, the Russian Minister for Foreign Affairs explained
that the action had been taken because of the “absolute necessity of immediate provisional
measures” in view of the imminence of the hunting season. He “emphasize[d] the essentially
precautionary character of the above-mentioned measures, which were taken under
the pressure of exceptional circumstances”[1055] 379 and declared his willingness to conclude
an agreement with the British Government with a view to a longer-term settlement of the
question of sealing in the area.
(7) In the Russian Indemnity case, the Government of the Ottoman Empire, to justify its
delay in paying its debt to the Russian Government, invoked among other reasons the fact
that it had been in an extremely difficult financial situation, which it described as “ force
majeure” but which was more like a state of necessity. The arbitral tribunal accepted the
plea in principle:
The exception of force majeure, invoked in the first place, is arguable in international public law,
as well as in private law; international law must adapt itself to political exigencies. The Imperial
Russian Government expressly admits … that the obligation for a State to execute treaties may be
weakened “if the very existence of the State is endangered, if observation of the international duty
is … self-destructive”.[1056] 380
It considered, however, that:
It would be a manifest exaggeration to admit that the payment (or the contracting of a loan for the
payment) of the relatively small sum of 6 million francs due to the Russian claimants would have
imperilled the existence of the Ottoman Empire or seriously endangered its internal or external
situation.[1057] 381
In its view, compliance with an international obligation must be “self-destructive” for the
wrongfulness of the conduct not in conformity with the obligation to be precluded.[1058] 382
(8) In Société commerciale de Belgique,[1059] 383 the Greek Government owed money to a
Belgian company under two arbitral awards. Belgium applied to PCIJ for a declaration
that the Greek Government, in refusing to carry out the awards, was in breach of its inter-
[1055] 379 Ibid., 1893–1894 (London, H. M. Stationery Office, 1899), vol. 86, p. 220; and the study
prepared by the Secretariat (footnote [1005] 345 above), para. 155.
[1056] 380 See footnote [1014] 354 above; see also the study prepared by the Secretariat (footnote
[1005] 345 above), para. 394.
[1057] 381 Ibid.
[1058] 382 A case in which the parties to the dispute agreed that very serious financial difficulties
could justify a different mode of discharging the obligation other than that originally provided for arose
in connection with the enforcement of the arbitral award in Forests of Central Rhodopia, UNRIAA,
vol. III (Sales No. 1949.V.2), p. 1405 (1933); see League of Nations, Official Journal, 15th Year, No. 11
(part I) (November 1934), p. 1432.
[1059] 383 Société commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 160.
272 Article 25
national obligations. The Greek Government pleaded the country’s serious budgetary and
monetary situation.[1060] 384 The Court noted that it was not within its mandate to declare
whether the Greek Government was justified in not executing the arbitral awards. However,
the Court implicitly accepted the basic principle, on which the two parties were in
agreement.[1061] 385
(9) In March 1967 the Liberian oil tanker Torrey Canyon went aground on submerged
rocks off the coast of Cornwall outside British territorial waters, spilling large amounts
of oil which threatened the English coastline. After various remedial attempts had failed,
the British Government decided to bomb the ship to burn the remaining oil. This operation
was carried out successfully. The British Government did not advance any legal justification
for its conduct, but stressed the existence of a situation of extreme danger and
claimed that the decision to bomb the ship had been taken only after all other means had
failed.[1062] 386 No international protest resulted. A convention was subsequently concluded
to cover future cases where intervention might prove necessary to avert serious oil pollution.[
1063] 387
(10) In the “Rainbow Warrior” arbitration, the arbitral tribunal expressed doubt as to the
existence of the excuse of necessity. It noted that the Commission’s draft article “allegedly
authorizes a State to take unlawful action invoking a state of necessity” and described the
Commission’s proposal as “controversial”.[1064] 388
(11) By contrast, in the Gabčíkovo-Nagymaros Project case, ICJ carefully considered an
argument based on the Commission’s draft article (now article 25), expressly accepting the
principle while at the same time rejecting its invocation in the circumstances of that case.
As to the principle itself, the Court noted that the parties had both relied on the Commission’s
draft article as an appropriate formulation, and continued:
The Court considers … that the state of necessity is a ground recognized by customary international
law for precluding the wrongfulness of an act not in conformity with an international obligation.
It observes moreover that such ground for precluding wrongfulness can only be accepted on an
exceptional basis. The International Law Commission was of the same opinion when it explained
that it had opted for a negative form of words …
[1060] 384 P.C.I.J., Series C, No. 87, pp. 141 and 190; study prepared by the Secretariat (footnote [1005] 345
above), para. 278. See generally paragraphs 276–287 for the Greek arguments relative to the state of necessity.
[1061] 385 See footnote [1059] 383 above; and the study prepared by the Secretariat (footnote [1005] 345
above), para. 288. See also the Serbian Loans case, where the positions of the parties and the Court on the
point were very similar (footnote [1015] 355 above); the French Company of Venezuelan Railroads case
(footnote [692] 178 above) p. 353; and the study prepared by the Secretariat (footnote [1005] 345 above),
paras. 263–268 and 385–386. In his separate opinion in the Oscar Chinn case, Judge Anzilotti accepted
the principle that “necessity may excuse the non-observance of international obligations”, but denied its
applicability on the facts (Judgment, 1934, P.C.I.J., Series A/B, No. 63, p. 65, at pp. 112–114).
[1062] 386 The “Torrey Canyon”, Cmnd. 3246 (London, H. M. Stationery Office, 1967).
[1063] 387 International Convention relating to Intervention on the High Seas in Cases of Oil Pollution
Casualties.
[1064] 388 “Rainbow Warrior” (footnote [40] 46 above), p. 254. In Libyan Arab Foreign Investment
Company and The Republic of Burundi (footnote [1018] 358 above), p. 319, the tribunal declined to comment
on the appropriateness of codifying the doctrine of necessity, noting that the measures taken by
Burundi did not appear to have been the only means of safeguarding an essential interest “against a
grave and imminent peril”.
Article 25 273
Thus, according to the Commission, the state of necessity can only be invoked under certain strictly
defined conditions which must be cumulatively satisfied; and the State concerned is not the sole
judge of whether those conditions have been met.
… In the present case, the following basic conditions … are relevant: it must have been occasioned
by an “essential interest” of the State which is the author of the act conflicting with one of its international
obligations; that interest must have been threatened by a “grave and imminent peril”; the act
being challenged must have been the “only means” of safeguarding that interest; that act must not
have “seriously impair[ed] an essential interest” of the State towards which the obligation existed;
and the State which is the author of that act must not have “contributed to the occurrence of the state
of necessity”. Those conditions reflect customary international law. [1065] 389
(12) The plea of necessity was apparently an issue in the Fisheries Jurisdiction case.[1066] 390
Regulatory measures taken to conserve straddling stocks had been taken by the Northwest
Atlantic Fisheries Organization (NAFO) but had, in Canada’s opinion, proved ineffective
for various reasons. By the Coastal Fisheries Protection Act 1994, Canada declared that
the straddling stocks of the Grand Banks were “threatened with extinction”, and asserted
that the purpose of the Act and regulations was “to enable Canada to take urgent action
necessary to prevent further destruction of those stocks and to permit their rebuilding”.
Canadian officials subsequently boarded and seized a Spanish fishing ship, the Estai, on the
high seas, leading to a conflict with the European Union and with Spain. The Spanish Government
denied that the arrest could be justified by concerns as to conservation “since it
violates the established provisions of the NAFO Convention [Convention on Future Multilateral
Cooperation in the Northwest Atlantic Fisheries] to which Canada is a party”.[1067] 391
Canada disagreed, asserting that “the arrest of the Estai was necessary in order to put a
stop to the overfishing of Greenland halibut by Spanish fishermen”.[1068] 392 The Court held
that it had no jurisdiction over the case.[1069] 393
(13) The existence and limits of a plea of necessity have given rise to a long-standing controversy
among writers. It was for the most part explicitly accepted by the early writers,
[1065] 389 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), pp. 40–41, paras. 51–52.
[1066] 390 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports
1998, p. 432.
[1067] 391 Ibid., p. 443, para. 20. For the European Community protest of 10 March 1995, asserting
that the arrest “cannot be justified by any means”, see Memorial of Spain (Jurisdiction of the Court),
I.C.J. Pleadings, Fisheries Jurisdiction (Spain v. Canada), p. 17, at p. 38, para. 15.
[1068] 392 Fisheries Jurisdiction (footnote [1066] 390 above), p. 443, para. 20. See also the Canadian
Counter-Memorial (29 February 1996), I.C.J. Pleadings (footnote [1067] 391 above), paras. 17–45.
[1069] 393 By an Agreed Minute between Canada and the European Community, Canada undertook
to repeal the regulations applying the 1994 Act to Spanish and Portuguese vessels in the NAFO area and
to release the Estai. The parties expressly maintained “their respective positions on the conformity of the
amendment of 25 May 1994 to Canada’s Coastal Fisheries Protection Act, and subsequent regulations,
with customary international law and the NAFO Convention” and reserved “their ability to preserve and
defend their rights in conformity with international law”. See Canada-European Community: Agreed
Minute on the Conservation and Management of Fish Stocks (Brussels, 20 April 1995), ILM, vol. 34,
No. 5 (September 1995), p. 1260. See also the Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.
274 Article 25
subject to strict conditions.[1070] 394 In the nineteenth century, abuses of necessity associated
with the idea of “fundamental rights of States” led to a reaction against the doctrine. During
the twentieth century, the number of writers opposed to the concept of state of necessity
in international law increased, but the balance of doctrine has continued to favour the
existence of the plea.[1071] 395
(14) On balance, State practice and judicial decisions support the view that necessity may
constitute a circumstance precluding wrongfulness under certain very limited conditions,
and this view is embodied in article 25. The cases show that necessity has been invoked
to preclude the wrongfulness of acts contrary to a broad range of obligations, whether
customary or conventional in origin.[1072] 396 It has been invoked to protect a wide variety
of interests, including safeguarding the environment, preserving the very existence
of the State and its people in time of public emergency, or ensuring the safety of a civilian
population. But stringent conditions are imposed before any such plea is allowed. This is
reflected in article 25. In particular, to emphasize the exceptional nature of necessity and
concerns about its possible abuse, article 25 is cast in negative language (“Necessity may
not be invoked … unless”).[1073] 397 In this respect it mirrors the language of article 62 of the
1969 Vienna Convention dealing with fundamental change of circumstances. It also mirrors
that language in establishing, in paragraph 1, two conditions without which necessity
may not be invoked and excluding, in paragraph 2, two situations entirely from the scope
of the excuse of necessity.[1074] 398
(15) The first condition, set out in paragraph 1 (a), is that necessity may only be invoked
to safeguard an essential interest from a grave and imminent peril. The extent to which a
given interest is “essential” depends on all the circumstances, and cannot be prejudged.
It extends to particular interests of the State and its people, as well as of the international
community as a whole. Whatever the interest may be, however, it is only when it is threatened
by a grave and imminent peril that this condition is satisfied. The peril has to be
objectively established and not merely apprehended as possible. In addition to being grave,
[1070] 394 See B. Ayala, De jure et officiis bellicis et disciplina militari, libri tres (1582) (Washington,
D. C., Carnegie Institution, 1912), vol. II, p. 135; A. Gentili, De iure belli, libri tres (1612) (Oxford, Clarendon
Press, 1933), vol. II, p. 351; H. Grotius, De jure belli ac pacis, libri tres (1646) (Oxford, Clarendon
Press, 1925), vol. II, pp. 193 et seq.; S. Pufendorf, De jure naturae et gentium, libri octo (1688) (Oxford,
Clarendon Press, 1934), vol. II, pp. 295–296; C. Wolff, Jus gentium methodo scientifica pertractatum
(1764) (Oxford, Clarendon Press, 1934), pp. 173–174; and E. de Vattel, The Law of Nations or the Principles
of Natural Law (1758) (Washington, D. C., Carnegie Institution, 1916), vol. III, p. 149.
[1071] 395 For a review of the earlier doctrine, see Yearbook … 1980, vol. II (Part Two), pp. 47–49; see
also P. A. Pillitu, Lo stato di necessità nel diritto internazionale (University of Perugia/Editrice Licosa,
1981); J. Barboza, “Necessity (revisited) in international law”, Essays in International Law in Honour of
Judge Manfred Lachs, J. Makarczyk, ed. (The Hague, Martinus Nijhoff, 1984), p. 27; and R. Boed, “State
of necessity as a justification for internationally wrongful conduct”, Yale Human Rights and Development
Law Journal, vol. 3 (2000), p. 1.
[1072] 396 Generally on the irrelevance of the source of the obligation breached, see article 12 and
commentary.
[1073] 397 This negative formulation was referred to by ICJ in the Gabčíkovo-Nagymaros Project case
(footnote [31] 37 above), p. 40, para. 51.
[1074] 398 A further exclusion, common to all the circumstances precluding wrongfulness, concerns
peremptory norms (see article 26 and commentary).
Article 25 275
the peril has to be imminent in the sense of proximate. However, as the Court in the
Gabčíkovo-Nagymaros Project case said:
That does not exclude … that a “peril” appearing in the long term might be held to be “imminent”
as soon as it is established, at the relevant point in time, that the realization of that peril, however
far off it might be, is not thereby any less certain and inevitable.[1075] 399
Moreover, the course of action taken must be the “only way” available to safeguard that
interest. The plea is excluded if there are other (otherwise lawful) means available, even
if they may be more costly or less convenient. Thus, in the Gabčíkovo-Nagymaros Project
case, the Court was not convinced that the unilateral suspension and abandonment of
the Project was the only course open in the circumstances, having regard in particular
to the amount of work already done and the money expended on it, and the possibility
of remedying any problems by other means.[1076] 400 The word “ways” in paragraph 1 (a) is
not limited to unilateral action but may also comprise other forms of conduct available
through cooperative action with other States or through international organizations (for
example, conservation measures for a fishery taken through the competent regional fisheries
agency). Moreover, the requirement of necessity is inherent in the plea: any conduct
going beyond what is strictly necessary for the purpose will not be covered.
(16) It is not sufficient for the purposes of paragraph 1 (a) that the peril is merely apprehended
or contingent. It is true that in questions relating, for example, to conservation and
the environment or to the safety of large structures, there will often be issues of scientific
uncertainty and different views may be taken by informed experts on whether there is a
peril, how grave or imminent it is and whether the means proposed are the only ones available
in the circumstances. By definition, in cases of necessity the peril will not yet have
occurred. In the Gabčíkovo-Nagymaros Project case the Court noted that the invoking
State could not be the sole judge of the necessity,[1077] 401 but a measure of uncertainty about
the future does not necessarily disqualify a State from invoking necessity, if the peril is
clearly established on the basis of the evidence reasonably available at the time.
(17) The second condition for invoking necessity, set out in paragraph 1 (b), is that the
conduct in question must not seriously impair an essential interest of the other State or
States concerned, or of the international community as a whole (see paragraph (18) below).
In other words, the interest relied on must outweigh all other considerations, not merely
from the point of view of the acting State but on a reasonable assessment of the competing
interests, whether these are individual or collective.[1078] 402
(18) As a matter of terminology, it is sufficient to use the phrase “international community
as a whole” rather than “international community of States as a whole”, which is used in
the specific context of article 53 of the 1969 Vienna Convention. The insertion of the words
“of States” in article 53 of the Convention was intended to stress the paramountcy that
States have over the making of international law, including especially the establishment of
[1075] 399 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 42, para. 54.
[1076] 400 Ibid., pp. 42–43, para. 55.
[1077] 401 Ibid., p. 40, para. 51.
[1078] 402 In the Gabčíkovo-Nagymaros Project case ICJ affirmed the need to take into account any
countervailing interest of the other State concerned (footnote [31] 37 above), p. 46, para. 58.
276 Article 25
norms of a peremptory character. On the other hand, ICJ used the phrase “international
community as a whole” in the Barcelona Traction case,[1079] 403 and it is frequently used in
treaties and other international instruments in the same sense as in paragraph 1(b).[1080] 404
(19) Over and above the conditions in paragraph 1, paragraph 2 lays down two general limits
to any invocation of necessity. This is made clear by the use of the words “in any case”.
Paragraph 2 (a) concerns cases where the international obligation in question explicitly or
implicitly excludes reliance on necessity. Thus, certain humanitarian conventions applicable
to armed conflict expressly exclude reliance on military necessity. Others while not
explicitly excluding necessity are intended to apply in abnormal situations of peril for the
responsible State and plainly engage its essential interests. In such a case the non-availability
of the plea of necessity emerges clearly from the object and the purpose of the rule.
(20) According to paragraph 2 (b), necessity may not be relied on if the responsible State
has contributed to the situation of necessity. Thus in the Gabčíkovo-Nagymaros Project
case, ICJ considered that because Hungary had “helped, by act or omission to bring about”
the situation of alleged necessity, it could not then rely on that situation as a circumstance
precluding wrongfulness.[1081] 405 For a plea of necessity to be precluded under paragraph 2
(b), the contribution to the situation of necessity must be sufficiently substantial and not
merely incidental or peripheral. Paragraph 2 (b) is phrased in more categorical terms than
articles 23, paragraph 2 (a), and 24, paragraph 2 (a), because necessity needs to be more
narrowly confined.
(21) As embodied in article 25, the plea of necessity is not intended to cover conduct which
is in principle regulated by the primary obligations. This has a particular importance in
relation to the rules relating to the use of force in international relations and to the question
of “military necessity”. It is true that in a few cases, the plea of necessity has been
invoked to excuse military action abroad, in particular in the context of claims to humanitarian
intervention.[1082] 406 The question whether measures of forcible humanitarian intervention,
not sanctioned pursuant to Chapters VII or VIII of the Charter of the United
Nations, may be lawful under modern international law is not covered by article 25.[1083] 407
[1079] 403 Barcelona Traction (footnote [46] 52 above), p. 32, para. 33.
[1080] 404 See, e.g., third preambular paragraph of the Convention on the Prevention and Punishment
of Crimes against Internationally Protected Persons, including Diplomatic Agents; fourth preambular
paragraph of the International Convention Against the Taking of Hostages,; fifth preambular paragraph
of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; third
preambular paragraph of the Convention on the Safety of United Nations and Associated Personnel;
tenth preambular paragraph of the International Convention for the Suppression of Terrorist Bombings;
ninth preambular paragraph of the Rome Statute of the International Criminal Court; and ninth preambular
paragraph of the International Convention for the Suppression of the Financing of Terrorism.
[1081] 405 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 46, para. 57.
[1082] 406 For example, in 1960 Belgium invoked necessity to justify its military intervention in the
Congo. The matter was discussed in the Security Council but not in terms of the plea of necessity as such.
See Official Records of the Security Council, Fifteenth Year, 873rd meeting, 13–14 July 1960, paras. 144,
182 and 192; 877th meeting, 20–21 July 1960, paras. 31 et seq. and para. 142; 878th meeting, 21 July
1960, paras. 23 and 65; 879th meeting, 21–22 July 1960, paras. 80 et seq. and paras. 118 and 151. For the
“Caroline” incident, see above, paragraph (5).
[1083] 407 See also article 26 and commentary for the general exclusion of the scope of circumstances
precluding wrongfulness of conduct in breach of a peremptory norm.
Article 25 277
The same thing is true of the doctrine of “military necessity” which is, in the first place,
the underlying criterion for a series of substantive rules of the law of war and neutrality, as
well as being included in terms in a number of treaty provisions in the field of international
humanitarian law.[1084] 408 In both respects, while considerations akin to those underlying
article 25 may have a role, they are taken into account in the context of the formulation
and interpretation of the primary obligations.[1085] 409
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal
Libyan Arab Foreign Investment Company (LAFICO) and the Republic of Burundi
In its 1991 award, the arbitral tribunal established to hear the LAFICO-Burundi case
stated that the defence by Burundi according to which it was objectively impossible for the
shareholder LAFICO to continue to participate in the management of the Libyan Arab
Republic-Burundi Holding Company (HALB)[1086] 149 was to be appraised in light of “certain
circumstances precluding wrongfulness which the International Law Commission
has sought to codify in its draft articles on State responsibility”.[1087] 150 The tribunal, after
excluding the exception of force majeure, then considered “whether it [was] possible to
apply the notion of ‘state of necessity’ elaborated in article 33 of the draft articles”, as provisionally
adopted by the International Law Commission. After having quoted in extenso
the said provision, the tribunal stated:
It is not desired here to express a view on the appropriateness of seeking to codify rules on “state of
necessity” and the adequacy of the concrete proposals made by the International Law Commission,
which has been a matter of debate in the doctrine.[1088] 151
[1084] 408 See, e.g., article 23 (g) of the Regulations respecting the Laws and Customs of War on
Land (annexed to the Hague Conventions II of 1899 and IV of 1907), which prohibits the destruction of
enemy property “unless such destruction or seizure be imperatively demanded by the necessities of war”.
Similarly, article 54, paragraph 5, of the Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the protection of victims of international armed conflicts (Protocol I), appears to
permit attacks on objects indispensable to the survival of the civilian population if “imperative military
necessity” so requires.
[1085] 409 See, e.g., M. Huber, “Die Kriegsrechtlichen Verträge und die Kriegsraison”, Zeitschrift für
Völkerrecht, vol. VII (1913), p. 351; D. Anzilotti, Corso di diritto internazionale (Rome, Athenaeum,
1915), vol. III, p. 207; C. De Visscher, “Les lois de la guerre et la théorie de la nécessité”, RGDIP, vol. 24
(1917), p. 74; N. C. H. Dunbar, “Military necessity in war crimes trials”, BYBIL, 1952, vol. 29, p. 442; C.
Greenwood, “Historical development and legal basis”, The Handbook of Humanitarian Law in Armed
Conflicts, D. Fleck, ed. (Oxford University Press, 1995), p. 1, at pp. 30–33; and Y. Dinstein, “Military
necessity”, Encyclopedia of Public International Law, R. Bernhardt, ed. (Amsterdam, Elsevier, 1997),
vol. 3, pp. 395–397.
[1086] 149 See footnote [1023] 142 above.
[1087] 150 See footnote [824] 127 above, para. 55.
[1088] 151 Ibid., p. 319, para. 56.
278 Article 25
The tribunal found that “the various measures taken by [Burundi] against the rights of
the shareholder LAFICO [did] not appear to the Tribunal to have been the only means of
safeguarding an essential interest of Burundi against a grave and imminent peril”.[1089] 152
[A/62/62, para. 91]
International Court of Justice
Gabčíkovo-Nagymaros Project (Hungary/Slovakia)
In its 1997 judgment in the Gabčíkovo-Nagymaros Project case, the Court examined
“the question of whether there was, in 1989, a state of necessity which would have permitted
Hungary, without incurring international responsibility, to suspend and abandon
works that it was committed to perform in accordance with the 1977 Treaty and related
instruments”.[1090] 153 In this respect, relying on draft article 33 (State of necessity) as adopted
by the International Law Commission on first reading, which it quoted, it considered
that “the state of necessity is a ground recognized by customary international law for precluding
the wrongfulness of an act not in conformity with an international obligation”:
50. In the present case, the Parties are in agreement in considering that the existence of a state of
necessity must be evaluated in the light of the criteria laid down by the International Law Commission
in article 33 of the draft articles on the international responsibility of States that it adopted on
first reading. That provision is worded as follows:
Article 33. State of necessity
1. A state of necessity may not be invoked by a State as a ground for precluding the wrongfulness
of an act of that State not in conformity with an international obligation of the State
unless:
(a) the act was the only means of safeguarding an essential interest of the State against a grave
and imminent peril; and
(b) the act did not seriously impair an essential interest of the State towards which the obligation
existed.
2. In any case, a state of necessity may not be invoked by a State as a ground for precluding
wrongfulness:
(a) if the international obligation with which the act of the State is not in conformity arises
out of a peremptory norm of general international law; or
(b) if the international obligation with which the act of the State is not in conformity is laid
down by a treaty which, explicitly or implicitly, excludes the possibility of invoking the state
of necessity with respect to that obligation; or
(c) if the State in question has contributed to the occurrence of the state of necessity. (Yearbook
of the International Law Commission, 1980, vol. II, Part Two, p. 34.)
[1089] 152 Ibid.
[1090] 153 ICJ, Judgment, I.C.J. Reports 1997, p. 39, para. 49.
Article 25 279
In its Commentary, the Commission defined the ‘state of necessity’ as being
‘the situation of a State whose sole means of safeguarding an essential interest threatened by a
grave and imminent peril is to adopt conduct not in conformity with what is required of it by
an international obligation to another State’ (ibid., para. 1).
It concluded that ‘the notion of state of necessity is … deeply rooted in general legal thinking’ (ibid.,
p. 49, para. 31).
51. The Court considers, first of all, that the state of necessity is a ground recognized by customary
international law for precluding the wrongfulness of an act not in conformity with an international
obligation. It observes moreover that such ground for precluding wrongfulness can only be
accepted on an exceptional basis. The International Law Commission was of the same opinion when
it explained that it had opted for a negative form of words in article 33 of its draft
‘in order to show, by this formal means also, that the case of invocation of a state of necessity
as a justification must be considered as really constituting an exception—and one even
more rarely admissible than is the case with the other circumstances precluding wrongfulness
… ’ (ibid., p. 51, para. 40).
Thus, according to the Commission, the state of necessity can only be invoked under certain strictly
defined conditions which must be cumulatively satisfied; and the State concerned is not the sole
judge of whether those conditions have been met.[1091] 154
The Court later referred to the commentary by the International Law Commission when
examining the meaning given to some terms used in the said draft provision. With regard
to the expression “essential interest”, the Court noted:
The Commission, in its Commentary, indicated that one should not, in that context, reduce an
‘essential interest’ to a matter only of the ‘existence’ of the State, and that the whole question was,
ultimately, to be judged in the light of the particular case (see Yearbook of the International Law
Commission, 1980, vol. II, Part Two, p. 49, para. 32); at the same time, it included among the situations
that could occasion a state of necessity, ‘a grave danger to … the ecological preservation of
all or some of [the] territory [of a State]’ (ibid., p. 35, para. 3); and specified, with reference to State
practice, that ‘It is primarily in the last two decades that safeguarding the ecological balance has
come to be considered an “essential interest” of all States.’ (ibid., p. 39, para. 14).[1092] 155
With regard to the terms “grave and imminent peril”, the Court stated that:
As the International Law Commission emphasized in its commentary, the ‘extremely grave and
imminent’ peril must ‘have been a threat to the interest at the actual time’ (Yearbook of the International
Law Commission, 1980, vol. II, Part Two, p. 49, para. 33). That does not exclude, in the view
of the Court, that a ‘peril’ appearing in the long term might be held to be ‘imminent’ as soon as it is
established, at the relevant point in time, that the realization of that peril, however far off it might
be, is not thereby any less certain and inevitable.[1093] 156
In its conclusion on the issue of the existence of a “state of necessity”, the Court referred
again to the commentary of the International Law Commission:
[1091] 154 Ibid., pp. 39–40, paras. 50–51.
[1092] 155 Ibid., p. 41, para. 53.
[1093] 156 Ibid., p. 42, para. 54.
280 Article 25
The Court concludes from the foregoing that, with respect to both Nagymaros and Gabcíkovo, the
perils invoked by Hungary, without prejudging their possible gravity, were not sufficiently established
in 1989, nor were they ‘imminent’; and that Hungary had available to it at that time means
of responding to these perceived perils other than the suspension and abandonment of works with
which it had been entrusted. What is more, negotiations were under way which might have led to
a review of the Project and the extension of some of its time-limits, without there being need to
abandon it. The Court infers from this that the respect by Hungary, in 1989, of its obligations under
the terms of the 1977 Treaty would not have resulted in a situation ‘characterized so aptly by the
maxim summum jus summa injuria’ (Yearbook of the International Law Commission, 1980, vol. II,
Part Two, p. 49, para. 31).[1094] 157
[A/62/62, para. 92]
International Tribunal for the Law of the Sea
The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea)
In its 1999 judgment in the M/V “SAIGA” (No. 2) case, the Tribunal referred to draft
article 33 adopted by the International Law Commission on first reading, as well as to the
earlier judgment of the International Court of Justice in the Gabčíkovo-Nagymaros Project
case,[1095] 158 to identify the conditions for the defence based on the “state of necessity” under
customary international law. In the context of its examination of the issue whether the
otherwise wrongful application by Guinea of its customs laws to the exclusive economic
zone could be justified under general international law by Guinea’s appeal to “state of
necessity”,[1096] 159 the Tribunal stated the following:
133. In the Case Concerning the Gabčíkovo-Nagymaros Project (Gabčíkovo-Nagymaros Project (Hungary/
Slovakia), Judgment, I.C.J. Reports 1997, pp. 40 and 41, paras. 51 and 52), the International Court
of Justice noted with approval two conditions for the defence based on ‘state of necessity’ which in
general international law justifies an otherwise wrongful act. These conditions, as set out in article 33,
paragraph 1, of the International Law Commission’s draft articles on State responsibility, are:
(a) the act was the only means of safeguarding an essential interest of the State against a grave
and imminent peril; and
(b) the act did not seriously impair an essential interest of the State towards which the obligation
existed.
134. In endorsing these conditions, the Court stated that they ‘must be cumulatively satisfied’ and
that they ‘reflect customary international law’.[1097] 160
[A/62/62, para. 93]
International Court of Justice
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
In its 2004 advisory opinion on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, the Court reaffirmed its earlier finding in the
[1094] 157 Ibid., p. 45, para. 57.
[1095] 158 See above [pp. 278–280].
[1096] 159 ITLOS, Judgment, ITLOS Reports, p. 65, para. 170 (1999), para. 132.
[1097] 160 Ibid., paras. 133–134.
Article 25 281
Gabčíkovo-Nagymaros Project case on the state of necessity (see [pages 278–280] above),
by reference to article 25 finally adopted by the International Law Commission in 2001:
The Court has … considered whether Israel could rely on a state of necessity which would preclude
the wrongfulness of the construction of the wall. In this regard the Court is bound to note that some
of the conventions at issue in the present instance [i.e. conventions on international humanitarian
law and human rights law] include qualifying clauses of the rights guaranteed or provisions for
derogation … Since those treaties already address considerations of this kind within their own provisions,
it might be asked whether a state of necessity as recognized in customary international law
could be invoked with regard to those treaties as a ground for precluding the wrongfulness of the
measures or decisions being challenged. However, the Court will not need to consider that question.
As the Court observed in the case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia),
“the state of necessity is a ground recognized by customary international law” that “can only be
accepted on an exceptional basis”; it “can only be invoked under certain strictly defined conditions
which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those
conditions have been met” (I.C.J. Reports 1997, p. 40, para. 51). One of those conditions was stated
by the Court in terms used by the International Law Commission, in a text which in its present form
requires that the act being challenged be “the only way for the State to safeguard an essential interest
against a grave and imminent peril” (article 25 of the International Law Commission’s articles
on responsibility of States for internationally wrongful acts; see also former article 33 of the draft
articles on the international responsibility of States, with slightly different wording in the English
text). In the light of the material before it, the Court is not convinced that the construction of the
wall along the route chosen was the only means to safeguard the interests of Israel against the peril
which it has invoked as justification for that construction.[1098] 161
[A/62/62, para. 94]
International arbitral tribunal (under the ICSID Convention)
CMS Gas Transmission Company v. Argentine Republic
In its 2005 award, the arbitral tribunal constituted to hear the CMS Gas Transmission
Company v. Argentina case[1099] 162 examined the respondent’s subsidiary argument according
to which Argentina should be exempted from liability for its alleged breach of the 1991
bilateral investment treaty between the United States of America and the Argentine Republic
in light of the existence of a state of necessity or state of emergency due to the severe
economic, social and political crisis in the country as of 2000. Argentina having based its
argument on article 25 finally adopted by the International Law Commission in 2001 and
the pronouncement of the International Court of Justice in the Gabčíkovo-Nagymaros Project
case (see [pages 278–280] above), the tribunal noted in particular that the said provision
“adequately reflect[ed] the state of customary international law on the question of necessity”:
315. The Tribunal, like the parties themselves, considers that article 25 of the articles on State
responsibility adequately reflects the state of customary international law on the question of necessity.
This article, in turn, is based on a number of relevant historical cases discussed in the Commentary,
with particular reference to the Caroline, the Russian Indemnity, Société Commerciale de
Belgique, the Torrey Canyon and the Gabcíkovo-Nagymaros cases.
[1098] 161 ICJ, Advisory Opinion, 9 July 2004, p. 136, para. 140.
[1099] 162 It should be noted that, on 8 September 2005, Argentina filed an application requesting the
annulment of this award on the grounds that the tribunal had allegedly manifestly exceeded its powers
and that the award had allegedly failed to state the reasons on which it is based. […]
282 Article 25
316. Article 25 reads as follows:
…
317. While the existence of necessity as a ground for precluding wrongfulness under international
law is no longer disputed, there is also consensus to the effect that this ground is an exceptional
one and has to be addressed in a prudent manner to avoid abuse. The very opening of the article to
the effect that necessity ‘may not be invoked’ unless strict conditions are met, is indicative of this
restrictive approach of international law. Case law, state practice and scholarly writings amply support
this restrictive approach to the operation of necessity. The reason is not difficult to understand.
If strict and demanding conditions are not required or are loosely applied, any State could invoke
necessity to elude its international obligations. This would certainly be contrary to the stability and
predictability of the law.
318. The Tribunal must now undertake the very difficult task of finding whether the Argentine
crisis meets the requirements of article 25, a task not rendered easier by the wide variety of views
expressed on the matter and their heavy politicization. Again here the Tribunal is not called upon
to pass judgement on the measures adopted in that connection but simply to establish whether
the breach of the Treaty provisions discussed is devoid of legal consequences by the preclusion of
wrongfulness.
…
324. The International Law Commission’s comment to the effect that the plea of necessity is ‘excluded
if there are other (otherwise lawful) means available, even if they may be more costly or less
convenient,’ is persuasive in assisting this Tribunal in concluding that the measures adopted were
not the only steps available.
325. A different condition for the admission of necessity relates to the requirement that the measures
adopted do not seriously impair an essential interest of the State or States towards which the obligation
exists, or of the international community as a whole. As the specific obligations towards another
State are embodied in the Treaty, this question will be examined in the context of the applicable
treaty provisions. It does not appear, however, that the essential interest of the international community
as a whole was affected in any relevant way, nor that a peremptory norm of international law
might have been compromised, a situation governed by article 26 of the articles.
326. In addition to the basic conditions set out under paragraph 1 of article 25, there are two other
limits to the operation of necessity arising from paragraph 2. As noted in the commentary, the use
of the expression ‘in any case’ in the opening of the text means that each of these limits must be
considered over and above the conditions of paragraph 1.
327. The first such limit arises when the international obligation excludes necessity, a matter which
again will be considered in the context of the Treaty.
328. The second limit is the requirement for the State not to have contributed to the situation of
necessity. The commentary clarifies that this contribution must be ‘sufficiently substantial and not
merely incidental or peripheral’. In spite of the view of the parties claiming that all factors contributing
to the crisis were either endogenous or exogenous, the Tribunal is again persuaded that similar
to what is the case in most crises of this kind the roots extend both ways and include a number of
domestic as well as international dimensions. This is the unavoidable consequence of the operation
of a global economy where domestic and international factors interact.
329. The issue, however, is whether the contribution to the crisis by Argentina has or has not been
sufficiently substantial. The Tribunal, when reviewing the circumstances of the present dispute,
must conclude that this was the case. The crisis was not of the making of one particular administraArticle
25 283
tion and found its roots in the earlier crisis of the 1980s and evolving governmental policies of the
1990s that reached a zenith in 2002 and thereafter. Therefore, the Tribunal observes that government
policies and their shortcomings significantly contributed to the crisis and the emergency and
while exogenous factors did fuel additional difficulties they do not exempt the Respondent from its
responsibility in the matter.
330. There is yet another important element which the Tribunal must take into account. The International
Court of Justice has in the Gabcíkovo-Nagymaros case convincingly referred to the International
Law Commission’s view that all the conditions governing necessity must be ‘cumulatively’ satisfied.
331. In the present case there are, as concluded, elements of necessity partially present here and
there but when the various elements, conditions and limits are examined as a whole it cannot be
concluded that all such elements meet the cumulative test. This in itself leads to the inevitable conclusion
that the requirements of necessity under customary international law have not been fully
met so as to preclude the wrongfulness of the acts.”[1100] 163
The tribunal then turned to the discussion on necessity and emergency under article XI
of the bilateral treaty[1101] 164 and noted inter alia in this context that the consequences
stemming from Argentina’s economic crisis “while not excusing liability or precluding
wrongfulness from the legal point of view … ought nevertheless to be considered by the
Tribunal when determining compensation”.[1102] 165
[A/62/62, para. 95]
LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc. v. Argentine Republic
In its 2006 decision on liability, the arbitral tribunal constituted to hear the LG&E
Energy Corp., LG&E Capital Corp., LG&E International Inc. v. Argentina found that Argentina
was excused, under article XI of the 1991 bilateral investment treaty between the
United States of America and the Argentine Republic, from liability for any breaches of
that treaty between 1 December 2001 and 26 April 2003, given that it was under a state of
necessity. The tribunal then underlined that its conclusion was supported by “the state of
necessity standard as it exists in international law (reflected in article 25 of the International
Law Commission’s draft articles on State responsibility)” and gave a lengthy commentary
on the conditions thereon:
245. … The concept of excusing a State for the responsibility for violation of its international obligations
during what is called a ‘state of necessity’ or ‘state of emergency’ also exists in international
law. While the Tribunal considers that the protections afforded by article XI have been triggered in
this case, and are sufficient to excuse Argentina’s liability, the Tribunal recognizes that satisfaction
of the state of necessity standard as it exists in international law (reflected in article 25 of the International
Law Commission’s draft articles on State responsibility) supports the Tribunal’s conclusion.
246. In international law, a state of necessity is marked by certain characteristics that must be present
in order for a State to invoke this defense. As articulated by Roberto Ago, one of the mentors of
the draft articles on State responsibility, a state of necessity is identified by those conditions in which
[1100] 163 ICSID, Case No. ARB/01/8, Award, 12 May 2005, paras. 315–331 (footnotes omitted).
[1101] 164 The said provision read as follows: “This Treaty shall not preclude the application by either
Party of measures necessary for the maintenance of public order, the fulfillment of its obligations with
respect to the maintenance or restoration of international peace or security, or the protection of its own
essential security interests.”
[1102] 165 See footnote [1100] 163 above, para. 356.
284 Article 25
a State is threatened by a serious danger to its existence, to its political or economic survival, to the
possibility of maintaining its essential services in operation, to the preservation of its internal peace,
or to the survival of part of its territory. In other words, the State must be dealing with interests that
are essential or particularly important.
247. The United Nations Organization has understood that the invocation of a state of necessity
depends on the concurrent existence of three circumstances, namely: a danger to the survival of the
State, and not for its interests, is necessary; that danger must not have been created by the acting State;
finally, the danger should be serious and imminent, so that there are no other means of avoiding it.
248. The concept of state of necessity and the requirements for its admissibility lead to the idea of
prevention: the State covers itself against the risk of suffering certain damages. Hence, the possibility
of alleging the state of necessity is closely bound by the requirement that there should be a serious
and imminent threat and no means to avoid it. Such circumstances, in principle, have been left to
the State’s subjective appreciation, a conclusion accepted by the International Law Commission.
Nevertheless, the Commission was well aware of the fact that this exception, requiring admissibility,
has been frequently abused by States, thus opening up a very easy opportunity to violate the
international law with impunity. The Commission has set in its draft articles on State responsibility
very restrictive conditions to account for its admissibility, reducing such subjectivity.
…
250. Taking each element in turn, article 25 requires first that the act must be the only means available
to the State in order to protect an interest …
251. The interest subject to protection also must be essential for the State. What qualifies as an ‘essential’
interest is not limited to those interests referring to the State’s existence. As evidence demonstrates,
economic, financial or those interests related to the protection of the State against any danger
seriously compromising its internal or external situation, are also considered essential interests …
…
253. The interest must be threatened by a serious and imminent danger …
254. The action taken by the State may not seriously impair another State’s interest. In this respect, the
Commission has observed that the interest sacrificed for the sake of necessity must be, evidently, less
important than the interest sought to be preserved through the action. The idea is to prevent against
the possibility of invoking the state of necessity only for the safeguard of a non-essential interest.
255. The international obligation at issue must allow invocation of the state of necessity. The inclusion
of an article authorizing the state of necessity in a bilateral investment treaty constitutes the
acceptance, in the relations between States, of the possibility that one of them may invoke the state
of necessity.
…
258. While this analysis concerning article 25 of the draft articles on State responsibility alone does
not establish Argentina’s defence, it supports the Tribunal’s analysis with regard to the meaning of
article XI’s requirement that the measures implemented by Argentina had to have been necessary
either for the maintenance of public order or the protection of its own essential security interests.
259. Having found that the requirements for invoking the state of necessity were satisfied, the Tribunal
considers that it is the factor excluding the State from its liability vis-à-vis the damage caused as a
result of the measures adopted by Argentina in response to the severe crisis suffered by the country.
…
Article 25 285
261. Following this interpretation the Tribunal considers that article XI establishes the state of
necessity as a ground for exclusion from wrongfulness of an act of the State, and therefore, the State
is exempted from liability. This exception is appropriate only in emergency situations; and once the
situation has been overcome, i.e. certain degree of stability has been recovered; the State is no longer
exempted from responsibility for any violation of its obligations under the international law and
shall reassume them immediately.”[1103] 166
[A/62/62, para. 96]
Sempra Energy International v. Argentine Republic
The arbitral tribunal constituted to hear the Sempra Energy International v. Argentine
Republic case, in its 2007 award, dealt with a plea, raised by the respondent, of the existence
of a state of necessity. In considering the assertions of the parties as to the customary
international law status of article 25 of the State responsibility articles, the tribunal
… share[d] the parties’ understanding of Article 25 of the Articles on State Responsibility as reflecting
the state of customary international law on the matter. This is not to say that the Articles are
a treaty or even themselves a part of customary law. They are simply the learned and systematic
expression of the law on state of necessity developed by courts, tribunals and other sources over a
long period of time.
…
345. There is no disagreement either about the fact that a state of necessity is a most exceptional
remedy that is subject to very strict conditions because otherwise it would open the door to States
to elude compliance with any international obligation. Article 25 accordingly begins by cautioning
that the state of necessity ‘may not be invoked’ unless such conditions are met … [1104] 27
In applying article 25, the tribunal held that while the economic crisis which Argentina
faced in the late 1990s was severe, it nonetheless did not find the argument that such
a situation compromised the very existence of the State and its independence, and thereby
qualified as one involving an essential State interest, to be convincing.[1105] 28 Furthermore,
the tribunal referred to the requirement in article 25 that the State cannot invoke necessity
if it has contributed to the situation giving rise to a state of necessity, which it understood
to be a mere “expression of a general principle of law devised to prevent a party from taking
legal advantage of its own fault”.[1106] 29 On an analysis of the facts, the tribunal held that
there had to some extent been a substantial contribution of the State to the situation giving
rise to the state of necessity, and that it therefore could not be claimed that the burden
fell entirely on exogenous factors.[1107] 30 Finally, the tribunal recalled the decision of the
International Court of Justice in the Gabčíkovo-Nagymaros case[1108] 31 in which the Court
referred to the work of the International Law Commission and held that the conditions
in the predecessor provision to article 25 were to be cumulatively met. Since that was not
[1103] 166 ICSID, Case No. ARB/02/1, Decision on Liability, 3 October 2006, paras. 245–259 and 261
(footnotes omitted).
[1104] 27 See footnote [1026] 25 above, paras. 344 and 345.
[1105] 28 Ibid., para. 348.
[1106] 29 Ibid., para. 353.
[1107] 30 Ibid., para. 354.
[1108] 31 See footnote [31] 37 above, p. 7.
286 Article 25
the case on the facts before it, the tribunal concluded that “the requirements for a state of
necessity under customary international law ha[d] not been fully met”.[1109] 32 The tribunal
further considered the interplay between the State responsibility articles, operating at the
level of secondary rules, and the bilateral treaty between the parties in the context of an
invocation by the respondent of the state of necessity under article XI of the treaty, which
envisaged either party taking measures for the “protection of its own essential security
interests”. In considering what was meant by “essential security interest”, the tribunal
explained that “the requirements for a state of necessity under customary international
law, as outlined … in connection with their expression in Article 25 of the State responsibility
articles, become relevant to the matter of establishing whether the necessary conditions
have been met for its invocation under the Treaty. Different might have been the case
if the Treaty had defined this concept and the conditions for its exercise, but this was not
the case.”[1110] 33 Furthermore, the tribunal confirmed that it did not “believe that because
Article XI did not make an express reference to customary law, this source of rights and
obligations becomes inapplicable. International law is not a fragmented body of law as far
as basic principles are concerned and necessity is no doubt one such basic principle.”[1111] 34
As the Tribunal found that the crisis invoked did not meet the customary law requirements
of Article 25, it likewise concluded that it was not necessary to undertake further judicial
review under Article XI given that the article did not set out conditions different from
customary law.[1112] 35
[A/65/76, para. 26]
Special Court for Sierra Leone
Prosecutor v. Fofana and Kondewa (CDF Case)
A Trial Chamber of the Special Court for Sierra Leone, in Prosecutor v. Fofana and
Kondewa (CDF Case), Case No. SCSL-04–14-T, in a judgment handed down on 2 August
2007, made an indirect reference, at para. 84, to the predecessor article to draft article 25
of the 2001 articles on responsibility of States for internationally wrongful acts (namely,
draft article 33, as adopted on first reading) by referring to the 1997 judgment of the International
Court of Justice in the Gabčíkovo-Nagymaros Project case, as “clearly express[ing]
the view that the defence of necessity was in fact recognised by customary international
law and it was a ground available to States in order to evade international responsibility
for wrongful acts”.
[A/65/76, footnote 26]
[1109] 32 See footnote [1026] 25 above, para. 355.
[1110] 33 Ibid., para. 375.
[1111] 34 Ibid., para. 378.
[1112] 35 Ibid., para. 388.
Article 25 287
Ad hoc committee (under the ICSID Convention)
Sempra Energy International v. Argentine Republic
The ad hoc committee in Sempra Energy International v. Argentine Republic, while
acknowledging the customary international law status of article 25, indicated that “[i]t does
not follow, however, that customary law … establishes a peremptory ‘definition of necessity
and the conditions for its operation’. While some norms of customary law are peremptory
(jus cogens), others are not, and States may contract otherwise … ”.[1113] 123
The committee highlighted the differences between article 25 and article XI of the
bilateral investment treaty in question, in the following terms:
200. … Article 25 is concerned with the invocation by a State Party of necessity ‘as a ground for
precluding the wrongfulness of an act not in conformity with an international obligation of that
State’. Article 25 presupposes that an act has been committed that is incompatible with the State’s
international obligations and is therefore ‘wrongful’. Article XI, on the other hand, provides that
‘This Treaty shall not preclude’ certain measures so that, where Article XI applies, the taking of
such measures is not incompatible with the State’s international obligations and is not therefore
‘wrongful’. Article 25 and Article XI therefore deal with quite different situations. Article 25 cannot
therefore be assumed to ‘define necessity and the conditions for its operation’ for the purpose of
interpreting Article XI, still less to do so as a mandatory norm of international law.[1114] 124
[A/68/72, paras. 90–91]
Ad hoc committee (under the ICSID Convention)
Enron Creditors Recovery Corp. and Ponderosa Assets, L.P. v. The Argentine Republic
The ad hoc committee in Enron Creditors Recovery Corp. and Ponderosa Assets, L.P.
v. The Argentine Republic treated article 25 as reflecting the “principle of necessity under
customary international law”.[1115] 125 Following an in-depth analysis[1116] 126 of the “only
way” requirement in article 25, paragraph 1(a), the committee observed that the arbitral
tribunal had been required “to determine whether, on the proper construction of Article
25(1)(a) of the ILC Articles, the ‘only way’ requirement in that provision was satisfied,
and not merely whether, from an economic perspective, there were other options available
for dealing with the economic crisis”.[1117] 127 It concluded that “the Tribunal did not in
fact apply Article 25(1)(a) of the ILC Articles (or more precisely, customary international
law as reflected in that provision), but instead applied an expert opinion on an economic
issue”.[1118] 128 The committee further found the tribunal’s treatment of the requirement
that the measures adopted by Argentina “seriously impair[ed] an essential interest of the
State or States towards which the obligation exists, or of the international community as a
[1113] 123 See footnote [6] 4 above, para. 197.
[1114] 124 Ibid., para. 200.
[1115] 125 See footnote [1027] 122 above, para. 349.
[1116] 126 Ibid., paras. 368–376.
[1117] 127 Ibid., para. 377.
[1118] 128 Ibid.
288 Article 25
whole”,[1119] 129 within the meaning of paragraph 1(b), to be obscure.[1120] 130 The committee
also analysed, and found shortcomings with, the tribunal’s consideration of the aspect of
“contribution to the situation of necessity”, in paragraph 2(b).[1121] 131 The committee found
fault with the tribunal’s reliance on an expert opinion on an economic issue. It held that:
[t]he Tribunal’s process of reasoning should have been as follows. First, the Tribunal should have
found the relevant facts based on all of the evidence before it, including the [expert opinion]. Secondly,
the Tribunal should have applied the legal elements of the Article 25(2)(b) to the facts as found
(having if necessary made legal findings as to what those legal elements are). Thirdly, in the light of
the first two steps, the Tribunal should have concluded whether or not Argentina had “contributed
to the situation of necessity” within the meaning of Article 25(2)(b). For the Tribunal to leap from
the first step to the third without undertaking the second amount[ed] in the Committee’s view to a
failure to apply the applicable law.[1122] 132
[A/68/72, para. 92]
International arbitral tribunal (under the ICSID Convention)
Suez, Sociedad General de Aguas de Barcelona S.A. & InterAgua Servicios Integrales del
Agua S.A. v. The Argentine Republic
In Suez, Sociedad General de Aguas de Barcelona S.A. & InterAgua Servicios Integrales
del Agua S.A. v. The Argentine Republic, the arbitral tribunal, upon consideration of the
plea of necessity raised by the respondent, noted that:
[t]he severity of a crisis, no matter the degree, is not sufficient to allow a plea of necessity to relieve
a state of its treaty obligations. The customary international law, as restated by Article 25 of the ILC
Articles … imposes additional strict conditions. The reason of course is that given the frequency of
crises and emergencies that nations, large and small, face from time to time, to allow them to escape
their treaty obligations would threaten the very fabric of international law and indeed the stability
of the system of international relations … .[1123] 133
[A/68/72, para. 93]
Total S.A. v. Argentine Republic
The arbitral tribunal in Total S.A. v. Argentine Republic “recall[ed] that customary
international law impose[d] strict conditions in order for a State to successfully avail itself
of the defence of necessity” and continued that “Article 25 of the ILC Articles on State
Responsibility [was] generally considered as having codified customary international law
in the matter … ”.[1124] 134
[A/68/72, para. 94]
[1119] 129 Ibid., para. 379 (emphasis omitted).
[1120] 130 Ibid. paras. 380–384.
[1121] 131 Ibid., paras. 385–392.
[1122] 132 Ibid., para. 393.
[1123] 133 ICSID, Case No. ARB/03/17, Decision on Liability, 30 July 2010, para. 236.
[1124] 134 See footnote [164] 29 above, para. 220.
Article 25 289
Impregilo S.p.A. v. Argentine Republic
In Impregilo S.p.A. v. Argentine Republic, the arbitral tribunal, in considering a case
arising from the 2001 Argentine financial crisis, evaluated in extenso,
… Argentina’s necessity plea under the standard set by customary international law, which the
Parties agree has been codified in Article 25 of the International Law Commission’s Articles on
Responsibility of States for Internationally Wrongful Acts”, and determined that the applicable
standard “by definition is stringent and difficult to satisfy.[1125] 135
[A/68/72, para. 95]
Ad hoc committee (under the ICSID Convention)
Continental Casualty Company v. The Argentine Republic
The ad hoc committee in Continental Casualty Company v. The Argentine Republic
rejected the applicant’s claim that the arbitral tribunal had failed to address its arguments
in connection with “continuing post-‘state of necessity’ period loss” on the basis that it had
not been a major argument in the proceedings before the tribunal.[1126] 136 In reaching such
conclusion, the committee recalled the “differences between Article XI of the BIT and the
principle of necessity”.[1127] 137
[A/68/72, para. 96]
International arbitral tribunal (under the ICSID Convention)
El Paso Energy International Company v. The Argentine Republic
In El Paso Energy International Company v. The Argentine Republic, the arbitral
tribunal analysed the differences between article XI of the treaty in question (which it
deemed to be the lex specialis), and article 25 of the State responsibility articles (the lex
generalis),[1128] 138 and referred to the reasoning of the Decision on Annulment in Continental
Casualty Company v. The Argentine Republic.[1129] 139 Notwithstanding such differences,
it considered, inter alia, the rule on “contributory behaviour”, contained in article 25(2)(b),
to be a “rule of general international law[] applicable between the Parties to the BIT and,
hence, a rule which may be used to interpret Article XI of the [BIT]”.[1130] 140
[A/68/72, para. 97]
[1125] 135 ICSID, Case No. ARB/07/17, Award, 21 June 2011, paras. 344, 345–359.
[1126] 136 ICSID, Case No. ARB/03/9, Decision on the Application for Partial Annulment of Continental
Casualty Company and the Application for Partial Annulment of the Argentine Republic, 16 September
2011, para. 128.
[1127] 137 Ibid., paras. 116, 117–124.
[1128] 138 See footnote [56] 16 above, paras. 553–555.
[1129] 139 See footnote [1126] 136 above.
[1130] 140 See footnote [56] 16 above, para. 621.
290 Article 25
EDF International S.A. et al. v. Argentine Republic
The arbitral tribunal in EDF International S.A. et al. v. Argentine Republic, upon considering
the state of necessity defence as articulated in the State responsibility articles, found that
the respondent had failed to meet its burden to demonstrate certain key elements as required
by article 25, particularly that the wrongful act had been the only way to safeguard its essential
interest, and that the respondent had not contributed to the situation of necessity. The
Tribunal concluded that “[n]ecessity must be construed strictly and objectively, not as an easy
escape hatch for host states wishing to avoid treaty obligations which prove difficult”.[1131] 141
[A/68/72, para. 98]
Ad hoc committee (under the ICSID Convention)
Impregilo S.p.A. v. Argentine Republic
In Impregilo S.p.A. v. Argentine Republic, the ad hoc committee constituted to hear
Argentina’s application for annulment of the award found that, in considering, inter alia,
article 25 of the State responsibility articles, the arbitral tribunal had “based its decision
on several solid sources”.[1132] 128
[A/71/80, para. 93]
El Paso Energy International Company v. The Argentine Republic
The ad hoc committee in El Paso Energy International Company v. The Argentine Republic,
noted that “[i]n paragraphs 621 to 623 [the arbitral tribunal] stated what other rules of the ILC’s
Draft Articles and the Unidroit Principles provide on the exclusion of liability and the degree
of contribution to a state of necessity”,[1133] 129 and concluded that the arbitral tribunal’s analysis
“was clear …; it stated reasons and explained amply the decisions taken on this issue”.[1134] 130
[A/71/80, para. 94]
International arbitral tribunal (under the ICSID Convention)
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal stated
that “the international law analysis [under Article 25 of the ILC Articles] is not affected
by the domestic test which gives rise to a state of emergency. Accordingly, a domestic
declaration of a state of emergency can only serve as evidence of a state of emergency that
may give rise to a necessity defence under international law”.[1135] 131
[A/71/80, para. 95]
[1131] 141 See footnote [167] 31 above, para. 1171.
[1132] 128 ICSID, Case No. ARB/07/17, Decision of the ad hoc Committee on the Application for
Annulment, 24 January 2014, para. 203.
[1133] 129 See footnote [874] 123 above, para. 254 (emphasis omitted).
[1134] 130 Ibid., para. 256.
[1135] 131 See footnote [114] 24 above, para. 624.
Article 25 291
Ad hoc committee (under the ICSID Convention)
Total S.A. v. Argentine Republic
In Total S.A. v. Argentine Republic, the ad hoc committee constituted to hear Argentina’s
application for annulment of the award considered, inter alia, article 25 of the State
responsibility articles when concluding that “Argentina is not correct in claiming that the
Tribunal never specified the legal standards to be met in relation to the necessity of protection
of essential interest and the ‘only way’ requirement”.[1136] 136
[A/74/83, p. 25]
EDF International SA and ors v. Argentina
The ad hoc committee constituted to decide on the annulment of the award in EDF
International SA and ors v. Argentina, did:
not consider that the Tribunal can be faulted for having taken the provisions of ILC Article 25 as its
point of reference. It is true that Argentina questioned whether all of the detail of Article 25 reflected
customary international law and disputed what it described as the Claimants’ propensity to ‘refer to
each of the paragraphs of Article 25 as though it were the final text of a treaty in full force and effect’.
At no point, however, did Argentina indicate what aspects of Article 25 it considered did not reflect
customary international law. Nor, more importantly, did it at any stage advance a positive case in
favour of a standard of necessity materially different from that set out in Article 25.
The committee “therefore conclude[d] that the Tribunal was correct in stating that ‘neither
side has argued for application of a standard more favourable to host states than the norms
of Article 25’ and committed no annullable error in treating Article 25 as a statement of
the applicable customary international law”.[1137] 137
[A/74/83, p. 25]
Permanent Court of Arbitration (under UNCITRAL Rules)
CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom
Devas Mauritius Limited v. The Republic of India
In CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom
Devas Mauritius Limited v. The Republic of India, the arbitral tribunal, referring to
article 25 of the State responsibility articles, determined “that the conditions attached to
the state of necessity defence under customary international law are not applicable in the
present situation”.[1138] 138
[A/74/83, p. 26]
[1136] 136 ICSID, Case No. ARB/04/01, Decision on Annulment, 1 February 2016, para. 238.
[1137] 137 ICSID, Case No. ARB/03/23, Decision on Annulment, 5 February 2016, para. 319.
[1138] 138 PCA, Case No. 2013–09, Award on Jurisdiction and the Merits, 25 July 2016, para. 256.
292 Article 25
Ad hoc committee (under the ICSID Convention)
Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine
Republic
The ad hoc committee constituted to decide on the annulment of the award in Suez,
Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine
Republic determined that, although both the “only way” and the “noncontribution”
requirements under article 25 were “susceptible to a certain degree of interpretation”,[1139] 139
“[r]egardless of the merits of the interpretation adopted by the Tribunal, which is not for
this Committee to re-consider, the Committee is of the view that the Tribunal thereby
sufficiently established the standard it was going to apply to the facts of the case”.[1140] 140
[A/74/83, p. 26]
International arbitral tribunal (under the ICSID Convention)
Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The
Argentine Republic
The arbitral tribunal in Teinver S.A., Transportes de Cercanías S.A. and Autobuses
Urbanos del Sur S.A. v. The Argentine Republic found that “it is not necessary for the Tribunal
to consider Respondent’s defense of necessity or Claimants’ specific arguments opposing
that defense” under article 25 of the State responsibility articles because it had previously
dismissed the claims that the defendant had breached the relevant obligations.[1141] 141
[A/74/83, p. 26]
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
In Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, the tribunal, while addressing
the defence of necessity under customary international law,[1142] 142 quoted article 25 and:
decide[d] that the Respondent bears the legal burden of proving its defence of ‘necessity’ under
customary international law, as a positive allegation. Moreover, the elements of that defence, as
listed in Article 25 of the ILC Articles, are cumulative. In other words, it is for the Respondent to
prove each of the relevant elements and not for the Claimant to disprove any of them. That is clear
from the negative formulation of Article 25(1) and 25(2) (‘may not be invoked’, ‘unless’ and ‘if”),
together with elements that fall almost exclusively within the actual knowledge of the State invoking
the defence of ‘necessity.’ This approach also accords with the ILC’s Commentary applicable to
Article 25 of the ILC Articles.[1143] 143
[A/74/83, p. 26]
[1139] 139 ICSID, Case No. ARB/03/19, Decision on Argentina’s Application for Annulment, 5 May
2017, para. 290.
[1140] 140 Ibid., para. 295.
[1141] 141 See footnote [355] 45 above, paras. 1045–1046.
[1142] 142 ICSID, Case No. ARB/14/4, Award, 31 August 2018, paras. 8.2–8.3.
[1143] 143 Ibid., paras. 8.38 et seq.
Article 25 293
Ad hoc committee (under the ICSID Convention)
Bernhard Friedrich Arnd Rüdiger von Pezold et al. v. Republic of Zimbabwe
In Bernhard Friedrich Arnd Rüdiger von Pezold et al. v. Republic of Zimbabwe, the
ad hoc committee constituted to hear Zimbabwe’s application for annulment of the award
noted that:
Zimbabwe raised its necessity defense in the arbitration proceedings primarily in terms of Article
25 of the ILC Articles, and that the Tribunal devoted a significant part of the Award to this
issue. Having analyzed the issue extensively, the Tribunal eventually dismissed the defense, concluding
that Zimbabwe had not satisfied the requirements of Article 25. Consequently, the Tribunal
did apply international law rather than Zimbabwean law when determining Zimbabwe’s necessity
defense.[1144] 144
[A/74/83, p. 27]
Suez, Sociedad General De Aguas De Barcelona S.A. and Interagua Servicios Integrales De
Agua S.A. v. Argentine Republic
In Suez, Sociedad General De Aguas De Barcelona S.A. and Interagua Servicios Integrales
De Agua S.A. v. Argentine Republic, the ad hoc committee, discussing the arbitral
tribunals application of article 25, found that the tribunal had not manifestly exceeded its
powers or failed to state reasons when applying the necessity defence under article 25 of
the State responsibility articles.[1145] 145
[A/74/83, p. 27]
[International arbitral tribunal (under the ICSID Convention)
Urbaser S.A. and Consorcio De Aguas Bilbao Bizkaia, Bilbao Bizkaia UR Partzuergoa v.
the Argentine Republic
In Urbaser S.A. and Consorcio De Aguas Bilbao Bizkaia, Bilbao Bizkaia UR Partzuergoa
v. the Argentine Republic, the arbitral tribunal recognized articles 25 and 27 of the
State responsibility articles as reflecting “in large part general principles of international
law”.[1146] 148
[A/74/83, p. 27]]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Venezuela US, S.R.L. v. Bolivarian Republic of Venezuela
referred to articles 12 and 20 to 25, noting that “[t]here is a breach only when the conduct
[1144] 144 ICSID, Case No. ARB/10/15, Decision on Annulment, 21 November 2018, paras. 278–279.
[1145] 145 ICSID, Case No. ARB/03/17, Decision on Annulment, 14 December 2018, paras. 182–190.
[1146] [148 ICSID, Case No. ARB/07/26, Award, 8 December 2016, para. 709.]
294 Article 25
of a State is not in conformity with what is required of it by an international obligation,
provided that there are no circumstances precluding the wrongfulness”.[1147] 82
[A/77/74, p. 17]]
International arbitral tribunal (under the ICSID Convention)
(DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar
In (DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar, the
arbitral tribunal referred to article 25, explaining that, in a situation of necessity,
a State is exempted from its responsibility for acting contrary to its international obligations if its
conduct is ‘the only way for the State to safeguard an essential interest against a grave and imminent
peril’. This means that, in this case, the inaction of Malagasy law enforcement on the ground
… would have had to be this ‘only way’. It is sufficient to articulate the hypothesis to see that it has
no basis.[1148] 110
[A/77/74, p. 21]
[1147] [82 See footnote [126] 14 above, para. 155.]
[1148] 110 [ICSID, Case No. ARB/17/18, Award, 17 April 2020], para. 348.
295
Article 26. Compliance with peremptory norms
Nothing in this chapter precludes the wrongfulness of any act of a State which
is not in conformity with an obligation arising under a peremptory norm of general
international law.
Commentary
(1) In accordance with article 53 of the 1969 Vienna Convention, a treaty which conflicts
with a peremptory norm of general international law is void. Under article 64, an earlier treaty
which conflicts with a new peremptory norm becomes void and terminates.[1149] 410 The question
is what implications these provisions may have for the matters dealt with in chapter V.
(2) Sir Gerald Fitzmaurice as Special Rapporteur on the Law of Treaties treated this question
on the basis of an implied condition of “continued compatibility with international
law”, noting that:
A treaty obligation the observance of which is incompatible with a new rule or prohibition of international
law in the nature of jus cogens will justify (and require) non-observance of any treaty
obligation involving such incompatibility …
The same principle is applicable where circumstances arise subsequent to the conclusion of a treaty,
bringing into play an existing rule of international law which was not relevant to the situation as it
existed at the time of the conclusion of the treaty.[1150] 411
The Commission did not, however, propose any specific articles on this question, apart
from articles 53 and 64 themselves.
(3) Where there is an apparent conflict between primary obligations, one of which arises
for a State directly under a peremptory norm of general international law, it is evident that
such an obligation must prevail. The processes of interpretation and application should
resolve such questions without any need to resort to the secondary rules of State responsibility.
In theory, one might envisage a conflict arising on a subsequent occasion between a
treaty obligation, apparently lawful on its face and innocent in its purpose, and a peremptory
norm. If such a case were to arise it would be too much to invalidate the treaty as a
whole merely because its application in the given case was not foreseen. But in practice
such situations seem not to have occurred.[1151] 412 Even if they were to arise, peremptory
norms of general international law generate strong interpretative principles which will
resolve all or most apparent conflicts.
(4) It is, however, desirable to make it clear that the circumstances precluding wrongfulness
in chapter V of Part One do not authorize or excuse any derogation from a peremptory
norm of general international law. For example, a State taking countermeasures may not
[1149] 410 See also article 44, paragraph 5, which provides that in cases falling under article 53, no
separation of the provisions of the treaty is permitted.
[1150] 411 Fourth report on the law of treaties, Yearbook … 1959 (footnote [952] 307 above), p. 46. See
also S. Rosenne, Breach of Treaty (Cambridge, Grotius, 1985), p. 63.
[1151] 412 For a possible analogy, see the remarks of Judge ad hoc Lauterpacht in Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of
13 September 1993, I.C.J. Reports 1993, p. 325, at pp. 439–441. ICJ did not address these issues in its order.
296 Article 26
derogate from such a norm: for example, a genocide cannot justify a counter-genocide.[1152]413
The plea of necessity likewise cannot excuse the breach of a peremptory norm. It would be
possible to incorporate this principle expressly in each of the articles of chapter V, but it is
both more economical and more in keeping with the overriding character of this class of
norms to deal with the basic principle separately. Hence, article 26 provides that nothing
in chapter V can preclude the wrongfulness of any act of a State which is not in conformity
with an obligation arising under a peremptory norm of general international law.[1153] 414
(5) The criteria for identifying peremptory norms of general international law are stringent.
Article 53 of the 1969 Vienna Convention requires not merely that the norm in question
should meet all the criteria for recognition as a norm of general international law,
binding as such, but further that it should be recognized as having a peremptory character
by the international community of States as a whole. So far, relatively few peremptory
norms have been recognized as such. But various tribunals, national and international,
have affirmed the idea of peremptory norms in contexts not limited to the validity of treaties.[
1154] 415 Those peremptory norms that are clearly accepted and recognized include the
prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity
and torture, and the right to self-determination.[1155] 416
(6) In accordance with article 26, circumstances precluding wrongfulness cannot justify or
excuse a breach of a State’s obligations under a peremptory rule of general international law.
Article 26 does not address the prior issue whether there has been such a breach in any given
case. This has particular relevance to certain articles in chapter V. One State cannot dispense
another from the obligation to comply with a peremptory norm, e.g. in relation to genocide
or torture, whether by treaty or otherwise.[1156] 417 But in applying some peremptory norms
the consent of a particular State may be relevant. For example, a State may validly consent
to a foreign military presence on its territory for a lawful purpose. Determining in which
circumstances consent has been validly given is again a matter for other rules of international
law and not for the secondary rules of State responsibility.[1157] 418
[1152] 413 As ICJ noted in its decision in the case concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide, “in no case could one breach of the Convention serve as an
excuse for another” (Counter-Claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 243, at p. 258, para. 35).
[1153] 414 For convenience, this limitation is spelled out again in the context of countermeasures in
Part Three, chapter II. See article 50 and commentary, paras. (9) and (10).
[1154] 415 See, e.g., the decisions of the International Tribunal for the Former Yugoslavia in case
IT-95–17/1-T, Prosecutor v. Furundzija, judgement of 10 December 1998; ILM, vol. 38, No. 2 (March
1999), p. 317, and of the British House of Lords in Regina v. Bow Street Metropolitan Stipendiary Magistrate
and Others, ex parte Pinochet Ugarte (No. 3), ILR, vol. 119. Cf. Legality of the Threat or Use of
Nuclear Weapons (footnote [48] 54 above), p. 257, para. 79.
[1155] 416 Cf. East Timor (footnote [48] 54 above).
[1156] 417 See paragraph (4) of the commentary to article 45.
[1157] 418 See paragraphs (4) to (7) of the commentary to article 20.
Article 26 297
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Convention)
CMS Gas Transmission Company v. Argentine Republic
In its 2005 award, the arbitral tribunal constituted to hear the CMS Gas Transmission
Company v. Argentina case,[1158] 167 in the context of its examination of Argentina’s defence
based on state of necessity,[1159] 168 made incidental reference to article 26, as finally adopted
by the International Law Commission in 2001, noting that there did not appear “that a
peremptory norm of international law might have been compromised [by Argentina’s conduct],
a situation governed by article 26 of the articles”.[1160] 169
[A/62/62, para. 97]
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal found
that “Zimbabwe’s violation of its obligation erga omnes means that it has breached ILC
Article 26 and is therefore precluded from raising the necessity defence in relation to any
events upon which the FTLRP [Fast Track Land Reform Programme] policy touches”.[1161] 132
[A/71/80, para. 96]
European Court of Human Rights
Al-Dulimi and Montana Management Inc. Switzerland
In Al-Dulimi and Montana Management Inc. Switzerland, the European Court of Human
Rights referred to article 26 and the commentary thereto as relevant international law.[1162] 146
[A/74/83, p. 27]
Inter-American Court of Human Rights
Herzog et al. v. Brazil
In Herzog et al. v. Brazil, the Inter-American Court of Human Rights, citing the commentary
to article 26 of the State responsibility articles, recalled that the Commission
had confirmed that the prohibition on crimes against humanity was clearly accepted and
recognized as a peremptory norm of international law.[1163] 147
[A/74/83, p. 27]
[1158] 167 See footnote [1100] 163 above.
[1159] 168 See [pp. 281–283] above.
[1160] 169 See footnote [1100] 163 above, para. 325.
[1161] 132 See footnote [114] 24 above, para. 657.
[1162] 146 ECHR, Grand Chamber, Application No. 5809/08, Judgment, 21 June 2016, para. 57.
[1163] 147 IACHR, Preliminary Objections, Merits, Reparations and Costs. Series C No. 353 (Spanish),
Judgment, 15 March 2018.
298 Article 26
Committee on the Elimination of Racial Discrimination
State of Palestine v. Israel
In its decision on jurisdiction regarding the inter-State communication State of
Palestine v. Israel, the Committee on the Elimination of Racial Discrimination cited the
commentary to article 26, noting that “several international bodies have recognized the
essential character of the principle of the prohibition of racial discrimination for the international
community as a whole”, and emphasizing that “the International Law Commission
has stated that the peremptory norms (jus cogens) that are clearly accepted and recognized
include the prohibitions of aggression, genocide, slavery, racial discrimination,
crimes against humanity and torture, and the right to self-determination”.[1164] 111
[A/77/74, p. 22]
[1164] 111 Decision on jurisdiction, CERD/C/100/5, 12 December 2019, para. 40.
299
Article 27. Consequences of invoking a circumstance precluding wrongfulness
The invocation of a circumstance precluding wrongfulness in accordance with this
chapter is without prejudice to:
(a) compliance with the obligation in question, if and to the extent that the circumstance
precluding wrongfulness no longer exists;
(b) the question of compensation for any material loss caused by the act in question.
Commentary
(1) Article 27 is a without prejudice clause dealing with certain incidents or consequences
of invoking circumstances precluding wrongfulness under chapter V. It deals with two
issues. First, it makes it clear that circumstances precluding wrongfulness do not as such
affect the underlying obligation, so that if the circumstance no longer exists the obligation
regains full force and effect. Secondly, it refers to the possibility of compensation in certain
cases. Article 27 is framed as a without prejudice clause, because, as to the first point, it
may be that the effect of the facts which disclose a circumstance precluding wrongfulness
may also give rise to the termination of the obligation, and as to the second point, because
it is not possible to specify in general terms when compensation is payable.
(2) Subparagraph (a) of article 27 addresses the question of what happens when a condition
preventing compliance with an obligation no longer exists or gradually ceases to
operate. It makes it clear that chapter V has a merely preclusive effect. When and to the
extent that a circumstance precluding wrongfulness ceases, or ceases to have its preclusive
effect for any reason, the obligation in question (assuming it is still in force) will again
have to be complied with, and the State whose earlier non-compliance was excused must
act accordingly. The words “and to the extent” are intended to cover situations in which
the conditions preventing compliance gradually lessen and allow for partial performance
of the obligation.
(3) This principle was affirmed by the tribunal in the “Rainbow Warrior” arbitration,[1165]419
and even more clearly by ICJ in the Gabčíkovo-Nagymaros Project case. In considering
Hungary’s argument that the wrongfulness of its conduct in discontinuing work on the
Project was precluded by a state of necessity, the Court remarked that “[a]s soon as the state
of necessity ceases to exist, the duty to comply with treaty obligations revives.”[1166] 420 It may
be that the particular circumstances precluding wrongfulness are, at the same time, a sufficient
basis for terminating the underlying obligation. Thus a breach of a treaty justifying
countermeasures may be “material” in terms of article 60 of the 1969 Vienna Convention
and permit termination of the treaty by the injured State. Conversely, the obligation may
be fully reinstated or its operation fully restored in principle, but modalities for resuming
performance may need to be settled. These are not matters which article 27 can resolve,
other than by providing that the invocation of circumstances precluding wrongfulness is
without prejudice to “compliance with the obligation in question, if and to the extent that
the circumstance precluding wrongfulness no longer exists”. Here “compliance with the
obligation in question” includes cessation of the wrongful conduct.
[1165] 419 “Rainbow Warrior” (footnote [40] 46 above), pp. 251–252, para. 75.
[1166] 420 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 63, para 101; see also ibid., page
38, para. 47.
300 Article 27
(4) Subparagraph (b) of article 27 is a reservation as to questions of possible compensation
for damage in cases covered by chapter V. Although the article uses the term “compensation”,
it is not concerned with compensation within the framework of reparation
for wrongful conduct, which is the subject of article 34. Rather, it is concerned with the
question whether a State relying on a circumstance precluding wrongfulness should nonetheless
be expected to make good any material loss suffered by any State directly affected.
The reference to “material loss” is narrower than the concept of damage elsewhere in the
articles: article 27 concerns only the adjustment of losses that may occur when a party
relies on a circumstance covered by chapter V.
(5) Subparagraph (b) is a proper condition, in certain cases, for allowing a State to rely
on a circumstance precluding wrongfulness. Without the possibility of such recourse, the
State whose conduct would otherwise be unlawful might seek to shift the burden of the
defence of its own interests or concerns onto an innocent third State. This principle was
accepted by Hungary in invoking the plea of necessity in the Gabčíkovo-Nagymaros Project
case. As ICJ noted, “Hungary expressly acknowledged that, in any event, such a state of
necessity would not exempt it from its duty to compensate its partner.”[1167] 421.
(6) Subparagraph (b) does not attempt to specify in what circumstances compensation
should be payable. Generally, the range of possible situations covered by chapter V is such
that to lay down a detailed regime for compensation is not appropriate. It will be for the
State invoking a circumstance precluding wrongfulness to agree with any affected States
on the possibility and extent of compensation payable in a given case.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Convention)
CMS Gas Transmission Company v. Argentine Republic
In its 2005 award, the arbitral tribunal constituted to hear the CMS Gas Transmission
Company v. Argentina case,[1168] 170 after having concluded its examination of Argentina’s
defence based on state of necessity and article XI of the relevant bilateral treaty,[1169] 171 stated
that it was “also mindful” of the rule embodied in subparagraph (a) of article 27, as finally
adopted by the International Law Commission in 2001 (which it quoted), adding thereafter:
380. The temporary nature of necessity is thus expressly recognized and finds support in the decisions
of courts and tribunals. The commentary cites in this connection the Rainbow Warrior and
Gabcíkovo Nagymaros cases. In this last case the International Court of Justice held that as soon ‘as
the state of necessity ceases to exist, the duty to comply with treaty obligations revives’.
…
[1167] 421 Ibid., p. 39, para. 48. A separate issue was that of accounting for accrued costs associated
with the Project (ibid., p. 81, paras. 152–153).
[1168] 170 See footnote [1100] 163 above.
[1169] 171 See [pp. 281–283] above.
Article 27 301
382. Even if the plea of necessity were accepted, compliance with the obligation would reemerge as
soon as the circumstance precluding wrongfulness no longer existed, which is the case at present.[1170] 172
The tribunal then quoted subparagraph (b) of article 27 finally adopted by the International
Law Commission, observing that it found support again in the Gabcíkovo Nagymaros
Project case, as well as in earlier decisions such as the Compagnie générale de l’Orinoco,
the Properties of the Bulgarian Minorities in Greece and Orr & Laubenheimer cases (in the
latter cases, the tribunal noted, “the concept of damages appears to have been broader than
that of material loss in article 27”). After having described the positions of the parties on
this issue, the tribunal continued as follows:
390. The Tribunal is satisfied that article 27 establishes the appropriate rule of international law on
this issue. The Respondent’s argument is tantamount to the assertion that a Party to this kind of
treaty, or its subjects, are supposed to bear entirely the cost of the plea of the essential interests of
the other Party. This is, however, not the meaning of international law or the principles governing
most domestic legal systems.
391. The Tribunal’s conclusion is further reaffirmed by the record. At the hearing the Tribunal put
the question whether there are any circumstances in which an investor would be entitled to compensation
in spite of the eventual application of article XI and the plea of necessity.
392. The answer to this question by the Respondent’s expert clarifies the issue from the point of view
of both its temporary nature and the duty to provide compensation: while it is difficult to reach a
determination as long as the crisis is unfolding, it is possible to envisage a situation in which the
investor would have a claim against the government for the compliance with its obligations once
the crisis was over; thereby concluding that any suspension of the right to compensation is strictly
temporary, and that this right is not extinguished by the crisis events.
393. The Tribunal also notes that, as in the Gaz de Bordeaux case, the International Law Commission’s
commentary to article 27 suggests that the States concerned should agree on the possibility
and extent of compensation payable in a given case.
394. It is quite evident then that in the absence of agreement between the parties the duty of the Tribunal
in these circumstances is to determine the compensation due. This the Tribunal will do next.[1171] 173
[A/62/62, para. 98]
LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc. v. Argentine Republic
In its 2006 decision on liability, the arbitral tribunal constituted to hear the LG&E
Energy Corp., LG&E Capital Corp., LG&E International Inc. v. Argentina, having found
that Argentina was under a state of necessity that excused it from liability for any breaches
of the 1991 bilateral investment treaty under article XI of that treaty,[1172] 174 responded to
the claimants argument, based on article 27 finally adopted by the International Law Commission
in 2001, that Argentina should compensate them for losses incurred as a result of
the government’s actions:
With regard to article 27 of the United Nations draft articles alleged by Claimants, the Tribunal opines
that the article at issue does not specifically refer to the compensation for one or all the losses incurred
[1170] 172 See footnote [1100] 163 above, paras. 379, 380 and 382.
[1171] 173 Ibid., paras. 390–394 (footnotes omitted).
[1172] 174 See [pp. 283–285] above.
302 Article 27
by an investor as a result of the measures adopted by a State during a state of necessity. The commentary
introduced by the Special Rapporteur establishes that article 27 “does not attempt to specify in
what circumstances compensation would be payable”. The rule does not specify if compensation is
payable during the state of necessity or whether the State should reassume its obligations. In this case,
this Tribunal’s interpretation of article XI of the Treaty provides the answer.[1173] 175
The tribunal later added that:
Article 27 of the International Law Commission’s draft articles, as well as article XI of the Treaty,
does not specify if any compensation is payable to the party affected by losses during the state of
necessity. Nevertheless, … this Tribunal has decided that the damages suffered during the state of
necessity should be borne by the investor.[1174] 176
[A/62/62, para. 99]
Ad hoc committee (under the ICSID Convention)
Patrick Mitchell v. Democratic Republic of the Congo
In its 2006 decision on the application for annulment of the award rendered on 9 February
2004 in the Patrick Mitchell v. Democratic Republic of the Congo case, the ad hoc
committee noted that even if the arbitral tribunal had concluded that the measures at issue
were not wrongful by reason of the state of war in the Congo, “this would not necessarily
have had any impact on evaluating the act of dispossessing Mr. Mitchell, and on the need
for compensation; possibly, it could have had an influence on the calculation of the amount
of such compensation”. The ad hoc committee thereafter quoted in a footnote the text of
article 27 finally adopted by the International Law Commission in 2001, “bearing witness
to the existence of a principle of international law in this regard”.[1175] 177
[A/62/62, para. 100]
International arbitral tribunal (under the ICSID Convention)
Sempra Energy International v. Argentine Republic
The arbitral tribunal constituted to hear the Sempra Energy International v. Argentina
case, in its 2007 award, noted that the requirement of temporality in subparagraph (a) of
article 27 was not disputed by the parties, even though “the continuing extension of the
emergency … [did] not seem to be easily reconciled with the requirement of temporality”.
That in turn resulted in “uncertainty as to what will be the legal consequences of the
Emergency Law’s conclusion”,[1176] 36 which related to the application of subparagraph (b) of
article 27. In the face of an interpretation of subparagraph (b), offered by the respondent,
that the provision would require compensation only for the damage arising after the emer-
[1173] 175 ICSID, Case No. ARB/02/1, Decision on Liability, 3 October 2006, para. 260 (footnote omitted).
[1174] 176 Ibid., para. 264.
[1175] 177 ICSID, Ad Hoc Committee, Case No. ARB/99/7, Decision on the Application for Annulment
of the Award, 1 November 2006, para. 57, footnote 30.
[1176] 36 See footnote [1026] 25 above, para. 392.
Article 27 303
gency was over, and not for that taking place during the emergency period, the tribunal
expressed the following view:
Although [Article 27] does not specify the circumstances in which compensation should be payable
because of the range of possible scenarios, it has also been considered that this is a matter to
be agreed with the affected party. The Article thus does not exclude the possibility of an eventual
compensation for past events. The 2007 agreements between the Respondent and the Licensees
appear to confirm this interpretation … [1177] 37
[A/65/76, para. 27]
Ad hoc committee (under the ICSID Convention)
Continental Casualty Company v. The Argentine Republic
The ad hoc committee in Continental Casualty Company v. The Argentine Republic
noted that the applicant’s claim relied primarily on article 27 of the State responsibility
articles. The committee recalled that the “Tribunal [had] expressly found … that the effect
of the application of Article XI of the BIT [was] different to the effect of the application of
Article 25 (and by logical implication, of Article 27) of the ILC Articles”.[1178] 142
[A/68/72, para. 99]
International arbitral tribunal (under the ICSID Convention)
EDF International S.A. et al. v. Argentine Republic
The arbitral tribunal in EDF International S.A. et al. v. Argentine Republic found
that the respondent had failed to demonstrate, as required under article 27, that it had
“return[ed] to the pre-necessity status quo when possible, or compensate[d] Claimants for
damage suffered as a result of the relevant measures”.[1179] 143
[A/68/72, para. 100]
Urbaser S.A. and Consorcio De Aguas Bilbao Bizkaia, Bilbao Bizkaia UR Partzuergoa v.
the Argentine Republic
In Urbaser S.A. and Consorcio De Aguas Bilbao Bizkaia, Bilbao Bizkaia UR Partzuergoa
v. the Argentine Republic, the arbitral tribunal recognized articles 25 and 27 of the State
responsibility articles as reflecting “in large part general principles of international law”.[1180] 148
[A/74/83, p. 27]
[1177] 37 Ibid., para. 394 (footnote omitted).
[1178] 142 See footnote [1126] 136 above, para. 127.
[1179] 143 See footnote [167] 31 above, para. 1171.
[1180] 148 ICSID, Case No. ARB/07/26, Award, 8 December 2016, para. 709.
304 Article 27
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
The tribunal in Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, referred to the commentary
of Article 27 and stated that “the defence of necessity under international law lapses
‘if and to the extent that the circumstance precluding wrongfulness no longer exists’”.[1181] 149
[A/74/83, p. 28]
Eco Oro Minerals Corp. v. Republic of Colombia
The arbitral tribunal in Eco Oro Minerals Corp. v. Republic of Colombia referred to
articles 27, under which the invocation of a circumstance precluding wrongfulness is without
prejudice to the question of compensation for any material loss caused by the act in
question, and to article 36.[1182] 112 The tribunal therefore determined that under the applicable
investment treaty, “whilst a State may adopt or enforce a measure pursuant to the
stated objectives” in the treaty, “this does not prevent an investor claiming … that such a
measure entitles it to the payment of compensation”.[1183] 113
[A/77/74, p. 22]
[1181] 149 ICSID, Case No. ARB/14/4, Award, 31 August 2018, para. 8.47.
[1182] 112 See footnote [401] 51 above, para. 835.
[1183] 113 Ibid., para. 830.
305
Part Two
CONTENT OF THE INTERNATIONAL RESPONSIBILITY OF A STATE
(1) Whereas Part One of the articles defines the general conditions necessary for State
responsibility to arise, Part Two deals with the legal consequences for the responsible
State. It is true that a State may face legal consequences of conduct which is internationally
wrongful outside the sphere of State responsibility. For example, a material breach of
a treaty may give an injured State the right to terminate or suspend the treaty in whole or
in part.[1184] 422 The focus of Part Two, however, is on the new legal relationship which arises
upon the commission by a State of an internationally wrongful act. This constitutes the
substance or content of the international responsibility of a State under the articles.
(2) Within the sphere of State responsibility, the consequences which arise by virtue of
an internationally wrongful act of a State may be specifically provided for in such terms
as to exclude other consequences, in whole or in part.[1185] 423 In the absence of any specific
provision, however, international law attributes to the responsible State new obligations,
and in particular the obligation to make reparation for the harmful consequences flowing
from that act. The close link between the breach of an international obligation and its
immediate legal consequence in the obligation of reparation was recognized in article 36,
paragraph 2, of the PCIJ Statute, which was carried over without change as Article 36,
paragraph 2, of the ICJ Statute. In accordance with article 36, paragraph 2, States parties
to the Statute may recognize as compulsory the Court’s jurisdiction, inter alia, in all legal
disputes concerning:
(c) The existence of any fact which, if established, would constitute a breach of an international
obligation;
(d) The nature or extent of the reparation to be made for the breach of an international obligation.
Part One of the articles sets out the general legal rules applicable to the question identified
in subparagraph (c), while Part Two does the same for subparagraph (d).
(3) Part Two consists of three chapters. Chapter I sets out certain general principles and
specifies more precisely the scope of Part Two. Chapter II focuses on the forms of reparation
(restitution, compensation, satisfaction) and the relations between them. Chapter III
deals with the special situation which arises in case of a serious breach of an obligation
arising under a peremptory norm of general international law, and specifies certain legal
consequences of such breaches, both for the responsible State and for other States.
[1184] 422 1969 Vienna Convention [on the Law of Treaties], art. 60.
[1185] 423 On the lex specialis principle in relation to State responsibility, see article 55 and commentary.
306
Chapter I
GENERAL PRINCIPLES
Commentary
(1) Chapter I of Part Two comprises six articles, which define in general terms the legal
consequences of an internationally wrongful act of a State. Individual breaches of international
law can vary across a wide spectrum from the comparatively trivial or minor up to
cases which imperil the survival of communities and peoples, the territorial integrity and
political independence of States and the environment of whole regions. This may be true
whether the obligations in question are owed to one other State or to some or all States
or to the international community as a whole. But over and above the gravity or effects
of individual cases, the rules and institutions of State responsibility are significant for the
maintenance of respect for international law and for the achievement of the goals which
States advance through law-making at the international level.
(2) Within chapter I, article 28 is an introductory article, affirming the principle that legal
consequences are entailed whenever there is an internationally wrongful act of a State.
Article 29 indicates that these consequences are without prejudice to, and do not supplant,
the continued obligation of the responsible State to perform the obligation breached. This
point is carried further by , which deals with the obligation of cessation and assurances
or guarantees of non-repetition. Article 31 sets out the general obligation of reparation for
injury suffered in consequence of a breach of international law by a State. Article 32 makes
clear that the responsible State may not rely on its internal law to avoid the obligations of
cessation and reparation arising under Part Two. Finally, article 33 specifies the scope of
the Part, both in terms of the States to which obligations are owed and also in terms of
certain legal consequences which, because they accrue directly to persons or entities other
than States, are not covered by Parts Two or Three of the articles.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under,
part III, “Principal legal and other texts”,[1186] 150 which were relevant with regard to the
parties’ claims for relief.[1187] 151
[A/74/83, p. 28]
[1186] 150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.
[1187] 151 Ibid., para. 9.9.
307
Article 28. Legal consequences of an internationally wrongful act
The international responsibility of a State which is entailed by an internationally
wrongful act in accordance with the provisions of Part One involves legal consequences
as set out in this Part.
Commentary
(1) Article 28 serves an introductory function for Part Two and is expository in character.
It links the provisions of Part One which define when the international responsibility of
a State arises with the provisions of Part Two which set out the legal consequences which
responsibility for an internationally wrongful act involves.
(2) The core legal consequences of an internationally wrongful act set out in Part Two are
the obligations of the responsible State to cease the wrongful conduct (art. 30) and to make
full reparation for the injury caused by the internationally wrongful act (art. 31). Where the
internationally wrongful act constitutes a serious breach by the State of an obligation arising
under a peremptory norm of general international law, the breach may entail further
consequences both for the responsible State and for other States. In particular, all States in
such cases have obligations to cooperate to bring the breach to an end, not to recognize as
lawful the situation created by the breach and not to render aid or assistance to the responsible
State in maintaining the situation so created (arts. 40–41).
(3) Article 28 does not exclude the possibility that an internationally wrongful act may
involve legal consequences in the relations between the State responsible for that act and
persons or entities other than States. This follows from article 1, which covers all international
obligations of the State and not only those owed to other States. Thus, State responsibility
extends, for example, to human rights violations and other breaches of international
law where the primary beneficiary of the obligation breached is not a State. However, while
Part One applies to all the cases in which an internationally wrongful act may be committed
by a State, Part Two has a more limited scope. It does not apply to obligations of
reparation to the extent that these arise towards or are invoked by a person or entity other
than a State. In other words, the provisions of Part Two are without prejudice to any right,
arising from the international responsibility of a State, which may accrue directly to any
person or entity other than a State, and article 33 makes this clear.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Convention)
Ioan Micula and others v. Romania
The arbitral tribunal in Ioan Micula and others v. Romania, recognized with reference
to the commentary to article 28 that “the legal consequences of internationally wrongful
acts, may not apply, at least directly, to cases involving persons or entities other than
States”.[1188] 133 However, the tribunal further emphasized that “the ILC Articles reflect customary
international law in the matter of State responsibility, and to the extent that a mat-
[1188] 133 ICSID, Case No. ARB/05/20, Award, 11 December 2013, footnote 172.
308 Article 28
ter is not ruled by the treaties applicable to this case and that there are no circumstances
commanding otherwise, the Tribunal will turn to the ILC Articles for guidance”.[1189] 134
[A/71/80, para. 97]
Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State
of Bolivia
In Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational
State of Bolivia, while considering the applicability of Part Two of the State responsibility
articles to investor-State disputes, the arbitral tribunal noted that “the ILC Articles restate
customary international law and its rules on reparation have served as guidance to many
tribunals in investor-State disputes”.[1190] 135 This is despite the fact that, according to the
commentary to article 28, Part Two “does not apply to obligations of reparation to the extent
that these arise towards or are invoked by a person or entity other than a State”.[1191] 136
[A/71/80, para. 98]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under,
part III, “Principal legal and other texts”,[1192] 150 which were relevant with regard to the
parties’ claims for relief.[1193] 151
[A/74/83, p. 28]]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Crystallex International Corporation v. Bolivarian Republic of Venezuela
The arbitral tribunal in Crystallex International Corporation v. Bolivarian Republic of Venezuela
referred to the commentary to article 28 of the State responsibility articles when noting that it:
… is aware that Part Two of the ILC Articles, which sets out the legal consequences of internationally
wrongful acts, may not apply, at least directly, to cases involving persons or entities other than
States, such as in investment disputes as is the case here … That being said, the ILC Articles reflect
customary international law in the matter of state responsibility, and to the extent that a matter is
not addressed by the Treaty applicable to this case and that there are no circumstances commanding
otherwise, the Tribunal will turn to the ILC Articles for guidance.[1194] 153
[A/74/83, p. 28]
[1189] 134 Ibid., footnote 172.
[1190] 135 See footnote [65] 18 above, para. 555.
[1191] 136 Ibid., para. 555 (quoting para. (3) of the commentary to article 28).
[1192] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1193] [151 Ibid., para. 9.9.]
[1194] 153 ICSID (Additional Facility), Case No. ARB(AF)/11/2, Award, 4 April 2016, para. 848 and footnote 1242.
309
Article 29. Continued duty of performance
The legal consequences of an internationally wrongful act under this Part do not
affect the continued duty of the responsible State to perform the obligation breached.
Commentary
(1) Where a State commits a breach of an international obligation, questions as to the
restoration and future of the legal relationship thereby affected are central. Apart from the
question of reparation, two immediate issues arise, namely, the effect of the responsible
State’s conduct on the obligation which has been breached, and cessation of the breach if
it is continuing. The former question is dealt with by article 29, the latter by article 30.
(2) Article 29 states the general principle that the legal consequences of an internationally
wrongful act do not affect the continued duty of the State to perform the obligation it
has breached. As a result of the internationally wrongful act, a new set of legal relations is
established between the responsible State and the State or States to whom the international
obligation is owed. But this does not mean that the pre-existing legal relation established
by the primary obligation disappears. Even if the responsible State complies with its obligations
under Part Two to cease the wrongful conduct and to make full reparation for the
injury caused, it is not relieved thereby of the duty to perform the obligation breached. The
continuing obligation to perform an international obligation, notwithstanding a breach,
underlies the concept of a continuing wrongful act (see article 14) and the obligation of
cessation (see subparagraph (a) of article 30).
(3) It is true that in some situations the ultimate effect of a breach of an obligation may be
to put an end to the obligation itself. For example, a State injured by a material breach of a
bilateral treaty may elect to terminate the treaty.[1195] 424 But as the relevant provisions of the
1969 Vienna Convention make clear, the mere fact of a breach and even of a repudiation of
a treaty does not terminate the treaty.[1196] 425 It is a matter for the injured State to react to the
breach to the extent permitted by the Convention. The injured State may have no interest
in terminating the treaty as distinct from calling for its continued performance. Where
a treaty is duly terminated for breach, the termination does not affect legal relationships
which have accrued under the treaty prior to its termination, including the obligation to
make reparation for any breach.[1197] 426 A breach of an obligation under general international
law is even less likely to affect the underlying obligation, and indeed will never do
so as such. By contrast, the secondary legal relation of State responsibility arises on the
occurrence of a breach and without any requirement of invocation by the injured State.
[1195] 424 See footnote [1184] 422 above.
[1196] 425 Indeed, in the Gabčíkovo-Nagymaros Project case, ICJ held that continuing material
breaches by both parties did not have the effect of terminating the 1977 Treaty on the Construction
and Operation of the Gabčíkovo-Nagymaros Barrage System (footnote [31] 37 above), p. 68, para. 114.
[1197] 426 See, e.g., “Rainbow Warrior” (footnote [40] 46 above), p. 266, citing Lord McNair (dissenting)
in Ambatielos, Preliminary Objection, I.C.J. Reports 1952, p. 28, at p. 63. On that particular point the
Court itself agreed, ibid., p. 45. In the Gabčíkovo-Nagymaros Project case, Hungary accepted that the legal
consequences of its termination of the 1977 Treaty on the Construction and Operation of the Gabčíkovo-
Nagymaros Barrage System on account of the breach by Czechoslovakia were prospective only, and did
not affect the accrued rights of either party (footnote [31] 37 above), pp. 73–74, paras. 125–127. The Court
held that the Treaty was still in force, and therefore did not address the question.
310 Article 29
(4) Article 29 does not need to deal with such contingencies. All it provides is that the legal
consequences of an internationally wrongful act within the field of State responsibility do not
affect any continuing duty to comply with the obligation which has been breached. Whether
and to what extent that obligation subsists despite the breach is a matter not regulated by the
law of State responsibility but by the rules concerning the relevant primary obligation.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Arbitration Institute of the Stockholm Chamber of Commerce
Mohammad Ammar Al-Bahloul v. The Republic of Tajikistan
In Mohammad Ammar Al-Bahloul v. The Republic of Tajikistan, the arbitral tribunal
cited article 29 as authority for the proposition that “it is a generally recognized international
law principle that, where the breach is of a continuing character, a Contracting Party
has a continuing duty to perform the obligation breached”.[1198] 144
[A/68/72, para. 101]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under,
part III, “Principal legal and other texts”,[1199] 150 which were relevant with regard to the
parties’ claims for relief.[1200] 151
[A/74/83, p. 28]]
[1198] 144 SCC, Case No. V (064/2008), Final Award, 8 June 2010, para. 48.
[1199] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1200] [151 Ibid., para. 9.9.]
311
Article 30. Cessation and non-repetition
The State responsible for the internationally wrongful act is under an obligation:
(a) to cease that act, if it is continuing;
(b) to offer appropriate assurances and guarantees of non-repetition, if circumstances
so require.
Commentary
(1) Article 30 deals with two separate but linked issues raised by the breach of an international
obligation: the cessation of the wrongful conduct and the offer of assurances and
guarantees of non-repetition by the responsible State if circumstances so require. Both are
aspects of the restoration and repair of the legal relationship affected by the breach. Cessation
is, as it were, the negative aspect of future performance, concerned with securing an
end to continuing wrongful conduct, whereas assurances and guarantees serve a preventive
function and may be described as a positive reinforcement of future performance. The
continuation in force of the underlying obligation is a necessary assumption of both, since
if the obligation has ceased following its breach, the question of cessation does not arise
and no assurances and guarantees can be relevant.[1201] 427
(2) Subparagraph (a) of article 30 deals with the obligation of the State responsible for the
internationally wrongful act to cease the wrongful conduct. In accordance with article 2,
the word “act” covers both acts and omissions. Cessation is thus relevant to all wrongful
acts extending in time “regardless of whether the conduct of a State is an action or an omission
… since there may be cessation consisting in abstaining from certain actions”.[1202] 428
(3) The tribunal in the “Rainbow Warrior” arbitration stressed “two essential conditions
intimately linked” for the requirement of cessation of wrongful conduct to arise, “namely
that the wrongful act has a continuing character and that the violated rule is still in force
at the time in which the order is issued”.[1203] 429 While the obligation to cease wrongful
conduct will arise most commonly in the case of a continuing wrongful act,[1204] 430 article
30 also encompasses situations where a State has violated an obligation on a series of
occasions, implying the possibility of further repetitions. The phrase “if it is continuing”
at the end of subparagraph (a) of the article is intended to cover both situations.
(4) Cessation of conduct in breach of an international obligation is the first requirement
in eliminating the consequences of wrongful conduct. With reparation, it is one of the two
general consequences of an internationally wrongful act. Cessation is often the main focus
of the controversy produced by conduct in breach of an international obligation.[1205] 431 It is
[1201] 427 1969 Vienna Convention [on the Law of Treaties], art. 70, para. 1.
[1202] 428 “Rainbow Warrior” (footnote [40] 46 above), p. 270, para. 113.
[1203] 429 Ibid., para. 114.
[1204] 430 For the concept of a continuing wrongful act, see paragraphs (3) to (11) of the commentary
to article 14.
[1205] 431 The focus of the WTO dispute settlement mechanism is on cessation rather than reparation:
Marrakesh Agreement establishing the World Trade Organization, annex 2 (Understanding on
Rules and Procedures governing the Settlement of Disputes), especially article 3, paragraph 7, which provides
for compensation “only if the immediate withdrawal of the measure is impracticable and as a temporary
measure pending the withdrawal of the measure which is inconsistent with a covered agreement”.
312 Article 30
frequently demanded not only by States but also by the organs of international organizations
such as the General Assembly and Security Council in the face of serious breaches of
international law. By contrast, reparation, important though it is in many cases, may not
be the central issue in a dispute between States as to questions of responsibility.[1206] 432
(5) The function of cessation is to put an end to a violation of international law and to
safeguard the continuing validity and effectiveness of the underlying primary rule. The
responsible State’s obligation of cessation thus protects both the interests of the injured
State or States and the interests of the international community as a whole in the preservation
of, and reliance on, the rule of law.
(6) There are several reasons for treating cessation as more than simply a function of the
duty to comply with the primary obligation. First, the question of cessation only arises
in the event of a breach. What must then occur depends not only on the interpretation
of the primary obligation but also on the secondary rules relating to remedies, and it is
appropriate that they are dealt with, at least in general terms, in articles concerning the
consequences of an internationally wrongful act. Secondly, continuing wrongful acts are
a common feature of cases involving State responsibility and are specifically dealt with in
article 14. There is a need to spell out the consequences of such acts in Part Two.
(7) The question of cessation often arises in close connection with that of reparation, and
particularly restitution. The result of cessation may be indistinguishable from restitution,
for example in cases involving the freeing of hostages or the return of objects or premises
seized. Nonetheless, the two must be distinguished. Unlike restitution, cessation is
not subject to limitations relating to proportionality.[1207] 433 It may give rise to a continuing
obligation, even when literal return to the status quo ante is excluded or can only be
achieved in an approximate way.
(8) The difficulty of distinguishing between cessation and restitution is illustrated by the
“Rainbow Warrior” arbitration. New Zealand sought the return of the two agents to detention
on the island of Hao. According to New Zealand, France was obliged to return them to
and to detain them on the island for the balance of the three years; that obligation had not
expired since time spent off the island was not to be counted for that purpose. The tribunal
disagreed. In its view, the obligation was for a fixed term which had expired, and there
was no question of cessation.[1208] 434 Evidently, the return of the two agents to the island
was of no use to New Zealand if there was no continuing obligation on the part of France
to keep them there. Thus, a return to the status quo ante may be of little or no value if the
obligation breached no longer exists. Conversely, no option may exist for an injured State
to renounce restitution if the continued performance of the obligation breached is incumbent
upon the responsible State and the former State is not competent to release it from
On the distinction between cessation and reparation for WTO purposes, see, e.g., Report of the Panel,
Australia-Subsidies Provided to Producers and Exporters of Automotive Leather (WT/DS126/RW),
21 January 2000, para. 6.49.
[1206] 432 For cases where ICJ has recognized that this may be so, see, e.g., Fisheries Jurisdiction
(Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 175, at pp. 201–205,
paras. 65–76; and Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 81, para. 153. See also C. D.
Gray, Judicial Remedies in International Law (Oxford, Clarendon Press, 1987), pp. 77–92.
[1207] 433 See article 35 (b) and commentary.
[1208] 434 UNRIAA, vol. XX (Sales No. E/F.93.V3), p. 217, at p. 266, para. 105 (1990).
Article 30 313
such performance. The distinction between cessation and restitution may have important
consequences in terms of the obligations of the States concerned.
(9) Subparagraph (b) of article 30 deals with the obligation of the responsible State to
offer appropriate assurances and guarantees of non-repetition, if circumstances so require.
Assurances and guarantees are concerned with the restoration of confidence in a continuing
relationship, although they involve much more flexibility than cessation and are not
required in all cases. They are most commonly sought when the injured State has reason
to believe that the mere restoration of the pre-existing situation does not protect it satisfactorily.
For example, following repeated demonstrations against the United States Embassy
in Moscow from 1964 to 1965, President Johnson stated that:
The U. S. Government must insist that its diplomatic establishments and personnel be given the
protection which is required by international law and custom and which is necessary for the conduct
of diplomatic relations between states. Expressions of regret and compensation are no substitute for
adequate protection.[1209] 435
Such demands are not always expressed in terms of assurances or guarantees, but they share
the characteristics of being future-looking and concerned with other potential breaches.
They focus on prevention rather than reparation and they are included in article 30.
(10) The question whether the obligation to offer assurances or guarantees of non-repetition
may be a legal consequence of an internationally wrongful act was debated in the
LaGrand case. This concerned an admitted failure of consular notification contrary to
article 36 of the Vienna Convention on Consular Relations. In its fourth submission Germany
sought both general and specific assurances and guarantees as to the means of future
compliance with the Convention. The United States argued that to give such assurances
or guarantees went beyond the scope of the obligations in the Convention and that ICJ
lacked jurisdiction to require them. In any event, formal assurances and guarantees were
unprecedented and should not be required. Germany’s entitlement to a remedy did not
extend beyond an apology, which the United States had given. Alternatively, no assurances
or guarantees were appropriate in the light of the extensive action it had taken to ensure
that federal and State officials would in future comply with the Convention. On the question
of jurisdiction, the Court held
that a dispute regarding the appropriate remedies for the violation of the Convention alleged by
Germany is a dispute that arises out of the interpretation or application of the Convention and thus
is within the Court’s jurisdiction. Where jurisdiction exists over a dispute on a particular matter,
no separate basis for jurisdiction is required by the Court to consider the remedies a party has
requested for the breach of the obligation … Consequently, the Court has jurisdiction in the present
case with respect to the fourth submission of Germany.[1210] 436
On the question of appropriateness, the Court noted that an apology would not be sufficient
in any case in which a foreign national had been “subjected to prolonged detention
or sentenced to severe penalties” following a failure of consular notification.[1211] 437 But in
[1209] 435 Reprinted in ILM, vol. 4, No. 2 (July 1965), p. 698.
[1210] 436 LaGrand, Judgment (footnote [236] 119 above), p. 485, para. 48, citing Case concerning the
Factory at Chorzów, Jurisdiction (footnote [28] 34 above).
[1211] 437 LaGrand, Judgment (footnote [236] 119 above), p. 512, para. 123.
314 Article 30
the light of information provided by the United States as to the steps taken to comply in
future, the Court held:
that the commitment expressed by the United States to ensure implementation of the specific measures
adopted in performance of its obligations under Article 36, paragraph 1 (b), must be regarded
as meeting Germany’s request for a general assurance of non-repetition.[1212] 438
As to the specific assurances sought by Germany, the Court limited itself to stating that:
if the United States, notwithstanding its commitment referred to … should fail in its obligation of
consular notification to the detriment of German nationals, an apology would not suffice in cases
where the individuals concerned have been subjected to prolonged detention or convicted and sentenced
to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon
the United States to allow the review and reconsideration of the conviction and sentence by taking
account of the violation of the rights set forth in the Convention.[1213] 439
The Court thus upheld its jurisdiction on Germany’s fourth submission and responded to it in
the operative part. It did not, however, discuss the legal basis for assurances of non-repetition.
(11) Assurances or guarantees of non-repetition may be sought by way of satisfaction (e.g.
the repeal of the legislation which allowed the breach to occur) and there is thus some overlap
between the two in practice.[1214] 440 However, they are better treated as an aspect of the
continuation and repair of the legal relationship affected by the breach. Where assurances
and guarantees of non-repetition are sought by an injured State, the question is essentially
the reinforcement of a continuing legal relationship and the focus is on the future, not the
past. In addition, assurances and guarantees of non-repetition may be sought by a State
other than an injured State in accordance with article 48.
(12) Assurances are normally given verbally, while guarantees of non-repetition involve
something more—for example, preventive measures to be taken by the responsible
State designed to avoid repetition of the breach. With regard to the kind of guarantees
that may be requested, international practice is not uniform. The injured State usually
demands either safeguards against the repetition of the wrongful act without any specification
of the form they are to take[1215] 441 or, when the wrongful act affects its nationals,
assurances of better protection of persons and property.[1216] 442 In the LaGrand case, ICJ
spelled out with some specificity the obligation that would arise for the United States
from a future breach, but added that “[t]his obligation can be carried out in various ways.
The choice of means must be left to the United States”.[1217] 443 It noted further that a State
[1212] 438 Ibid., p. 513, para. 124; see also the operative part, p. 516, para. 128 (6).
[1213] 439 Ibid., pp. 513–514, para. 125. See also paragraph 127 and the operative part (para. 128 (7)).
[1214] 440 See paragraph (5) of the commentary to article 36.
[1215] 441 In the “Dogger Bank” incident in 1904, the United Kingdom sought “security against the
recurrence of such intolerable incidents”, G. F. de Martens, Nouveau recueil général de traités, 2nd series,
vol. XXXIII, p. 642. See also the exchange of notes between China and Indonesia following the attack in
March 1966 against the Chinese Consulate General in Jakarta, in which the Chinese Deputy Minister
for Foreign Affairs sought a guarantee that such incidents would not be repeated in the future, RGDIP,
vol. 70 (1966), pp. 1013 et seq.
[1216] 442 Such assurances were given in the Doane incident (1886), Moore, Digest, vol. VI, pp. 345–346.
[1217] 443 LaGrand, Judgment (footnote [236] 119 above), p. 513, para. 125.
Article 30 315
may not be in a position to offer a firm guarantee of non—repetition.[1218] 444 Whether it
could properly do so would depend on the nature of the obligation in question.
(13) In some cases, the injured State may ask the responsible State to adopt specific measures
or to act in a specified way in order to avoid repetition. Sometimes the injured State
merely seeks assurances from the responsible State that, in future, it will respect the rights
of the injured State.[1219] 445 In other cases, the injured State requires specific instructions to
be given,[1220] 446 or other specific conduct to be taken.[1221] 447 But assurances and guarantees
of non-repetition will not always be appropriate, even if demanded. Much will depend on
the circumstances of the case, including the nature of the obligation and of the breach.
The rather exceptional character of the measures is indicated by the words “if the circumstances
so require” at the end of subparagraph (b). The obligation of the responsible State
with respect to assurances and guarantees of non-repetition is formulated in flexible terms
in order to prevent the kinds of abusive or excessive claims which characterized some
demands for assurances and guarantees by States in the past.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal
Case concerning the difference between New Zealand and France concerning the interpretation
or application of two agreements concluded on 9 July 1986 between the two States
and which related to the problems arising from the Rainbow Warrior Affair
In its 1990 award in the Rainbow Warrior case, the arbitral tribunal, having noted that
France had alleged that New Zealand was demanding, rather than restitutio in integrum,
the cessation of the denounced behaviour, made reference to the concept of cessation, and
its distinction with restitution, with reference to the reports submitted to the International
Law Commission by Special Rapporteurs Riphagen and Arangio-Ruiz.[1222] 178 The arbitral
[1218] 444 Ibid., para. 124.
[1219] 445 See, e.g., the 1901 case in which the Ottoman Empire gave a formal assurance that the British,
Austrian and French postal services would henceforth operate freely in its territory, RGDIP, vol. 8
(1901), p. 777, at pp. 788 and 792.
[1220] 446 See, e.g., the incidents involving the “Herzog” and the “Bundesrath”, two German ships
seized by the British Navy in December 1899 and January 1900, during the Boer war, in which Germany
drew the attention of Great Britain to “the necessity for issuing instructions to the British Naval Commanders
to molest no German merchantmen in places not in the vicinity of the seat of war”, Martens,
op. cit. (footnote [1215] 441 above), vol. XXIX, p. 456 at p. 486.
[1221] 447 In the Trail Smelter case (footnote [817] 253 above), the arbitral tribunal specified measures
to be adopted by the Trail Smelter, including measures designed to “prevent future significant fumigations
in the United States” (p. 1934). Requests to modify or repeal legislation are frequently made by
international bodies. See, e.g., the decisions of the Human Rights Committee: Torres Ramirez v. Uruguay,
decision of 23 July 1980, Official Records of the General Assembly, Thirty-fifth Session, Supplement
No. 40 (A/35/40), p. 126, para. 19; Lanza v. Uruguay, decision of 3 April 1980, ibid., p. 119, para. 17; and
Dermit Barbato v. Uruguay, decision of 21 October 1982, ibid., Thirty-eighth Session, Supplement No. 40
(A/38/40), p. 133, para. 11.
[1222] 178 At the time of the said award, the draft articles on the legal consequences of the commission
of an internationally wrongful act were still under consideration, on the basis of the reports by Special
316 Article 30
tribunal observed in particular that, by inserting a separate article concerning cessation, the
International Law Commission had endorsed the view of Special Rapporteur Arangio-Ruiz
that “cessation has inherent properties of its own which distinguish it from reparation”:
Recent studies on State responsibility undertaken by the Special Rapporteurs of the International
Law Commission have led to an analysis in depth of the distinction between an order for the cessation
of the unlawful act and restitutio in integrum. Professor Riphagen observed that in numerous
cases ‘stopping the breach was involved, rather than reparation or restitutio in integrum stricto
sensu’ (Yearbook … 1981, vol. II, Part One, document A/CN.4/342 and Add.1–4, para. 76).
The present Special Rapporteur, Professor Arangio-Ruiz, has proposed a distinction between the
two remedies (International Law Commission report to the General Assembly for 1988, para. 538).
…
The International Law Commission has accepted the insertion of an article separate from the provisions
on reparation and dealing with the subject of cessation, thus endorsing the view of the Special
Rapporteur Arangio-Ruiz that cessation has inherent properties of its own which distinguish it from
reparation (International Law Commission report to the General Assembly for 1989, para. 259).
Special Rapporteur Arangio-Ruiz has also pointed out that the provision on cessation comprises
all unlawful acts extending in time, regardless of whether the conduct of a State is an action or an
omission (International Law Commission report to the General Assembly for 1988, para. 537).
This is right, since there may be cessation consisting in abstaining from certain actions—such as
supporting the ‘contras’—or consisting in positive conduct, such as releasing the United States hostages
in Teheran.
…
Undoubtedly the order requested by the New Zealand Government for the return of the two agents
would really be an order for the cessation of the wrongful omission rather than a restitutio in integrum.
This characterization of the New Zealand request is relevant to the Tribunal’s decision, since
in those cases where material restitution of an object is possible, the expiry of a treaty obligation
may not be, by itself, an obstacle for ordering restitution.[1223] 179
[A/62/62, para. 101]
International arbitral tribunal
Libyan Arab Foreign Investment Company (LAFICO) and the Republic of Burundi
In its 1991 award, the arbitral tribunal established to hear the LAFICO-Burundi case,
in order to determine the consequences for the parties of Burundi’s responsibility in the
case, quoted draft article 6 of Part Two of the draft articles (“Content, forms and degrees
of international responsibility”),[1224] 180 as provisionally adopted by the International Law
Rapporteurs Riphagen and Arangio‑Ruiz. The provisions finally adopted by the International Law Commission
in 2001 on cessation and restitution are, respectively, articles 30 and 35.
[1223] 179 See footnote [40] 46 above.
[1224] 180 This provision was amended and incorporated in article 30(a) finally adopted by the International
Law Commission in 2001. Draft article 6 of Part Two read as follows:
Article 30 317
Commission. It considered that the nature as a rule of customary international law of this
provision concerning the obligation to put an end to a wrongful act “is not in doubt”.[1225] 181
[A/62/62, para. 102]
International Court of Justice
Jurisdictional Immunities of the State (Germany v. Italy)
In its judgment in Jurisdictional Immunities of the State (Germany v. Italy), the International
Court of Justice, in response to a request by Germany that the Court “order Italy
to take, by means of its own choosing, any and all steps to ensure that all the decisions of
its courts and other judicial authorities infringing Germany’s sovereign immunity become
unenforceable”,[1226] 145 indicated that:
[t]his is to be understood as implying that the relevant decisions should cease to have effect.
According to general international law on the responsibility of States for internationally wrongful
acts, as expressed in this respect by Article 30 (a) of the International Law Commission’s Articles on
the subject, the State responsible for an internationally wrongful act is under an obligation to cease
that act, if it is continuing.[1227] 146
[A/68/72, para. 102]
International arbitral tribunal (under UNCITRAL Rules)
Valeri Belokon v. Kyrgyz Republic
In Valeri Belokon v. Kyrgyz Republic, the arbitral tribunal noted that, while it had
“been directed to the ILC Articles on State Responsibility with regards to questions of
attribution (Articles 4 and 8), no reference appears to have been made to this Tribunal’s
authority to grant Satisfaction (Article 37) or Assurances (Article 30) of the form
requested”.[1228] 137 It therefore held that its authority to grant the requested relief under
international law had “not been sufficiently established” and so declined to grant it.[1229] 138
[A/71/80, para. 99]
Article 6
Cessation of wrongful conduct
A State whose conduct constitutes an internationally wrongful act having a continuing
character is under the obligation to cease that conduct, without prejudice to the responsibility
it has already incurred.
[1225] 181 See footnote [824] 127 above.
[1226] 145 See footnote [788] 104 above, paras. 15 and 137.
[1227] 146 Ibid., para. 137.
[1228] 137 Award, 24 October 2014, para. 275.
[1229] 138 Ibid., para. 276.
318 Article 30
[Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under,
part III, “Principal legal and other texts”,[1230] 150 which were relevant with regard to the
parties’ claims for relief.[1231] 151
[A/74/83, p. 28]]
International arbitral tribunal (under the ICSID Convention)
Mobil Investments Canada Inc. v. Government of Canada
In Mobil Investments Canada Inc. v. Government of Canada, the arbitral tribunal
stated that:
[o]nce a Chapter Eleven tribunal found that the imposition and enforcement of the 2004 Guidelines
was contrary to Article 1106 [of NAFTA], it is difficult to see how Canada could discharge its duty
to perform its obligations under Article 1106 in good faith while still enforcing the Guidelines. That
conclusion is reinforced by the ILC Articles on State Responsibility, Article 30 of which provides
that a State which is responsible for an internationally wrongful act is under an obligation to cease
that act if it is a continuing one.[1232] 154
[A/74/83, p. 28]
European Court of Human Rights
Case of Georgia v. Russia (I)
In Case of Georgia v. Russia (I), the European Court of Human Rights stated
[t]hat the just-satisfaction rule [under the European Convention on Human Rights] is directly
derived from the principles of public international law relating to State liability … Those principles
include both the obligation on the State responsible for the internationally wrongful act ‘to cease
that act, if it is continuing’ and the obligation to ‘make full reparation for the injury caused by the
internationally wrongful act’, as laid down in Articles 30 and 31 respectively of the Articles on
Responsibility of States for Internationally Wrongful Acts.[1233] 155
[A/74/83, p. 29]
International arbitral tribunal (under the ICSID Convention)
Pawlowski AG and Project Sever s.r.o. v. Czech Republic
In Pawlowski AG and Project Sever s.r.o. v. Czech Republic, the arbitral tribunal noted
that under article 30, “the first obligation [of States] arising from internationally wrong-
[1230] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1231] [151 Ibid., para. 9.9.]
[1232] 154 ICSID, Case No. ARB/15/6, Decision on Jurisdiction and Admissibility, 13 July 2018, para. 165.
[1233] 155 ECHR, Grand Chamber, Application No. 13255/07, Judgment, 31 January 2019, para. 54.
Article 30 319
ful acts” was “to cease the act, if it is ongoing”, and to “offer appropriate assurances and
guarantees of non-repetition, if circumstances so require”.[1234] 114
[A/77/74, p. 22]
[1234] 114 See footnote [402] 52 above, para. 723.
320
Article 31. Reparation
1. The responsible State is under an obligation to make full reparation for the
injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally
wrongful act of a State.
Commentary
(1) The obligation to make full reparation is the second general obligation of the responsible
State consequent upon the commission of an internationally wrongful act. The general
principle of the consequences of the commission of an internationally wrongful act was
stated by PCIJ in the Factory at Chorzów case:
It is a principle of international law that the breach of an engagement involves an obligation to
make reparation in an adequate form. Reparation therefore is the indispensable complement of a
failure to apply a convention and there is no necessity for this to be stated in the convention itself.
Differences relating to reparations, which may be due by reason of failure to apply a convention, are
consequently differences relating to its application.[1235] 448
In this passage, which has been cited and applied on many occasions,[1236] 449 the Court was
using the term “reparation” in its most general sense. It was rejecting a Polish argument
that jurisdiction to interpret and apply a treaty did not entail jurisdiction to deal with
disputes over the form and quantum of reparation to be made. By that stage of the dispute,
Germany was no longer seeking for its national the return of the factory in question or of
the property seized with it.
(2) In a subsequent phase of the same case, the Court went on to specify in more detail
the content of the obligation of reparation. It said:
The essential principle contained in the actual notion of an illegal act—a principle which seems to
be established by international practice and in particular by the decisions of arbitral tribunals—is
that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish
the situation which would, in all probability, have existed if that act had not been committed.
Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which
a restitution in kind would bear; the award, if need be, of damages for loss sustained which would
not be covered by restitution in kind or payment in place of it—such are the principles which should
serve to determine the amount of compensation due for an act contrary to international law.[1237] 450
In the first sentence, the Court gave a general definition of reparation, emphasizing that
its function was the re-establishment of the situation affected by the breach.[1238] 451 In the
second sentence, it dealt with that aspect of reparation encompassed by “compensation” for
an unlawful act—that is, restitution or its value, and in addition damages for loss sustained
as a result of the wrongful act.
[1235] 448 Case concerning the Factory at Chorzów, Jurisdiction (footnote [28] 34 above).
[1236] 449 Cf. the ICJ reference to this decision in LaGrand, Judgment (footnote [236] 119 above),
p. 485, para. 48.
[1237] 450 Case concerning the Factory at Chorzów, Merits (footnote [28] 34 above), p. 47.
[1238] 451 Cf. P.-M. Dupuy, “Le fait générateur de la responsabilité internationale des États”, Collected
Courses … 1984–V (Dordrecht, Martinus Nijhoff, 1986), vol. 188, p. 9, at p. 94, who uses the term restauration.
Article 31 321
(3) The obligation placed on the responsible State by article 31 is to make “full reparation”
in the Factory at Chorzów sense. In other words, the responsible State must endeavour to
“wipe out all the consequences of the illegal act and reestablish the situation which would,
in all probability, have existed if that act had not been committed”[1239] 452 through the provision
of one or more of the forms of reparation set out in chapter II of this part.
(4) The general obligation of reparation is formulated in article 31 as the immediate
corollary of a State’s responsibility, i.e. as an obligation of the responsible State resulting
from the breach, rather than as a right of an injured State or States. This formulation
avoids the difficulties that might arise where the same obligation is owed simultaneously
to several, many or all States, only a few of which are specially affected by the breach. But
quite apart from the questions raised when there is more than one State entitled to invoke
responsibility,[1240] 453 the general obligation of reparation arises automatically upon commission
of an internationally wrongful act and is not, as such, contingent upon a demand
or protest by any State, even if the form which reparation should take in the circumstances
may depend on the response of the injured State or States.
(5) The responsible State’s obligation to make full reparation relates to the “injury caused
by the internationally wrongful act”. The notion of “injury”, defined in paragraph 2, is to be
understood as including any damage caused by that act. In particular, in accordance with
paragraph 2, “injury” includes any material or moral damage caused thereby. This formulation
is intended both as inclusive, covering both material and moral damage broadly
understood, and as limitative, excluding merely abstract concerns or general interests of a
State which is individually unaffected by the breach.[1241] 454 “Material” damage here refers
to damage to property or other interests of the State and its nationals which is assessable
in financial terms. “Moral” damage includes such items as individual pain and suffering,
loss of loved ones or personal affront associated with an intrusion on one’s home or private
life. Questions of reparation for such forms of damage are dealt with in more detail in
chapter II of this Part.[1242] 455
(6) The question whether damage to a protected interest is a necessary element of an
internationally wrongful act has already been discussed.[1243] 456 There is in general no such
requirement; rather this is a matter which is determined by the relevant primary rule. In
some cases, the gist of a wrong is the causing of actual harm to another State. In some
cases what matters is the failure to take necessary precautions to prevent harm even if in
the event no harm occurs. In some cases there is an outright commitment to perform a
[1239] 452 Case concerning the Factory at Chorzów, Merits (footnote [28] 34 above), p. 47.
[1240] 453 For the States entitled to invoke responsibility, see articles 42 and 48 and commentaries.
For the situation where there is a plurality of injured States, see article 46 and commentary.
[1241] 454 Although not individually injured, such States may be entitled to invoke responsibility
in respect of breaches of certain classes of obligation in the general interest, pursuant to article 48.
Generally on notions of injury and damage, see B. Bollecker-Stern, Le préjudice dans la théorie de la
responsabilité internationale (Paris, Pedone, 1973); B. Graefrath, “Responsibility and damages caused:
relationship between responsibility and damages”, Collected Courses … 1984–II (The Hague, Nijhoff,
1985), vol. 185, p. 95; A. Tanzi, “Is damage a distinct condition for the existence of an internationally
wrongful act?”, Simma and Spinedi, eds., op. cit. (footnote [689] 175 above), p. 1; and Brownlie, System
of the Law of Nations … (footnote [195] 92 above), pp. 53–88.
[1242] 455 See especially article 36 and commentary.
[1243] 456 See paragraph (9) of the commentary to article 2.
322 Article 31
specified act, e.g. to incorporate uniform rules into internal law. In each case the primary
obligation will determine what is required. Hence, article 12 defines a breach of an international
obligation as a failure to conform with an obligation.
(7) As a corollary there is no general requirement, over and above any requirements laid
down by the relevant primary obligation, that a State should have suffered material harm
or damage before it can seek reparation for a breach. The existence of actual damage will be
highly relevant to the form and quantum of reparation. But there is no general requirement
of material harm or damage for a State to be entitled to seek some form of reparation. In the
“Rainbow Warrior” arbitration it was initially argued that “in the theory of international
responsibility, damage is necessary to provide a basis for liability to make reparation”, but
the parties subsequently agreed that:
Unlawful action against non-material interests, such as acts affecting the honor, dignity or prestige
of a State, entitle the victim State to receive adequate reparation, even if those acts have not resulted
in a pecuniary or material loss for the claimant State.[1244] 457
The tribunal held that the breach by France had “provoked indignation and public outrage
in New Zealand and caused a new, additional non-material damage … of a moral, political
and legal nature, resulting from the affront to the dignity and prestige not only of New
Zealand as such, but of its highest judicial and executive authorities as well”.[1245] 458
(8) Where two States have agreed to engage in particular conduct, the failure by one State
to perform the obligation necessarily concerns the other. A promise has been broken and
the right of the other State to performance correspondingly infringed. For the secondary
rules of State responsibility to intervene at this stage and to prescribe that there is no
responsibility because no identifiable harm or damage has occurred would be unwarranted.
If the parties had wished to commit themselves to that formulation of the obligation
they could have done so. In many cases, the damage that may follow from a breach (e.g.
harm to a fishery from fishing in the closed season, harm to the environment by emissions
exceeding the prescribed limit, abstraction from a river of more than the permitted
amount) may be distant, contingent or uncertain. Nonetheless, States may enter into
immediate and unconditional commitments in their mutual long-term interest in such
fields. Accordingly, article 31 defines “injury” in a broad and inclusive way, leaving it to
the primary obligations to specify what is required in each case.
(9) Paragraph 2 addresses a further issue, namely the question of a causal link between
the internationally wrongful act and the injury. It is only “[i]njury … caused by the internationally
wrongful act of a State” for which full reparation must be made. This phrase is
used to make clear that the subject matter of reparation is, globally, the injury resulting
from and ascribable to the wrongful act, rather than any and all consequences flowing
from an internationally wrongful act.
(10) The allocation of injury or loss to a wrongful act is, in principle, a legal and not only
a historical or causal process. Various terms are used to describe the link which must
exist between the wrongful act and the injury in order for the obligation of reparation to
arise. For example, reference may be made to losses “attributable to [the wrongful] act as
[1244] 457 “Rainbow Warrior” (footnote [40] 46 above), pp. 266–267, paras. 107 and 109.
[1245] 458 Ibid., p. 267, para. 110.
Article 31 323
a proximate cause”,[1246] 459 or to damage which is “too indirect, remote, and uncertain to
be appraised”,[1247]460 or to “any direct loss, damage—including environmental damage
and the depletion of natural resources—or injury to foreign Governments, nationals and
corporations as a result of” the wrongful act.[1248] 461 Thus, causality in fact is a necessary
but not a sufficient condition for reparation. There is a further element, associated
with the exclusion of injury that is too “remote” or “consequential” to be the subject of
reparation. In some cases, the criterion of “directness” may be used,[1249] 462 in others
“foreseeability”[1250] 463 or “proximity”.[1251] 464 But other factors may also be relevant: for
example, whether State organs deliberately caused the harm in question, or whether the
harm caused was within the ambit of the rule which was breached, having regard to the
purpose of that rule.[1252] 465 In other words, the requirement of a causal link is not necessarily
the same in relation to every breach of an international obligation. In international
as in national law, the question of remoteness of damage “is not a part of the law which
can be satisfactorily solved by search for a single verbal formula”.[1253]466 The notion of a
sufficient causal link which is not too remote is embodied in the general requirement in
article 31 that the injury should be in consequence of the wrongful act, but without the
addition of any particular qualifying phrase.
[1246] 459 See United States-German Mixed Claims Commission, Administrative Decision No. II,
UNRIAA, vol. VII (Sales No. 1956.V.5), p. 23, at p. 30 (1923). See also Dix (footnote [692] 178 above),
p. 121, and the Canadian statement of claim following the disintegration of the Cosmos 954 Soviet nuclear-
powered satellite over its territory in 1978, ILM, vol. 18 (1979), p. 907, para. 23.
[1247] 460 See the Trail Smelter arbitration (footnote [817] 253 above), p. 1931. See also A. Hauriou, “Les
dommages indirects dans les arbitrages internationaux”, RGDIP, vol. 31 (1924), p. 209, citing the “Alabama”
arbitration as the most striking application of the rule excluding “indirect” damage (footnote [146] 87 above).
[1248] 461 Security Council resolution 687 (1991) of 3 April 1991, para. 16. This was a resolution
adopted with reference to Chapter VII of the Charter of the United Nations, but it is expressed to reflect
Iraq’s liability “under international law … as a result of its unlawful invasion and occupation of Kuwait”.
UNCC and its Governing Council have provided some guidance on the interpretation of the requirements
of directness and causation under paragraph 16. See, e.g., Recommendations made by the panel
of Commissioners concerning individual claims for serious personal injury or death (category “B”
claims), report of 14 April 1994 (S/AC.26/1994/1), approved by the Governing Council in its decision
20 of 26 May 1994 (S/AC.26/Dec.20 (1994)); Report and recommendations made by the panel of Commissioners
appointed to review the Well Blowout Control Claim (the “WBC claim”), of 15 November
1996 (S/AC.26/1996/5/Annex), paras. 66–86, approved by the Governing Council in its decision 40 of
17 December 1996 (S/AC.26/Dec.40 (1996)).
[1249] 462 As in Security Council resolution 687 (1991), para. 16.
[1250] 463 See, e.g., the “Naulilaa” case (footnote [990] 337 above), p. 1031.
[1251] 464 For comparative reviews of issues of causation and remoteness, see, e.g., H. L. A. Hart and
A. M. Honoré, Causation in the Law, 2nd ed. (Oxford, Clarendon Press, 1985); A. M. Honoré, “Causation
and remoteness of damage”, International Encyclopedia of Comparative Law, A. Tunc, ed. (Tübingen,
Mohr/The Hague, Martinus Nijhoff, 1983), vol. XI, part I, chap. 7; Zweigert and Kötz, op. cit. (footnote
[815] 251 above), pp. 601–627, in particular pp. 609 et seq.; and B. S. Markesinis, The German Law
of Obligations: Volume II—The Law of Torts: A Comparative Introduction, 3rd ed. (Oxford, Clarendon
Press, 1997), pp. 95–108, with many references to the literature.
[1252] 465 See, e.g., the decision of the Iran-United States Claims Tribunal in The Islamic Republic
of Iran v. The United States of America, cases A15 (IV) and A24, Award No. 590–A15 (IV)/A24–FT,
28 December 1998, World Trade and Arbitration Materials, vol. 11, No. 2 (1999), p. 45.
[1253] 466 P. S. Atiyah, An Introduction to the Law of Contract, 5th ed. (Oxford, Clarendon Press,
1995), p. 466.
324 Article 31
(11) A further element affecting the scope of reparation is the question of mitigation of
damage. Even the wholly innocent victim of wrongful conduct is expected to act reasonably
when confronted by the injury. Although often expressed in terms of a “duty to mitigate”,
this is not a legal obligation which itself gives rise to responsibility. It is rather that
a failure to mitigate by the injured party may preclude recovery to that extent.[1254] 467 The
point was clearly made in this sense by ICJ in the Gabčíkovo-Nagymaros Project case:
Slovakia also maintained that it was acting under a duty to mitigate damages when it carried out
Variant C. It stated that “It is a general principle of international law that a party injured by the
non-performance of another contract party must seek to mitigate the damage he has sustained”.
It would follow from such a principle that an injured State which has failed to take the necessary
measures to limit the damage sustained would not be entitled to claim compensation for that damage
which could have been avoided. While this principle might thus provide a basis for the calculation
of damages, it could not, on the other hand, justify an otherwise wrongful act.[1255] 468
(12) Often two separate factors combine to cause damage. In the United States Diplomatic
and Consular Staff in Tehran case,[1256] 469 the initial seizure of the hostages by militant students
(not at that time acting as organs or agents of the State) was attributable to the combination
of the students’ own independent action and the failure of the Iranian authorities
to take necessary steps to protect the embassy. In the Corfu Channel case,[1257] 470 the damage
to the British ships was caused both by the action of a third State in laying the mines
and the action of Albania in failing to warn of their presence. Although, in such cases, the
injury in question was effectively caused by a combination of factors, only one of which is
to be ascribed to the responsible State, international practice and the decisions of international
tribunals do not support the reduction or attenuation of reparation for concurrent
causes,[1258] 471 except in cases of contributory fault.[1259] 472 In the Corfu Channel case, for
example, the United Kingdom recovered the full amount of its claim against Albania based
on the latter’s wrongful failure to warn of the mines even though Albania had not itself laid
[1254] 467 In the WBC claim, a UNCC panel noted that “under the general principles of international
law relating to mitigation of damages … the Claimant was not only permitted but indeed obligated to
take reasonable steps to … mitigate the loss, damage or injury being caused” report of 15 November 1996
(S/AC.26/1996/5/Annex) (footnote [1248] 461 above), para. 54.
[1255] 468 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 55, para. 80.
[1256] 469 United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), pp. 29–32.
[1257] 470 Corfu Channel, Merits (footnote [29] 35 above), pp. 17–18 and 22–23.
[1258] 471 This approach is consistent with the way in which these issues are generally dealt with in
national law. “It is the very general rule that if a tortfeasor’s behaviour is held to be a cause of the victim’s
harm, the tortfeasor is liable to pay for all of the harm so caused, notwithstanding that there was a concurrent
cause of that harm and that another is responsible for that cause … In other words, the liability
of a tortfeasor is not affected vis-à-vis the victim by the consideration that another is concurrently
liable”: T. Weir, “Complex liabilities”, A. Tunc, ed., op. cit. (footnote [1251] 464 above), part 2, chap. 12,
p. 43. The United States relied on this comparative law experience in its pleadings in the Aerial Incident
of 27 July 1955 case when it said, referring to Article 38, paragraph 1 (c) and (d), of the ICJ Statute, that
“in all civilized countries the rule is substantially the same. An aggrieved plaintiff may sue any or all
joint tortfeasors, jointly or severally, although he may collect from them, or any one or more of them,
only the full amount of his damage” (Memorial of 2 December 1958 (footnote [1033] 363 above), p. 229).
[1259] 472 See article 39 and commentary.
Article 31 325
the mines.[1260] 473 Such a result should follow a fortiori in cases where the concurrent cause
is not the act of another State (which might be held separately responsible) but of private
individuals, or some natural event such as a flood. In the United States Diplomatic and
Consular Staff in Tehran case, the Islamic Republic of Iran was held to be fully responsible
for the detention of the hostages from the moment of its failure to protect them.[1261] 474
(13) It is true that cases can occur where an identifiable element of injury can properly be
allocated to one of several concurrently operating causes alone. But unless some part of
the injury can be shown to be severable in causal terms from that attributed to the responsible
State, the latter is held responsible for all the consequences, not being too remote, of
its wrongful conduct. Indeed, in the Zafiro claim the tribunal went further and in effect
placed the onus on the responsible State to show what proportion of the damage was not
attributable to its conduct. It said:
We think it clear that not all of the damage was done by the Chinese crew of the Zafiro. The evidence
indicates that an unascertainable part was done by Filipino insurgents, and makes it likely that some
part was done by the Chinese employees of the company. But we do not consider that the burden is on
Great Britain to prove exactly what items of damage are chargeable to the Zafiro. As the Chinese crew
of the Zafiro are shown to have participated to a substantial extent and the part chargeable to unknown
wrongdoers can not be identified, we are constrained to hold the United States liable for the whole.
In view, however, of our finding that a considerable, though unascertainable, part of the damage is not
chargeable to the Chinese crew of the Zafiro, we hold that interest on the claims should not be allowed.[1262] 475
(14) Concerns are sometimes expressed that a general principle of reparation of all loss
flowing from a breach might lead to reparation which is out of all proportion to the gravity
of the breach. However, the notion of “proportionality” applies differently to the different
forms of reparation.[1263] 476 It is addressed, as appropriate, in the individual articles in
chapter II dealing with the forms of reparation.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Panel of Commissioners of the United Nations Compensation Commission
S/AC.26/2003/15
In its 2003 report and recommendations concerning part three of the third instalment
of “F3” claims,[1264] 182 the Panel of Commissioners of the United Nations Compensation Commission
found that the loss resulting from the use or diversion of Kuwait’s resources to fund
the costs of putting right the loss and damage arising directly from Iraq’s invasion and occupation
of Kuwait (which it termed “direct financing losses”) fell “squarely within the types
[1260] 473 See Corfu Channel, Assessment of Amount of Compensation, Judgment, I.C.J. Reports 1949,
p. 244, at p. 250.
[1261] 474 United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), pp. 31–33.
[1262] 475 The Zafiro case (footnote [567] 154 above), pp. 164–165.
[1263] 476 See articles 35 (b), 37, paragraph 3, and 39 and commentaries.
[1264] 182 “F3” claims before the United Nations Compensation Commission are claims filed by the
Government of Kuwait, excluding environmental claims.
326 Article 31
of loss contemplated by articles 31 and 35 of the International Law Commission articles, and
the principles established in the [Factory at] Chorzów case, and so are compensable”.[1265] 183
[A/62/62, para. 103]
S/AC.26/2005/10
In the 2005 report and recommendations concerning the fifth instalment of “F4”
claims,[1266] 184 the Panel of Commissioners of the United Nations Compensation Commission
noted that the claimants had asked for compensation for loss of use of natural
resources damaged as a result of Iraq’s invasion and occupation of Kuwait during the
period between the occurrence of the damage and the full restoration of the resources.
While Iraq had argued that there was no legal justification for compensating claimants for
“interim loss” of natural resources that had no commercial value, the claimants invoked,
inter alia, the principle whereby reparation must “wipe out all consequences of the illegal
act”, first articulated by the Permanent Court of International Justice in the Factory
at Chorzów case and then “accepted by the International Law Commission”.[1267] 185 The
Panel concluded that a loss due to depletion of or damage to natural resources, including
resources that may have a commercial value, was compensable if such loss was a direct
result of Iraq’s invasion and occupation of Kuwait. Although this finding was based on an
interpretation of Security Council resolution 687 (1991) and United Nations Compensation
Commission Governing Council decision 7, the panel noted that it was not “inconsistent
with any principle or rule of general international law”.[1268] 186
[A/62/62, para. 104]
International arbitral tribunal (under the ICSID Convention)
ADC Affiliate Limited and ADC & ADMC Management Limited v. Republic of Hungary
In its 2006 award, the arbitral tribunal constituted to hear the ADC Affiliate Limited
and ADC & ADMC Management Limited v. Hungary case, in determining the “customary
international law standard” for damages assessment applicable in the case, referred,
together with case law and legal literature, to article 31, paragraph 1, finally adopted by the
International Law Commission in 2001. The tribunal noted that the said provision, which
it quoted, “expressly rel[ies] on and closely follow[s] Chorzów Factory”. In addition, the tribunal
recalled that the Commission’s commentary on this article states that “The general
principle of the consequences of the commission of an internationally wrongful act was
stated by the Permanent Court in the Factory of Chorzów case”.[1269] 187
[A/62/62, para. 105]
[1265] 183 S/AC.26/2003/15, para. 220 (footnote omitted).
[1266] 184 “F4” claims before the United Nations Compensation Commission are claims for damage
to the environment.
[1267] 185 S/AC.26/2005/10, para. 49.
[1268] 186 Ibid., paras. 57 and 58.
[1269] 187 ICSID, Case No. ARB/03/16, Award, 2 October 2006, paras. 494 and 495.
Article 31 327
International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro)
In its 2007 judgment in the Genocide case, the Court, having found that the Respondent
had failed to comply with its obligations under the Genocide Convention in respect of the
prevention and punishment of genocide, referred to article 31 finally adopted by the International
Law Commission in 2001 in the context of its examination of the question of reparation:
The principle governing the determination of reparation for an internationally wrongful act is as
stated by the Permanent Court of International Justice in the Factory at Chorzów case: that ‘reparation
must, so far as possible, wipe out all the consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if that act had not been committed’ (P.C.I.J.
Series A, No. 17, p. 47: see also Article 31 of the ILC’s Articles on State Responsibility).[1270] 10
[A/62/62/Add.1, para. 6]
International arbitral tribunal (under the ICSID Convention)
LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc. v. Argentine Republic
The arbitral tribunal constituted to hear the LG&E Energy Corp., LG&E Capital Corp.,
LG&E International Inc. v. Argentina case, having previously found Argentina to be in
breach of its obligations under the 1991 bilateral investment treaty between the United
States and Argentina,[1271] 38 proceeded to consider the applicable standard for reparation
in its 2007 award. The tribunal stated that it agreed with the claimants that “the appropriate
standard for reparation under international law is ‘full’ reparation as set out by the
Permanent Court of International Justice in the Factory at Chorzów case and codified in
Article 31 of the International Law Commission Draft articles on Responsibility of States
for Internationally Wrongful Acts”.[1272] 39
[A/65/76, para. 28]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the
United Mexican States
In its 2007 award, the tribunal established to hear the case of Archer Daniels Midland
Company and Tate & Lyle Ingredients Americas, Inc. v. Mexico considered article 31 to
reflect a rule applicable under customary international law.[1273] 40
[A/65/76, para. 29]
[1270] 10 [ICJ, Judgment, I.C.J. Reports 2007, p. 43], para. 460.
[1271] 38 See footnote [1103] 166, and accompanying text, above.
[1272] 39 Ibid., award, 25 July 2007, para. 31.
[1273] 40 See footnote [3] 4 above, para. 275.
328 Article 31
International arbitral tribunal (under the ICSID Convention)
Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania
In its 2008 award, the tribunal in the Biwater Gauff (Tanzania) Ltd. v. Tanzania case
cited the definition of the term “injury” in article 31, paragraph 2 (“… any damage, whether
material or moral, caused by the internationally wrongful act of a State”) in support of
its assertion that “[c]ompensation for any violation of the [investment treaty between the
United Kingdom and the United Republic of Tanzania], whether in the context of unlawful
expropriation or the breach of any other treaty standard, will only be due if there is a sufficient
causal link between the actual breach … and the loss sustained”.[1274] 41 The tribunal
then proceeded to quote in extenso extracts from the commentary to article 31 describing
the necessary link between the wrongful act and the injury in order for the obligation of
reparation (here in the form of compensation) to arise,[1275] 42 and held that “in order to succeed
in its claims for compensation, [the claimant] has to prove that the value of its investment
was diminished or eliminated, and the actions [it] complains of were the actual and
proximate cause of such dimunition in, or elimination of, value”.[1276] 43 The tribunal also
found occasion to refer to the definition of “injury” in paragraph 2 in support of its view that
[i]t is … insufficient to assert that simply because there has been a ‘taking’, or unfair or inequitable
conduct, there must necessarily have been an ‘injury’ caused such as to ground a claim for compensation.
Whether or not each wrongful act by the [respondent] ‘caused injury’ such as to ground a
claim for compensation must be analysed in terms of each specific ‘injury’ for which [the claimant]
has in fact claimed damages.[1277] 44
[A/65/76, para. 30]
Duke Energy Electroquil Partners & Electroquil S.A. v. Republic of Ecuador
In its 2008 award, the tribunal in the Duke Energy Electroquil Partners & Electroquil
S.A. v. Ecuador case, referred to article 31 as having, in its view, “codified” the principle of
“full” compensation, as earlier established by the Permanent Court of International Justice
in the Factory at Chorzów case.[1278] 45 The tribunal saw “no reason not to apply this provision
by analogy to investor-state arbitration”.[1279] 46
[A/65/76, para. 31]
[1274] 41 See footnote [5] 6 above, paras. 779 and 783.
[1275] 42 Ibid., para. 785, quoting extracts from paragraph (10) of the commentary to article 31.
[1276] 43 Ibid., para. 787, emphasis added.
[1277] 44 Ibid., para. 804 and footnote 369, (footnotes omitted) emphasis in the original.
[1278] 45 Case concerning the Factory at Chorzów, Merits, p. 21 (footnote [28] 34 above).
[1279] 46 ICSID, Case No. ARB/04/19, Award, 18 August 2008, para. 468.
Article 31 329
Eritrea-Ethiopia Claims Commission
Ethiopia’s Damages Claims, Final Award, 17 August 2009, and Eritrea’s Damages Claims,
Final Award, 17 August 2009
In its 2009 final awards on Ethiopia’s Damages Claims and Eritrea’s Damages Claims,
the Eritrea-Ethiopia Claims Commission recalled that an earlier version of the State responsibility
articles had included a qualification that “[i]n no case may a people be deprived of its
own means of subsistence”, which was also reflected in article 1, paragraph 2, of both Human
Rights Covenants.[1280] 47 The Claims Commission further observed that the principle set out
by the Permanent Court of International Justice in the Chorzów Factory case, that the purpose
of compensation payable by a responsible State is “to seek to wipe out all the consequences of
the illegal act and re-establish the situation which would, in all probability, have existed if that
act had not been committed” was reflected in article 31 of the State responsibility articles.[1281] 48
[A/65/76, para. 32]
International arbitral tribunal (under the ICSID Convention)
Ioannis Kardassopoulos and Ron Fuchs v. the Republic of Georgia
In Ioannis Kardassopoulos and Ron Fuchs v. the Republic of Georgia, the arbitral tribunal
cited article 31, and the commentary thereto, as authority for the proposition that “a
State is under an obligation to make full reparation for the injury caused by an internationally
wrongful act”.[1282] 147
[A/68/72, para. 103]
Court of Justice of the European Union
Axel Walz v. Clickair SA
In its judgment in Axel Walz v. Clickair SA, the Court of Justice of the European
Union sought to determine the ordinary meaning to be given to the term “damage” by reference,
inter alia, to article 31, paragraph 2, of the State responsibility articles,[1283] 148 which
it considered as “codify[ing] the current state of general international law [and could] thus
[1280] 47 Eritrea-Ethiopia Claims Commission, Ethiopia’s Damages Claims, Final Award, 17 August
2009, para. 19, and Eritrea-Ethiopia Claims Commission, Eritrea’s Damages Claims, Final Award,
17 August 2009, para. 19, reference to the predecessor to article 31, namely draft article 42 [6 bis], at
paragraph 3, as adopted by the Commission on first reading, at its forty-eighth session in 1996. The
provision was deleted during the second reading, at the fifty-second session of the Commission in 2000.
See Yearbook of the International Law Commission, 2000, vol. II, Part Two, paras. 79, 100 and 101. A
reference to the qualification, as contained in article 1, paragraph 2, of the two Human Rights Covenants
was, however, retained in the commentary to article 50, at paragraph (7). See further the discussion
under article 56 below.
[1281] 48 Ibid., Ethiopia’s Damages Claims, para. 24, and Eritrea’s Damages Claims, para. 24, quoting
Case concerning the Factory at Chorzów, (footnote [28] 34 above), p. 47.
[1282] 147 See footnote [288] 36 above, paras. 467 and 468 (emphasis in the original).
[1283] 148 CJEU, Third Chamber, Axel Walz v. Clickair, Case C-63/09, Judgment, 6 May 2010, para. 27.
330 Article 31
be regarded as … expressing the ordinary meaning to be given to the concept of damage
in international law”.[1284] 149
[A/68/72, para. 104]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Gemplus S.A. et al. v. The United Mexican States and Talsud S.A. v. The United Mexican States
In its award, the arbitral tribunal in the Gemplus S.A. et al. v. The United Mexican
States and Talsud S.A. v. The United Mexican States cases, in analysing the causal link
between the breach of the treaty in question and the loss sustained by the claimant, indicated
that “[a]s to causation generally, it [was] … useful to refer to” article 31 of the State
responsibility articles, and in particular to the obligation to make full reparation for the
injury “caused by the intentionally wrongful act of a State”.[1285] 150 The tribunal proceeded
to quote, in extenso, paragraph (10) of the commentary on article 31 on the question of the
link which must exist between the wrongful act and the injury in order for the obligation
of reparation to arise.[1286] 151
The tribunal subsequently indicated that, “[a]s to the general approach to the assessment
of compensation”, it was guided by both the decision of the Permanent Court of International
Justice in the Chorzów Factory case, and by article 31 of the State responsibility articles which
it considered to be “declaratory of international law”.[1287] 152
[A/68/72, paras. 105–106]
International Tribunal for the Law of the Sea (Seabed Disputes Chamber)
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area
In its advisory opinion on Responsibilities and Obligations of States Sponsoring Persons
and Entities with Respect to Activities in the Area, the Seabed Disputes Chamber, in
analysing the scope of liability under UNCLOS, confirmed that the “obligation for a State
to provide for a full compensation or restituto in integrum [was] currently part of customary
international law.”[1288] 153 In support of its conclusion, the Chamber referred to the decision
of the Permanent Court of International Justice in the Chorzów Factory case,[1289] 154
and indicated that: “[t]his obligation was further reiterated by the International Law Commission
[in] article 31, paragraph 1, of the ILC Articles on State Responsibility … ”.[1290] 155
[A/68/72, para. 107]
[1284] 149 Ibid., para. 28.
[1285] 150 See footnote [866] 116 above, para. 11.9.
[1286] 151 Ibid., para. 11.10.
[1287] 152 Ibid., para. 12–51.
[1288] 153 See footnote [12] 10 above, para. 194.
[1289] 154 Case concerning the Factory at Chorzów, Merits (footnote [28] 34 above), p. 47.
[1290] 155 See footnote [12] 10 above, para. 194.
Article 31 331
International arbitral tribunal (under the ICSID Convention)
Joseph C. Lemire v. Ukraine
The arbitral tribunal in Joseph C. Lemire v. Ukraine cited article 31 as authority for the
proposition that “a wrong committed by a State against an investor must always give rise
to a right for compensation of the economic harm sustained”.[1291] 156
[A/68/72, para. 108]
El Paso Energy International Company v. The Argentine Republic
The commentary to article 31 was cited by the arbitral tribunal in El Paso Energy International
Company v. The Argentine Republic in support of the assertion that “the test of causation
is whether there is a sufficient link between the damage and the treaty violation”.[1292] 157
[A/68/72, para. 109]
Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation & Texaco Petroleum Company v. the Republic of Ecuador
The arbitral tribunal in Chevron Corporation & Texaco Petroleum Company v. the
Republic of Ecuador referred to Part Two of the State responsibility articles as expressing
the legal principle concerning claims for moral damages.[1293] 158
[A/68/72, para. 110]
International arbitral tribunal (under the ICSID Convention)
Railroad Development Corporation v. Republic of Guatemala
The arbitral tribunal in Railroad Development Corporation v. Republic of Guatemala
considered article 31, paragraph 1, to reflect the customary international law rule applicable
in ascertaining the “minimum standard of treatment” to be applied in the case of
breaches of the treaty in question.[1294] 159
[A/68/72, para. 111]
Occidental Petroleum Corporation and Occidental Exploration and Production Company
v. The Republic of Ecuador
In its award in Occidental Petroleum Corporation and Occidental Exploration and
Production Company v. The Republic of Ecuador, the arbitral tribunal, in an analysis of the
[1291] 156 ICSID, Case No. ARB/06/18, Award, 28 March 2011, para. 147.
[1292] 157 See footnote [56] 16 above, para. 682, note 644.
[1293] 158 See footnote [304] 45 above, para. [9.6].
[1294] 159 See footnote [789] 105 above, para. 260.
332 Article 31
concept of “contributory negligence”, referred to articles 31 and 39 of the State responsibility
articles, and took note of paragraph (13) of the commentary to article 31.[1295] 160
In its subsequent consideration of the claimant’s claims for consequential damages,
the tribunal held that “[t]he availability of consequential loss in international law is uncontroversial”,
and referred to the principle of “full reparation” expressed in the Chorzów Factory
case.[1296] 161 The tribunal indicated further that “[t]his principle is now also embodied
in Article 31 of the International Law Commission’s Articles on Responsibility of States for
Internationally Wrongful Acts … ”.[1297] 162
[A/68/72, paras. 112–113]
[International Tribunal for the Law of the Sea
Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission
In Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission,
the International Tribunal for the Law of the Sea found that articles 1, 2 and 31, paragraph
1 “are the rules of general international law relevant to the second question”, namely
to what extent the flag State shall be held liable for illegal, unreported and unregulated
fishing activities conducted by vessels sailing under its flag.[1298] 15
[A/71/80, para. 16]]
International arbitral tribunal (under the ICSID Convention)
Mr Franck Charles Arif v. Republic of Moldova
In Mr Franck Charles Arif v. Republic of Moldova, the arbitral tribunal cited article 31
as reflecting the “general obligation of a State guilty of an internationally wrongful act to
make reparation”.[1299] 140
[A/71/80, para. 100]
The Rompetrol Group N.V. v. Romania
The arbitral tribunal constituted to hear The Rompetrol Group N.V. v. Romania case
discussed article 31 as follows:
While the Tribunal cannot fault the Claimant’s submission that, under the draft Articles, breach of
an international obligation has wider consequences than the duty to pay damages, it notes (subject to
what will appear later) that, in its final form, the Claimant’s claim is primarily a claim for damages.
The crux therefore lies in draft Article 31, and specifically the ILC’s commentary to that article (read
together with its commentary to draft Article 2). In both places, the ILC states clearly that there is no
general rule requiring damage as a constituent element of an international wrong giving rise to State
[1295] 160 See footnote [309] 50 above, paras. 665–668.
[1296] 161 Ibid., para. 792.
[1297] 162 Ibid., para. 793.
[1298] [15 ITLOS, Advisory Opinion, 2 April 2015, para. 144.]
[1299] 140 See footnote [320] 46 above, para. 559.
Article 31 333
responsibility. The ILC goes on to say that whether damage is or is not actually required depends
on the nature of the primary obligation that has been breached. Moreover the ILC goes on to make
explicit that its formulation of the rule in terms of an automatic obligation borne by the wrongful
State is designed to side-step the problems that would otherwise be caused by the possible existence
of more than one State ‘specially affected by the breach,’ the latter being a phrase repeatedly used
in the draft Articles, along with the expression ‘injured State,’ to express the idea of a State which
has suffered damage in some direct sense sufficient to entitle it to ‘invoke the responsibility of’ the
wrongful State. … Transposing the above from the State-to-State to the investment treaty context
leads, in the Tribunal’s opinion, to the following conclusions. The starting point, as the ILC points
out, is the nature of the particular international obligation (the ‘primary obligation’) breach of which
is being invoked.[1300] 141
[A/71/80, para. 101]
The tribunal further cited article 31 to support the statement that “[i]n general international
law … the award of moral damages is certainly accepted”.[1301] 142
[A/71/80, para. 102]
International arbitral tribunal (under the ICSID Convention)
Ioan Micula and others v. Romania
The arbitral tribunal in Ioan Micula and others v. Romania cited article 31 and
the commentary thereto, as emphasizing the principle that there is a “need for a causal
link between the internationally wrongful act and the injury for which compensation is
due”.[1302] 143 In relation to the directness of the causal link, the tribunal further “note[d]
that under the ILC Articles not every event subsequent to the wrongful act and antecedent
to the occurrence of the injury will necessarily break the chain of causation and qualify as
an intervening cause”.[1303] 144
[A/71/80, para. 103]
International Tribunal for the Law of the Sea
The M/V “Virginia G” Case (Panama/Guinea-Bissau)
The International Tribunal for the Law of the Sea in The M/V “Virginia G” Case (Panama/
Guinea-Bissau) observed that article 31, paragraph 1 provided that “[t]he responsible
State is under an obligation to make full reparation for the injury caused by the internationally
wrongful act”.[1304] 145
[A/71/80, para. 104]
[1300] 141 See footnote [17] 5 above, paras. 189–190, also referring to Part III of the State responsibility
articles (footnotes omitted).
[1301] 142 Ibid., para. 289.
[1302] 143 See footnote [1188] 133 above, para. 923.
[1303] 144 Ibid., para. 925, referring to comments 12 and 13 to article 31.
[1304] 145 See footnote [58] 11 above, para. 429 (quoting article 31).
334 Article 31
Permanent Court of Arbitration (under UNCITRAL Rules)
Enkev Beheer B.V. v. Republic of Poland
In Enkev Beheer B.V. v. Republic of Poland, the arbitral tribunal “derived no decisive
assistance from Article 31 of the International Law Commission’s Articles on State
Responsibility and its Commentary”, because “[c]ompensation for unlawful expropriation
may entail more than compensation for lawful expropriation”.[1305] 146
[A/71/80, para. 105]
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
In Hulley Enterprises Limited (Cyprus) v. The Russian Federation, the arbitral tribunal
noted that it will “assess damages in the light of the foregoing accepted principles of
international law”,[1306] 147 including articles 31, 36 and 39. In assessing contributory fault,
the tribunal, quoting the commentary to article 31, stated that
[i]t is true that cases can occur where an identifiable element of injury can properly be allocated to
one of several concurrently operating causes alone. But unless some part of the injury can be shown
to be severable in causal terms from that attributed to the responsible State, the latter is held responsible
for all the consequences, not being too remote, of its wrongful conduct.[1307] 148
In relation to the quantification of damage in cases of multiple causes for the same damage,
the tribunal also cited the commentary to article 31, emphasizing that
as the commentary makes clear, the mere fact that damage was caused not only by a breach, but
also by a concurrent action that is not a breach does not, as such, interrupt the relationship of
causation that otherwise exists between the breach and the damage. Rather, it falls to the Respondent
to establish that a particular consequence of its actions is severable in causal terms (due to the
intervening actions of Claimants or a third party) or too remote to give rise to Respondent’s duty
to compensate.[1308] 149
[A/71/80, para. 106]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Gold Reserve Inc. v. Bolivarian Republic of Venezuela
The arbitral tribunal in Gold Reserve Inc. v. Bolivarian Republic of Venezuela noted
that the principles found in the State responsibility articles, and particularly in article 31
“to make full reparation for injury caused through violating an international obligation an
international obligation”,[1309] 150 reflect customary international law.
[A/71/80, para. 107]
[1305] 146 PCA, Case No. 2013–01, First Partial Award, 29 April 2014, para. 363.
[1306] 147 See footnote [19] 7 above, para. 1593.
[1307] 148 Ibid., para. 1598 (quoting para. (13) of the commentary to article 31).
[1308] 149 Ibid., para. 1775.
[1309] 150 See footnote [61] 14 above, para. 679.
Article 31 335
International arbitral tribunal (under the ICSID Convention)
Flughafen Zurich A.G. and Gestión Ingenería IDC S.A. v. Bolivarian Republic of Venezuela
In Flughafen Zurich A.G. and Gestión Ingenería IDC S.A. v. Bolivarian Republic of
Venezuela, the arbitral tribunal cited, inter alia, the State responsibility articles in support
of the proposition that it “[e]s un principio firme del Derecho internacional consuetudinario
que la víctima de un acto ilícito perpetrado por un Estado tiene derecho a recibir una
reparación íntegra, como si el acto ilícito no hubiera ocurrido”.[1310] 151
[A/71/80, para. 108]
Permanent Court of Arbitration (under UNCITRAL Rules)
British Caribbean Bank Limited v. The Government of Belize
The arbitral tribunal, in British Caribbean Bank Limited v. The Government of Belize,
considered that “[i]n the absence of an applicable provision within the Treaty itself, establishing
the standard of compensation as a matter of lex specialis, the applicable standard of
compensation is that existing in customary international law, as set out by the Permanent
Court of International Justice in the Factory at Chorzów” and articles 31, 34 and 35 of the
Articles of State Responsibility, as cited by the tribunal.[1311] 152
[A/71/80, para. 109]
The arbitral tribunal also noted that “the approach it has taken in the application of
the Chorzów Factory standard and the ILC Articles on State Responsibility to provide the
Claimant with full reparation calls for the Tribunal to place the Claimant in the circumstances
in which it would have found itself, but for the unlawful act. The Tribunal considers
that this logic leads to the application of the regular rate of interest under the contract,
rather than the penalty rate”.[1312] 153
[A/71/80, para. 110]
International arbitral tribunal (under the ICSID Convention)
Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The
Argentine Republic
The arbitral tribunal in Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi
Universal S.A. v. The Argentine Republic, noted that, as per article 31, a State is responsible
for the full reparation for any damage caused by its internationally wrongful act and
there must be a causal link between the internationally wrongful act and the injury for
which reparation is claimed. “If such a link exists, then Argentina is required to make ‘full
reparation’ for the injury it has caused”.[1313] 154
[A/71/80, para. 111]
[1310] 151 ICSID, Case No. ARB/10/19, Award 18 November, 2014, para. 746.
[1311] 152 PCA Case No. 2010–18, Award, 19 December 2014, paras. 287–291.
[1312] 153 Ibid., para. 299.
[1313] 154 See footnote [63] 16 above, para. 26 (quoting article 31).
336 Article 31
African Court on Human and Peoples’ Rights
Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and
Blaise Ilboudo & the Burkinabe Human and Peoples’ Rights Movement v. Burkina Faso
In Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo
and Blaise Ilboudo & the Burkinabe Human and Peoples’ Rights Movement v. Burkina
Faso, the African Court on Human and Peoples’ Rights referred to article 31, paragraph 1
of the State responsibility articles,[1314] 155 noting that “in accordance with international
law, for reparation to accrue, there must be a causal link between the wrongful act that has
been established and the alleged prejudice”.[1315] 156 The Court explained that “Article 31(2)
of the Draft Articles on Responsibility of States mentioned above indeed refers to a ‘prejudice
… resulting from an internationally wrongful act’”.[1316] 157 The Court cited article 31,
paragraph 2 in support of the statement that “according to international law, both material
and moral damages have to be repaired”.[1317] 158
[A/71/80, para. 112]
International arbitral tribunal (under the ICSID Convention)
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal,
referring to article 31, paragraph 1, observed that “the ILC Articles confirm restitution as
the principal form of reparation in international law”.[1318] 159 The tribunal further cited article
31 and the accompanying commentary in noting that “[a] State’s obligation to provide
reparation for an ‘injury’ may include moral damage, as well as material damage”. Such
“moral damages include ‘such things as individual pain and suffering, loss of loved ones or
personal affront associated with an intrusion on one’s home or private life’ … . Nevertheless,
moral damages will be awarded only in exceptional circumstances”.[1319] 160
[A/71/80, para. 113]
Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State
of Bolivia
In Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational
State of Bolivia, the arbitral tribunal noted that compensation for unlawful expropriation
is “governed by the full reparation principle as articulated by the PCIJ in the Chorzów case
and later expressed in the ILC Articles”,[1320] 161 and cited the text of article 31 in support of
[1314] 155 ACHPR, Application No. 013/2011, Judgment on Reparations, 5 June 2015, para. 21.
[1315] 156 Ibid., para. 24.
[1316] 157 Ibid.
[1317] 158 Ibid., para. 26.
[1318] 159 See footnote [114] 24 above, para. 684. See also the reference to article 31 in the text accompanying
footnote [1324] 177 below.
[1319] 160 Ibid., para. 908 (quoting para. (5) of the commentary to article 31).
[1320] 161 See footnote [65] 18 above, para. 326.
Article 31 337
the principle that a “responsible state must repair the damage caused by its internationally
wrongful act”.[1321] 162
[A/71/80, para. 114]
Hrvatska Elektroprivreda d.d. v. Republic of Slovenia
The arbitral tribunal in Hrvatska Elektroprivreda d.d. v. Republic of Slovenia indicated
that, “[t]aken together, Article 31(1) and the Chorzów Factory decision require that [the Claimant]
be placed in the same situation ‘which would, in all probability, have existed’” had the
internationally unlawful act not been committed “while also providing ‘damages for loss
sustained’”.[1322] 163 The tribunal found that “consistent with the above principles, the preferred
approach to calculate the X factor is the replacement cost approach. The focus compelled by
Article 31 and the Chorzów Factory decision is on the loss suffered to the harmed party”.[1323] 164
[A/71/80, para. 115]
[Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal
referred to article 34 of the State responsibility articles as expanding on the principle contained
in article 31.[1324] 177 Based on the commentary to article 34, the tribunal explained
that reparation must achieve “re-establishment of the situation which existed before the
breach” and explained that “restitution is only one form of reparation. If restitution alone
fails to adequately restore a claimant to the situation it was in prior to the wrong, then
other forms of reparation may also be awarded”.[1325] 178
[A/71/80, para. 125]]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
In assessing the contributory fault of the claimants, the arbitral tribunal in Hulley Enterprises
Limited (Cyprus) v. The Russian Federation referred to article 39 and the commentary
thereto, in conjunction with article 31, to “decide, on the basis of the totality of the evidence
before it, whether there is a sufficient causal link between any wilful or negligent act or omission
of the Claimants (or of Yukos, which they controlled) and the loss Claimants ultimately
suffered at the hands of the Russian Federation through the destruction of Yukos”.[1326] 227 …
[A/71/80, para. 153]]
[1321] 162 Ibid., para. 327.
[1322] 163 ICSID, Case No. ARB/05/24, Award, 17 December 2015, para. 363 (quoting the Case concerning
the Factory at Chorzów, Merits, (footnote [28] 34 above), Series A, No. 17, p. 47.
[1323] 164 Ibid., para. 364.
[1324] [177 See footnote [114] 24 above, para. 684.]
[1325] [178 Ibid., para. 686 (quoting para. (2) of the commentary to article 34).]
[1326] [227 See footnote [19] 7 above, paras. 1592. See also the reference to article 39 in text accompanying
footnote [1306] 147 above.]
338 Article 31
[Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under,
part III, “Principal legal and other texts”,[1327] 150 which were relevant with regard to the
parties’ claims for relief.[1328] 151
[A/74/83, p. 28]]
International Arbitral tribunal (under the ICSID Convention)
Joseph Houben v. Republic of Burundi
In Joseph Houben v. Republic of Burundi, the arbitral tribunal stated that article 31 of
the State responsibility articles codified the customary international law standard of integral
reparation in cases in which a State violates its international obligations.[1329] 157 Interpreting
articles 35 and 36 of the State responsibility articles, the tribunal noted that the responsible
States may only provide compensation to the extent that restitution is not possible.[1330] 158
[A/74/83, p. 29]
[European Court of Human Rights
Case of Georgia v. Russia (I)
In Case of Georgia v. Russia (I), the European Court of Human Rights stated
[t]hat the just-satisfaction rule [under the European Convention on Human Rights] is directly
derived from the principles of public international law relating to State liability … Those principles
include both the obligation on the State responsible for the internationally wrongful act ‘to cease
that act, if it is continuing’ and the obligation to ‘make full reparation for the injury caused by the
internationally wrongful act’, as laid down in Articles 30 and 31 respectively of the Articles on
Responsibility of States for Internationally Wrongful Acts.[1331] 155
[A/74/83, p. 29]]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Crystallex International Corporation v. Bolivarian Republic of Venezuela
The arbitral tribunal in Crystallex International Corporation v. Bolivarian Republic
of Venezuela referred to article 31 when discussing the applicable standard of
compensation,[1332] 159 and observed that “compensation for violation of a treaty will only
[1327] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1328] [151 Ibid., para. 9.9.]
[1329] 157 ICSID, Case No. ARB/13/7, Award, 12 January 2016, para. 222.
[1330] 158 Ibid., paras. 223–224.
[1331] [155 ECHR, Grand Chamber, Application No. 13255/07, Judgment, 31 January 2019, para. 54.]
[1332] 159 ICSID (Additional Facility), Case No. ARB(AF)/11/2, Award, 4 April 2016, para. 849.
Article 31 339
be due from a respondent state if there is a sufficient causal link between the treaty breach
by that state and the loss sustained by the claimant”.[1333] 160
[A/74/83, p. 29]
International arbitral tribunal (under the ICSID Convention)
Vestey Group Limited Ltd. v. Bolivarian Republic of Venezuela
In Vestey Group Limited Ltd. v. Bolivarian Republic of Venezuela, the arbitral tribunal
cited article 31 when finding that Venezuela had committed an internationally wrongful
act that “gives rise to an obligation to make full reparation for the injury caused by the
illicit act”.[1334] 161 The tribunal also noted that “while the ILC Articles govern a State[’s]
responsibility vis-à-vis another State and not a private person, it is generally accepted that
the key provisions of the ILC, such as Article 31(1) can be transposed in the context of the
investor-State disputes”.[1335] 162
[A/74/83, p. 29]
Permanent Court of Arbitration (under UNCITRAL Rules)
Murphy Exploration and Production Company International v. The Republic of Ecuador
The arbitral tribunal in Murphy Exploration and Production Company International v.
The Republic of Ecuador, referring to article 31 of the State responsibility articles, explained
that the “principle of full reparation applies to breaches of investment treaties unrelated to
expropriations. This is reflected in the practice of investment tribunals.”[1336] 163 The tribunal
further noted that “[t]he applicable international law standard of full reparation, as reflected
in the Chorzów Factory judgment and Article 31 of the ILC Articles on State Responsibility,
does not determine the valuation methodology”.[1337] 164 Therefore, “[t]ribunals enjoy
a large margin of appreciation in order to determine how an amount of money may ‘as far
as possible, wipe out all the consequences of the illegal act and re-establish the situation
which would, in all probability, have existed if that act had not been committed’”.[1338] 165
[A/74/83, p. 30]
Flemingo DutyFree Shop Private Limited v. The Republic of Poland
In Flemingo DutyFree Shop Private Limited v. The Republic of Poland, the arbitral
tribunal observed that the Poland-India BIT
itself does not set forth the standard of compensation for these breaches. Under customary international
law, as codified in Article 31(1) of the ILC Articles, Claimant is entitled to full reparation in an amount
[1333] 160 Ibid., para. 860 and footnote 1247.
[1334] 161 ICSID, Case No. ARB/06/4, Award, 15 April 2016, para. 326 and footnote 306.
[1335] 162 Ibid., para. 326.
[1336] 163 PCA, Case No. 2012–16, Partial Final Award, 6 May 2016, para. 425.
[1337] 164 Ibid., para. 481.
[1338] 165 Ibid.
340 Article 31
sufficient to wipe out all of the injury it has incurred due to Respondent’s wrongful acts. Full reparation
encompasses both actual losses (damnum emergens) and loss of profits (lucrum cessans).[1339] 166
[A/74/83, p. 30]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Rusoro Mining Limited v. The Bolivarian Republic of Venezuela
In Rusoro Mining Limited v. The Bolivarian Republic of Venezuela, the arbitral tribunal
indicated that “absent any specific Treaty language, damages must be calculated in
accordance with the rules of international law”, including, in particular, article 31 of the
State responsibility articles.[1340] 167
[A/74/83, p. 30]
International arbitral tribunal (under the ICSID Convention)
Victor Pey Casado and President Allende Foundation v. Republic of Chile
The arbitration tribunal in Victor Pey Casado and President Allende Foundation v.
Republic of Chile observed, that
[i]t is a basic tenet of investment arbitration that a claimant must prove its pleaded loss, must show,
in other words, what alleged injury or damage was caused by the breach of its legal rights … . But
equally it follows directly from the principles of State responsibility in international law reflected in
Article 31 of the ILC Articles.[1341] 168
The tribunal further noted that “the distinction between injury (and the associated question
of causation) and the assessment of the compensation due for that injury […] is fundamental
to the operation of Article 31 of the ILC Articles”.[1342] 169
[A/74/83, p. 30]
Burlington Resources Inc. v. Republic of Ecuador
In Burlington Resources Inc. v. Republic of Ecuador, the arbitral tribunal stated that
“the appropriate standard of compensation is thus the customary international law standard
of full reparation set out in Article 31 of the ILC Articles, applied by analogy”.[1343] 170
Relying on the commentary to article 31, the tribunal further noted that “[t]he only unlawful
act identified in the Decision on Liability was the expropriation of Burlington’s investment
through Ecuador’s permanent physical takeover of the Blocks. As a result, the Tribunal’s
task is circumscribed to awarding damages ‘arising from and ascribable to’ that
takeover.”[1344] 171 On the question of whether “using information post-dating the expropria-
[1339] 166 PCA, Award, IIC 883 (2016), 12 August 2016, para. 865 (original emphasis).
[1340] 167 ICSID (Additional Facility), Case No. ARB(AF)/12/5, Award, 22 August 2016, para. 640.
[1341] 168 ICSID, Case No. ARB/98/2, Award, 13 September 2016, para. 205.
[1342] 169 Ibid., para. 215 (see also para. 204).
[1343] 170 ICSID, Case No. ARB/08/5, Decision on Reconsideration and Award, 7 February 2017, para. 177.
[1344] 171 Ibid., para. 212.
Article 31 341
tion would somehow conflict with the requirement of causation”, the tribunal determined,
further citing the commentary to article 31, that “the fact that some of the information
used to quantify lost profits on the date of the award may not have been foreseeable on the
date of the expropriation does not break the chain of causation. What matters is that the
injury suffered must have been caused by the wrongful act”.[1345] 172
[A/74/83, p. 30]
Cervin Investissements S.A. and Rhone Investissements S.A. v. Republic of Costa Rica
In Cervin Investissements S.A. and Rhone Investissements S.A. v. Republic of Costa
Rica, the arbitral tribunal observed that article 31 of the State responsibility articles codified
the principle of full reparation.[1346] 173
[A/74/83, p. 31]
Eiser Infrastructure Limited and Energía Solar Luxembourg S.à.r.l. v. Kingdom of Spain
The arbitration tribunal in Eiser Infrastructure Limited and Energía Solar Luxembourg
S.à.r.l. v. Kingdom of Spain
regards Article 31 [of the State responsibility articles] as accurately reflecting the international law
rules that are to be applied here. International law requires that Respondent make full reparation
for the injury caused by failing to comply with its obligation to accord fair and equitable treatment
under ECT article 10(1), so as to remove the consequences of the wrongful act.[1347] 174
[A/74/83, p. 31]
Valores Mundiales, S.L. and Consorcio Andino S.L. v. Bolivarian Republic of Venezuela
In Valores Mundiales, S.L. and Consorcio Andino S.L. v. Bolivarian Republic of Venezuela,
the arbitral tribunal stated that the International Commission, in article 31 of the
State responsibility articles, had codified the principle of full reparation.[1348] 175
[A/74/83, p. 31]
Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan
The arbitral tribunal in Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan
concluded, in the view of articles 31, 35 and 36 of the State responsibility articles, that “Karkey
is entitled to an award of damages that will erase the consequences of Pakistan’s wrongful
acts and re-establish the situation that would have existed but for such wrongful acts”.[1349] 176
[A/74/83, p. 31]
[1345] 172 Ibid., para. 333.
[1346] 173 ICSID, Case No. ARB/13/2, Final Award (Spanish), 7 March 2017, para. 700.
[1347] 174 ICSID, Case No. ARB/13/36, Final Award, 4 May 2017, para. 424.
[1348] 175 ICSID, Case No. ARB/13/11, Award (Spanish), 25 July 2017, para. 693.
[1349] 176 ICSID, Case No. ARB/13/1, Award, 22 August 2017, para. 663.
342 Article 31
UAB E Energija (Lithuania) v. Republic of Latvia
In UAB E Energija (Lithuania) v. Republic of Latvia, the arbitral tribunal stated that
“[u]nder Article 31 of the ILC Articles the State responsible for an internationally wrongful
act must make ‘full reparation for the injury caused’ by such act;” and noted that for damage
to be recoverable under the terms of article 36 of the State responsibility articles, “the
damage must have been caused by the State’s internationally wrongful act complained of
by the investor, Article 31 of the ILC Articles”.[1350] 177
[A/74/83, p. 31]
Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
The arbitral tribunal in Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
concluded that the “Claimant is entitled to full reparation of the damage caused by
Respondent’s breach of the ECT FET [fair and equitable treatment] standard. This is the
standard prescribed by the Chorzów Factory principle and Article 31(1) of the ILC Articles,
which the Tribunal considers fully applicable here”.[1351] 178 The arbitral tribunal also
observed that “[t]he status of the principles set out in the ILC Articles as customary international
law is also undisputed between the Parties”.[1352] 179
[A/74/83, p. 32]
Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v.
Kingdom of Spain
The arbitral tribunal in Antin Infrastructure Services Luxembourg S.à.r.l. and Antin
Energia Termosolar B.V. v. Kingdom of Spain considered article 31 of the State responsibility
articles
as reflecting the international law rules that are to be applied here and therefore, the Claimants
under international law are entitled to full reparation for damages caused by the breach by the
Respondent of its obligation to accord FET [fair and equitable treatment] under ECT [Energy Charter
Treaty] Article 10(1), so as to remove the consequences of the wrongful act.[1353] 180
[A/74/83, p. 32]
International Criminal Court
Prosecutor v. Germain Katanga
In Prosecutor v. Germain Katanga, the Trial Chamber cited the commentary to article 31
of the State responsibility articles when finding that “if the person who committed the initial
act could not have reasonably foreseen the event in question, the initial act cannot be con-
[1350] 177 ICSID, Case No. ARB/12/33, Award, 22 December 2017, paras. 1127–1129.
[1351] 178 ICSID, Case No. ARB/14/1, Award, 16 May 2018, para. 552.
[1352] 179 Ibid., para. 551.
[1353] 180 ICSID, Case No. ARB/13/31, Award, 15 June 2018, para. 664.
Article 31 343
sidered to be the proximate cause of the harm suffered by the victim and, consequently, the
person who committed the initial act cannot be held liable for the harm in question”.[1354] 181
[A/74/83, p. 32]
Arbitration Institute of the Stockholm Chamber of Commerce
Novenergia II—Energy and Environment (SCA) (Grand Duchy of Luxembourg), SICAR v.
The Kingdom of Spain
In Novenergia II—Energy and Environment (SCA) (Grand Duchy of Luxembourg),
SICAR v. The Kingdom of Spain, the arbitral tribunal, relying, inter alia, on article 31 of the
State responsibility articles, held that
[t]he principle of full reparation under customary international law therefore dictates that the
aggrieved investor shall through monetary compensation be placed in the same situation it would
have been but for the breaches of the state’s international law obligations. The compensation includes
the loss already sustained as well as loss of profits.[1355] 182
[A/74/83, p. 32]
International Chamber of Commerce
Olin Holdings Limited v. State of Libya
In Olin Holdings Limited v. State of Libya, the tribunal “reviewed the ILC Articles on
State Responsibility which require a State ‘to make a full reparation for the injury caused
by the internationally wrongful act’, covering ‘any financially assessable damage including
loss of profits insofar as it is established.’”.[1356] 183
[A/74/83, p. 32]
International arbitral tribunal (under the ICSID Convention)
UP and CD Holding Internationale v. Hungary
In UP and CD Holding Internationale v. Hungary, the arbitral tribunal noted that
the customary international law principle of full reparation was defined in the oft-cited PCIJ Chorzow
Factory case, and this principle has since been reflected in Art. 31 of the ILC Articles. Under
this standard, compensation must wipe out the consequences of the illegal act. Thus, the customary
international law principle of full reparation includes reparation for consequential damages.[1357] 184
[A/74/83, p. 33]
[1354] 181 International Criminal Court, Trial Chamber II, Decision on the Matter of the Transgenerational
Harm Alleged by Some Applicants for Reparations Remanded by the Appeals Chamber in its
Judgment of 8 March 2018, ICC-01/04–01/07, 19 July 2018, para. 17 and footnote 36.
[1355] 182 SCC, Case No. 2015/063, Final Arbitral Award, 15 February 2018, para. 808.
[1356] 183 ICC, Case No. 20355/MCP, Final Award, 25 May 2018, para. 473.
[1357] 184 ICSID, Case No. ARB/13/35, Award, 9 October 2018, para. 512.
344 Article 31
Arbitration Institute of the Stockholm Chamber of Commerce
Foresight Luxembourg Solar 1 S.À.R.L. et al. v. The Kingdom of Spain
In Foresight Luxembourg Solar 1 S.À.R.L. et al. v. The Kingdom of Spain, the arbitral
tribunal quoted article 31 of the State responsibility articles when “look[ing] to customary
international law for the applicable standard of compensation”.[1358] 185 The tribunal “further
consider[ed] that the principle of full reparation is generally accepted in international
investment law”.[1359] 186
[A/74/83, p. 33]
[International arbitral tribunal (under the ICSID Convention)
Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of
Kazakhstan
The arbitral tribunal in Caratube International Oil Company LLP and Devincci Salah
Hourani v. Republic of Kazakhstan concluded, after referring to articles 31, 34 and 36 of the
State responsibility articles, that
the damages actually incurred by CIOC [Caratube International Oil Company LLP] as a result of the
Respondent’s unlawful expropriation of the Contract (as determined by a majority of the Tribunal)
are appropriately assessed using a subjective and concrete valuation approach providing full reparation
for the damages actually incurred by CIOC, without FMV [fair market value].[1360] 191
[A/74/83, p. 34]]
Marco Gavazzi and Stefano Gavazzi v. Romania
The arbitral tribunal in Marco Gavazzi and Stefano Gavazzi v. Romania, agreeing
with the discussion of articles 31, 36 and 39 of the State responsibility articles in previous
arbitral cases, “determine[d] that the Respondent caused the losses suffered by the Claimants
as assessed in this Award, without any reduction for ‘contributory negligence’ or other
fault, as alleged by the Respondent”.[1361] 236
[A/74/83, p. 39]
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
In Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, the tribunal stated that
[1358] 185 SCC, Case No. V (2015/150), Final Award, 14 November 2018, paras. 432 and 435.
[1359] 186 Ibid., para. 436.
[1360] [191 ICSID, Case No. ARB/13/13, Award, 27 September 2017, para. 1085.]
[1361] [236 ICSID, Case No. ARB/12/25, Award, 18 April 2017, para. 280, referring to CME Czech
Republic B.V. v. Czech Republic, Partial Award (13 September 2001), para. 583; Anatolie Stati, Gabriel Stati,
Ascom Group SA and Terra Raf Trans Traiding Ltd v. Republic of Kazakhstan (footnote [1656] 196 below),
paras. 1330–1332; and Gemplus, S.A., SLP, S.A., Gemplus Industrial, S.A. de C.V. and Talsud S.A. v. United
Mexican States ICSID Cases Nos. ARB(AF)/04/03 & ARB(AF)/04, Award, 16 June 2009, para. 11.12.]
Article 31 345
[i]t follows that any compensation to be awarded by this Tribunal is to be decided by applying principles
of customary international law, namely ‘full reparation’ to wipe out, as far as possible, the
consequences of the Respondent’s international wrongs under the general principle long established
in the PCIJ’s judgment in Chor[z]ów Factory (1928), as also confirmed by Articles 31 and 36 of the
ILC Articles on State Responsibility.[1362] 211
The tribunal
decide[d] to use Three-Month LIBOR + 2.0% compounded quarterly as the appropriate rate for
pre-award interest [and] considered that rate to reflect a reasonable rate of interest applicable to the
Project as an investment by the Claimant, in concordance with the principles in Chorzów Factory
(1928) and Article 36 of the ILC Articles on State Responsibility.[1363] 212
[A/74/83, p. 36]
In Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, the tribunal found that
[t]he Claimant cannot claim compensation from the Respondent to the extent that the Claimant has
failed unreasonably to mitigate its loss in accordance with international law. In the Tribunal’s view,
the legal test is based upon a reasonable and not an absolute standard, as confirmed by Comment
(11) to Article 31 of the ILC Articles and Article 39 of the ILC Articles.[1364] 238
[A/74/83, p. 40]]
Permanent Court of Arbitration (under UNCITRAL Rules)
William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware, Inc.
v. Government of Canada
In William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware,
Inc. v. Government of Canada, the arbitral tribunal referred to the commentary to article
31, noting that “[u]nder international law, a failure by an injured State to take reasonable
steps to limit the losses it incurred as a result of an internationally wrongful act by
another State may result in a reduction of recovery to the extent of the damage that could
have been avoided”.[1365] 115
The arbitral tribunal noted that “the duty to mitigate is a restriction on compensatory
damages”, whose rationale “is to encourage efficiency and to minimize the consequences of
unlawful conduct (such as a breach of a treaty)”.[1366] 116 The tribunal specified that the “duty
to mitigate applies if: (i) a claimant is unreasonably inactive following a breach of a treaty; or
(ii) a claimant engages in unreasonable conduct following a breach of treaty”.[1367] 117 The tribunal
explained that the “first limb of the mitigation principle concerns the unreasonable
failure by the claimant to act subsequent to a breach of treaty, where it could have reduced
the damages arising (including by incurring certain additional expenses)”, while the second
[1362] [211 ICSID, Case No. ARB/14/4, Award, 31 August 2018, paras. 10.96–10.97.]
[1363] [212 Ibid., para. 10.138.]
[1364] [238 Ibid., paras. 10.124–10.125.]
[1365] 115 PCA, Case No. 2009–04, Award on Damages, 10 January 2019, para. 196.
[1366] 116 Ibid., para. 204.
[1367] 117 Ibid.
346 Article 31
limb, “conversely, concerns the unreasonable incurring of expenses by the claimant subsequent
to a treaty breach, which results in increasing the size of its claim”.[1368] 118
[A/77/74, p. 22]
International Tribunal for the Law of the Sea
M/V “Norstar” (Panama v. Italy)
In M/V “Norstar” (Panama v. Italy), the International Tribunal for the Law of the Sea
recalled that article 31 “is part of customary international law”,[1369] 119 and emphasized “the
requirement of a causal link between the wrongful act committed and damage suffered”.[1370] 120
[A/77/74, p. 23]
Permanent Court of Arbitration (under UNCITRAL Rules)
Serafín García Armas and Karina García Gruber v. Bolivarian Republic of Venezuela
In Serafín García Armas and Karina García Gruber v. Bolivarian Republic of Venezuela,
the arbitral tribunal cited article 31, noting that “customary international law also
recognizes the right of the Claimants to full reparation for the damage suffered as a consequence
of the acts of the Defendant”.[1371] 121
[A/77/74, p. 23]
International arbitral tribunal (under the ICSID Convention)
9REN Holding S.à.r.l. v. Kingdom of Spain
In 9REN Holding S.à.r.l. v. Kingdom of Spain, the arbitral tribunal noted that in absence
of pertinent “explicit guidance to quantum” in the Energy Charter Treaty, “resort is had to
the customary international law principle of full compensation”, referring to article 31.[1372] 122
[A/77/74, p. 23]
SolEs Badajoz GmbH v. Kingdom of Spain
In SolEs Badajoz GmbH v. Kingdom of Spain, the arbitral tribunal considered that the
compensation owed by the State to the investor was “governed by the customary international
law of State responsibility”, referring to the Case concerning the Factory at Chorzów
[1368] 118 Ibid., para. 205.
[1369] 119 ITLOS, see footnote [72] 12 above, p. 95, para. 318, citing Responsibilities and obligations
of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011,
p. 10, at p. 62, para. 194.
[1370] 120 Ibid., pp. 97–98, para. 333, citing M/V “Virginia G” (Panama/Guinea Bissau) (footnote
[58] 11 above), pp. 118–120, paras. 435, 439 and 442.
[1371] 121 PCA, Case No. 2013–03, Final Award, 26 April 2019, para. 476.
[1372] 122 ICSID, Case No. ARB/15/15, Award, 31 May 2019, para. 373.
Article 31 347
and article 31.[1373] 123 The tribunal emphasized that “the injury for which reparation is due
includes damage ‘caused by’ the State’s internationally wrongful act”, and, quoting the
commentary to article 31, noted that the “notion of a sufficient causal link which is not too
remote is embodied in the general requirement in article 31”.[1374] 124
[A/77/74, p. 23]
Glencore International A.G. and C.I. Prodeco S.A. v. Republic of Colombia
In Glencore International A.G. and C.I. Prodeco S.A. v. Republic of Colombia, the arbitral
tribunal stated that the principle of full reparation was adopted in the Case concerning
the Factory at Chorzów and “subsequently codified” in the articles.[1375] 125 The tribunal concluded
that “[c]ustomary international law rules on reparation for breaches of international
law are set out in the ILC Articles”, citing in particular article 31.[1376] 126
[A/77/74, p. 24]
Inter-American Court of Human Rights
Álvarez Ramos v. Venezuela
In Álvarez Ramos v. Venezuela, the Inter-American Court of Human Rights cited the
State responsibility articles and the American Convention on Human Rights, indicating
“that any violation of an international obligation that has produced harm entails the obligation
to make adequate reparation and that this provision reflects a customary norm that constitutes
one of the fundamental principles of contemporary law on State responsibility”.[1377] 127
[A/77/74, p. 24]
International arbitral tribunal (under the ICSID Convention)
OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain
The arbitral tribunal in OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v.
Kingdom of Spain observed that while the applicable investment protection treaty did not
“specify the consequences of a breach …, customary international law applies”. The tribunal
recalled that “the relevant principles of customary international law are derived from
the … judgment [of the Permanent Court of International Justice] in the Chorzów Factory
Case and are recorded in Articles 31–38 of the ILC Draft Articles”.[1378] 128
[A/77/74, p. 24]
[1373] 123 ICSID, Case No. ARB/15/38, Award, 31 July 2019, para. 476, citing Permanent Court of
International Justice, Case concerning the Factory at Chorzów, Merits, Judgment No. 13 (footnote [28] 34
above), Series A, No. 17, p. 1, at p. 47.
[1374] 124 ICSID, Case No. ARB/15/38, ibid., para. 477.
[1375] 125 ICSID, Case No. ARB/16/6, Award, 27 August 2019, para. 1567.
[1376] 126 Ibid., paras. 1569–1570.
[1377] 127 IACHR, Series C, No. 380, Judgment (Preliminary Objection, Merits, Reparations and
Costs), 30 August 2019, para. 192.
[1378] 128 ICSID, Case No. ARB/15/36, Award, 6 September 2019, para. 609.
348 Article 31
Perenco Ecuador Limited v. Ecuador
While assessing the amount of compensation owed by the State to the investor, the
arbitral tribunal in Perenco Ecuador Limited v. Ecuador found that no compensation was
owed during the period prior to the promulgation of a decree that had violated the standard
of protection contained in the relevant investment treaty, recalling that according to
the commentary to article 31, “it is only ‘[i]njury … caused by the internationally wrongful
act of a State’ for which full reparation must be made”.[1379] 129
[A/77/74, p. 24]
Inter-American Court of Human Rights
Cesti Hurtado v. Peru
In an order in Cesti Hurtado v. Peru, the Inter-American Court of Human Rights
cited articles 1 and 31, recalling that “whenever a State is found responsible for an internationally
wrongful act that has caused damage, an obligation arises for that State to make
full reparation for the damage”.[1380] 130
[A/77/74, p. 24]
International arbitral tribunal (under the ICSID Convention)
RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v. Kingdom of Spain
The arbitral tribunal in RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v. Kingdom
of Spain referred to article 31 and the commentary thereto, noting the “basic proposition
that reparation must, ‘as far as possible, wipe out all the consequences of the illegal act and
re-establish the situation which would, in all probability, have existed if that act had not
been committed’”.[1381] 131
[A/77/74, p. 25]
Ad hoc committee (under the ICSID Convention)
Víctor Pey Casado and Foundation President Allende v. Republic of Chile
The ad hoc committee in the annulment proceeding Víctor Pey Casado and Foundation
President Allende v. Republic of Chile rejected an argument that the nature of the violation
as a single act or continuous conduct could affect the analysis pertaining to adequate
compensation. Instead, it noted that “[i]t does not make any difference whether a wrongful
act is a single act or ‘a course of conduct’, as explicitly provided for in Articles 14 and 15 of
the Articles on State Responsibility. A course of conduct cannot remove the wrongfulness of
[1379] 129 ICSID, Case No. ARB/08/6, Award, 27 September 2019, para. 127.
[1380] 130 IACHR, Order (Request for Provisional Measures and Monitoring Compliance with Judgment),
14 October 2019, para. 30.
[1381] 131 ICSID, Case No. ARB/14/34, Decision on Jurisdiction, Liability and Certain Issues of
Quantum, 30 December 2019, paras. 685 (see also paras. 733 and 741), citing Case concerning the Factory
at Chorzów, Merits (footnote [28] 34 above), p. 47.
Article 31 349
one or many acts, and it cannot remove the obligation of the wrongdoer to make full reparation
for injury, as provided for in Article 31 of the Articles on State Responsibility”.[1382] 132
[A/77/74, p. 25]
Iran-United States Claims Tribunal
Award No. 604-A15 (II:A)/A26 (IV)/B43-FT
In a partial award rendered in 2020, the Iran-United States Claims Tribunal noted
that “[u]nder customary international law, as reflected in Article 31 (1) of the ILC Articles,
‘[t]he responsible State is under an obligation to make full reparation for the injury caused
by the internationally wrongful act’”.[1383] 133 Referring to the commentary to article 31, the
Tribunal indicated that “[u]nder international law, a failure by an injured State to take
reasonable steps to limit the losses it incurred as a result of an internationally wrongful
act by another State may result in a reduction of recovery to the extent of the damage that
could have been avoided”.[1384] 134
[A/77/74, p. 25]
(DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar
In (DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar, the arbitral
tribunal referred to article 31, paragraph 2, recalling that “injury ‘includes any damage,
whether material or moral, caused by the internationally wrongful act of a State’”.[1385] 135
[A/77/74, p. 25]
International arbitral tribunal (under Annex VII to the 1982 United Nations
Convention on the Law of the Sea)
The “Enrica Lexie” Incident (Italy v. India)
The arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention
on the Law of the Sea in The “Enrica Lexie” Incident (Italy v. India) recalled that
under customary international law as codified in the ILC Draft Articles on State Responsibility,
‘[t]he responsible State is under an obligation to make full reparation for the injury caused by the
internationally wrongful act’, which may include ‘any damage, whether material or moral, caused
by the internationally wrongful act’. Specifically, full reparation shall take the form of restitution,
compensation and satisfaction, either singly or in combination.[1386] 136
[A/77/74, p. 25]
[1382] 132 See footnote [860] 132 above, para. 681.
[1383] 133 See footnote [380] 31 above, para. 1787.
[1384] 134 Ibid., para. 1796.
[1385] 135 See footnote [1029] 108 above, para. 396.
[1386] 136 See footnote [384] 34 above, para. 1082.
350 Article 31
Permanent Court of Arbitration (under UNCITRAL Rules)
Deutsche Telekom AG v. Republic of India
In Deutsche Telekom AG v. Republic of India, the arbitral tribunal opined that it “must
seek to implement the full reparation principle under customary international law as set
out in Chorzów and restated in the ILC Articles, a point which is undisputed”.[1387] 137 Furthermore,
the tribunal recalled that:
[I]n accordance with Article 31 of the ILC Articles, the determination of damages under international
law implies a three-step process:
i. establishing a breach;
ii. ascertaining that the injury was caused by that breach (causation); and
iii. determining the amount of compensation due for the injury caused (valuation or quantification
of damages).[1388] 138
[A/77/74, p. 26]
Inter-American Court of Human Rights
Galindo Cárdenas et al. v. Peru
In a provisional measures order in the case of Galindo Cárdenas et al. v. Peru, the Inter-
American Court of Human Rights cited articles 1 and 31, noting that “under international
law, whenever a State is found responsible for an internationally wrongful act that has caused
damage, an obligation arises for that State to make full reparation for the damage”.[1389] 139
[A/77/74, p. 26]
International arbitral tribunal (under the ICSID Convention)
STEAG GmbH v. Kingdom of Spain
The arbitral tribunal in STEAG GmbH v. Kingdom of Spain found that in the absence
of a specific rule on compensation in the applicable investment treaty, the general rule of
article 31 was applicable,[1390] 140 pursuant to which “the internationally wrongful conduct
of the State must be the actual and proximate cause of the damage”.[1391] 141
[A/77/74, p. 26]
[1387] 137 PCA, Case No. 2014–10, Final Award, 27 May 2020, para. 287.
[1388] 138 Ibid., para. 119.
[1389] 139 IACHR, Order (Request for Provisional Measures and Monitoring Compliance with Judgment),
3 September 2020, para. 17.
[1390] 140 ICSID, Case No. ARB/15/4, Decision on Jurisdiction, Liability and Directions on Quantum,
8 October 2020, para. 745.
[1391] 141 Ibid., para. 748.
Article 31 351
Permanent Court of Arbitration (under UNCITRAL Rules)
Cairn Energy PLC and Cairn UK Holdings Limited v. Republic of India
In Cairn Energy PLC and Cairn UK Holdings Limited v. Republic of India, the arbitral
tribunal, citing article 31 and the commentary thereto, noted that India was “only under an
obligation to repair ‘the injury caused by the internationally wrongful act’, which includes
‘any damage, whether material or moral, caused by the internationally wrongful act’”, and
that “it is only ‘the injury resulting from or ascribable to the wrongful act, rather than any and
all consequences flowing from an internationally wrongful act’, that must be repaired”.[1392] 142
[A/77/74, p. 26]
International arbitral tribunal (under the ICSID Convention)
Silver Ridge Power B.V. v. Italian Republic
The arbitral tribunal in Silver Ridge Power B.V. v. Italian Republic considered that under
article 31, paragraph 1,
which represents customary international law, the State responsible for an internationally wrongful
act is under an obligation to make full reparation for the injury caused by the internationally
wrongful act. Hence, there can be no doubt that, under general international law, the existence of a
causal link between the alleged infringement of obligations under international law and the damage
ensuing from it is an indispensable prerequisite for a compensation claim.[1393] 143
The tribunal also cited articles 1 and 2.[1394] 144
[A/77/74, p. 26]
Inter-American Commission on Human Rights
Ronald Enrique Castedo Allerding v. Bolivia
In Ronald Enrique Castedo Allerding v. Bolivia, the Inter-American Commission on
Human Rights, citing article 31, mentioned that it is a “cardinal principle of public international
law … that when a State violates any of its international obligations, it incurs
international responsibility, which immediately places upon it the obligation to make full
reparation for the damage caused by its incompliance”.[1395] 145 Thus, reparation “is a secondary
obligation that arises for a State as a consequence of its violation of a primary
obligation under international law”.[1396] 146
[A/77/74, p. 27]
[1392] 142 PCA, Case No. 2016–07, Final Award, 21 December 2020, para. 1862.
[1393] 143 ICSID, Case No. ARB/15/37, Award, 26 February 2021, para. 513.
[1394] 144 Ibid., para. 512.
[1395] 145 Inter-American Commission of Human Rights, Petition No. 1178–13, Admissibility Report
No. 117/21, 13 June 2021, para. 40.
[1396] 146 Ibid.
352 Article 31
Permanent Court of Arbitration (under UNCITRAL Rules)
OOO Manolium Processing v. Republic of Belarus
Citing articles 31 and 36, the arbitral tribunal in OOO Manolium Processing v. Republic
of Belarus indicated that the provision of the treaty concerned in that case
stating that adequate compensation shall be calculated as the fair market value is in line with the
principle of full reparation of the injury caused, firmly established in jurisprudence since the seminal
Chorzów Factory decision of the Permanent Court of International Justice and subsequently
codified in the ILC Articles.[1397] 147
[A/77/74, p. 27]
Ad hoc committee (under the ICSID Convention)
Infrastructure Services Luxembourg S.à.r.l. and Energía Termosolar B.V. v. Kingdom of Spain
The ad hoc committee in the annulment proceeding Infrastructure Services Luxembourg
S.à.r.l. and Energía Termosolar B.V. v. Kingdom of Spain cited the text of article 31,
indicating that international law “provides that reparation must ‘as far as possible, wipe
out all the consequences of the illegal act and re-establish the situation which would, in all
probability, have existed if that act had not been committed’”.[1398] 148
[A/77/74, p. 27]
International arbitral tribunal (under the ICSID Convention)
Eco Oro Minerals Corp. v. Republic of Colombia
The arbitral tribunal in Eco Oro Minerals Corp. v. Republic of Colombia noted that, pursuant
to article 31, “Colombia is only required to make full reparation for damage ‘caused
by’ the wrongful act”.[1399] 149 However, the investor “must adduce ‘persuasive evidence’ that
its loss was proximately caused by Colombia’s actions”.[1400] 150 The tribunal accepted, in
terms of ascertaining the quantum of loss, “that the appropriate standard is full reparation
for the loss suffered as a result of the breach, as provided for in the ILC Draft Articles”.[1401] 151
[A/77/74, p. 27]
[1397] 147 See footnote [799] 86 above, para. 618.
[1398] 148 ICSID, Case No. ARB/13/31, Decision on Annulment, 30 July 2021, para. 251, citing Case
concerning the Factory at Chorzów, Merits, (footnote [28] 34 above), p. 47.
[1399] 149 See footnote [401] 51 above, para. 839.
[1400] 150 Ibid., para. 839.
[1401] 151 Ibid., para. 894.
Article 31 353
International arbitral tribunal (under the ICSID Additional Facility Rules)
Lion Mexico Consolidated L.P. v. United Mexican States
The arbitral tribunal in Lion Mexico Consolidated L.P. v. United Mexican States indicated
that “[t]he customary international law principle of full reparation has been embodied
in Art. 31(1)”.[1402] 152
[A/77/74, p. 28]
International arbitral tribunal (under the ICSID Convention)
Pawlowski AG and Project Sever s.r.o. v. Czech Republic
In Pawlowski AG and Project Sever s.r.o. v. Czech Republic, the arbitral tribunal cited
article 31, which, as a “second consequence” of internationally wrongful acts, “requires that
the delinquent State make ‘full reparation’ for the ‘injury caused’”.[1403] 153
[A/77/74, p. 28]
Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine
Republic
The arbitral tribunal in Casinos Austria International GmbH and Casinos Austria
Aktiengesellschaft v. Argentine Republic stated that the duty to provide full reparation was part
of “customary international law … and is enshrined in Article 31 (1) of the ILC Articles”.[1404] 154
The tribunal emphasized that “there must be a proximate causal link between the violation of
international law and the injury caused to Claimants” and that “only ‘the injury caused by the
internationally wrongful act’ has to be fully repaired. By contrast, hypothetical, speculative as
well as undetermined and remote damage cannot be compensated”.[1405] 155
Additionally, the arbitral tribunal found that the duty to provide full compensation
“also encompasses consequential damages that Claimants would not have incurred ‘but
for’ Respondent’s unlawful conduct”, including “consequential damage that occurred after
the internationally wrongful act occurred”.[1406] 156
[A/77/74, p. 28]
Permanent Court of Arbitration (under UNCITRAL Rules)
Bank Melli Iran and Bank Saderat Iran v. Kingdom of Bahrain
The arbitral tribunal in Bank Melli Iran and Bank Saderat Iran v. Kingdom of Bahrain
cited the text of article 31 and recalled that “it is a basic principle of international law that
States incur responsibility for their internationally wrongful acts. The corollary to this
[1402] 152 ICSID, Case No. ARB(AF)/15/2, Award, 20 September 2021, para. 623.
[1403] 153 See footnote [402] 52 above, para. 725.
[1404] 154 See footnote [193] 26 above, para. 441.
[1405] 155 Ibid., para. 442.
[1406] 156 Ibid., para. 575.
354 Article 31
principle is that the responsible State must repair the damage caused by its internationally
wrongful act”.[1407] 157 The tribunal also referred to articles 36[1408] 158 and 37.[1409] 159
[A/77/74, p. 28]
International Court of Justice
Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda)
In its judgment on reparations in Armed Activities on the Territory of the Congo (Democratic
Republic of Congo v. Uganda), the International Court of Justice noted that article 31
“reflects customary international law”.[1410] 160 In its analysis of expert evidence on the loss of
lives during the conflict, the Court stated that “[s]ome of the lives lost during the conflict
(the number of which cannot be determined) may be regarded as having a cause that is too
remote from the internationally wrongful acts of Uganda to be a basis for a claim of reparation
against it”, and concluded that “the mortality surveys presented as evidence cannot contribute
to the determination of the number of lives lost that are attributable to Uganda”.[1411] 161
[A/77/74, p. 28]
[…] the International Court of Justice referred to the commentary to articles 31 and
47, noting that
in certain situations in which multiple causes attributable to two or more actors have resulted in
injury, a single actor may be required to make full reparation for the damage suffered … . In other
situations, in which the conduct of multiple actors has given rise to injury, responsibility for part of
such injury should instead be allocated among those actors.[1412] 233
[A/77/74, p. 38]]
[1407] 157 PCA, Case No. 2017–25, Final Award, 9 November 2021, para. 738.
[1408] 158 Ibid., para. 740.
[1409] 159 Ibid., para. 701.
[1410] 160 ICJ, Judgment (Reparations), 9 February 2022, para. 70.
[1411] 161 Ibid., para. 148.
[1412] [233 Ibid., para. 98.]
355
Article 32. Irrelevance of internal law
The responsible State may not rely on the provisions of its internal law as justification
for failure to comply with its obligations under this Part.
Commentary
(1) Article 3 concerns the role of internal law in the characterization of an act as wrongful.
Article 32 makes clear the irrelevance of a State’s internal law to compliance with the
obligations of cessation and reparation. It provides that a State which has committed an
internationally wrongful act may not invoke its internal law as a justification for failure
to comply with its obligations under this part. Between them, articles 3 and 32 give effect
for the purposes of State responsibility to the general principle that a State may not rely
on its internal law as a justification for its failure to comply with its international obligations.[
1413]477 Although practical difficulties may arise for a State organ confronted with an
obstacle to compliance posed by the rules of the internal legal system under which it is
bound to operate, the State is not entitled to oppose its internal law or practice as a legal
barrier to the fulfilment of an international obligation arising under Part Two.
(2) Article 32 is modelled on article 27 of the 1969 Vienna Convention, which provides that a
party may not invoke the provisions of its internal law as justification for its failure to perform
a treaty. This general principle is equally applicable to the international obligations deriving
from the rules of State responsibility set out in Part Two. The principle may be qualified by the
relevant primary rule, or by a lex specialis, such as article 50 of the European Convention on
Human Rights, which provides for just satisfaction in lieu of full reparation “if the internal law
of the High Contracting Party concerned allows only partial reparation to be made”.[1414] 478
(3) The principle that a responsible State may not rely on the provisions of its internal law
as justification for failure to comply with its obligations arising out of the commission of
an internationally wrongful act is supported both by State practice and international decisions.
For example, the dispute between Japan and the United States in 1906 over California’s
discriminatory education policies was resolved by the revision of the Californian legislation.[
1415] 479 In the incident concerning article 61, paragraph 2, of the Weimar Constitution
(Constitution of the Reich of 11 August 1919), a constitutional amendment was provided for
in order to ensure the discharge of the obligation deriving from article 80 of the Treaty of
Peace between the Allied and Associated Powers and Germany (Treaty of Versailles).[1416] 480
In the Peter Pázmány University case, PCIJ specified that the property to be returned should
be “freed from any measure of transfer, compulsory administration, or sequestration”.[1417] 481
In short, international law does not recognize that the obligations of a responsible State under
[1413] 477 See paragraphs (2) to (4) of the commentary to article 3.
[1414] 478 Article 41 of the Convention, as amended by Protocol No. 11 to the Convention for the Protection
of Human Rights and Fundamental Freedoms, restructuring the control machinery established
thereby. Other examples include article 32 of the Revised General Act for the Pacific Settlement of International
Disputes and article 30 of the European Convention for the Peaceful Settlement of Disputes.
[1415] 479 See R. L. Buell, “The development of the anti-Japanese agitation in the United States”, Political
Science Quarterly, vol. 37 (1922), pp. 620 et seq.
[1416] 480 See British and Foreign State Papers, 1919 (London, H. M. Stationery Office, 1922), vol. 112, p. 1094.
[1417] 481 Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter
Pázmány University), Judgment, 1933, P.C.I.J., Series A/B, No. 61, p. 208, at p. 249.
356 Article 32
Part Two are subject to the State’s internal legal system nor does it allow internal law to count
as an excuse for non-performance of the obligations of cessation and reparation.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited v. The Russian Federation, Yukos Universal Limited v. The Russian
Federation and Veteran Petroleum Limited v. The Russian Federation
The arbitral tribunal constituted to hear the Hulley Enterprises Limited v. The Russian
Federation, Yukos Universal Limited v. The Russian Federation and Veteran Petroleum
Limited v. The Russian Federation cases accepted an expert opinion, submitted by James
Crawford, which cited articles 3 and 32 in support of the proposition that there existed “a
strong presumption of the separation of international from national law”.[1418] 163
[A/68/72, para. 114]
Inter-American Court of Human Rights
Case of Gelman v. Uruguay
In an order in the Case of Gelman v. Uruguay, the Inter-American Court of Human Rights
cited the State responsibility articles in support of the assertion that “no pueden, por razones
de orden interno, dejar de asumir la responsabilidad internacional ya establecida”.[1419] 165
[A/71/80, para. 116]
African Court on Human and Peoples’ Rights
Tanganyika Law Society and Reverend Christopher Mtikila. v. Republic of Tanzania
In Tanganyika Law Society and Reverend Christopher Mtikila. v. Republic of Tanzania,
the African Court on Human and Peoples’ Rights noted that article 32 provided that
‘“the Responsible State may not rely on the provisions of its internal law as justification for
failure to comply with its obligations’”.[1420] 166
[A/71/80, para. 117]
International arbitral tribunal (under the ICSID Convention)
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal
noted that, “[i]nternal laws, per ILC Article 32, do not justify the failure to provide repara-
[1418] 163 See footnotes [159] 24, [160] 25 and [161] 26 above, para. 316.
[1419] 165 IACHR, Order, 20 March 2013, para. 59, footnote 38.
[1420] 166 African Court on Human and Peoples’ Rights, Application Nos. 009/2011 and 011/2011,
Judgment, 14 June 2013, para. 108 (quoting article 32).
Article 32 357
tion; obstacles in administration or politics are also insufficient. Proportionality is such
that restitution is only barred if ‘there is a grave disproportionality’ between the remedy
awarded and the relevant breach”.[1421] 167 The tribunal also stated that “Article 32 of the ILC
Articles prohibits a state from relying on its internal laws to justify non-compliance with
its international obligations”.[1422] 168
[A/71/80, para. 118]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under,
part III, “Principal legal and other texts”,[1423] 150 which were relevant with regard to the
parties’ claims for relief.[1424] 151
[A/74/83, p. 28]]
Renco Group v. Republic of Peru
The arbitral tribunal in Renco Group v. Republic of Peru referred to article 32, noting that
[w]hile international law generally holds individual States’ internal law to be irrelevant to a State’s
obligations under international law, [the tribunal] nevertheless acknowledges that issues may arise
in respect of which there is no clearly applicable treaty or customary international law obligation. …
In this domain, and especially where the international rule to be applied finds its origin in analogous
national law, the ‘rules generally accepted by municipal legal systems’ may be invoked in order that
the ultimate result not ‘lose touch with reality’.[1425] 162
[A/77/74, p. 29]
Court of Justice of the European Union
European Commission v. Hungary
In European Commission v. Hungary, the Grand Chamber of the Court of Justice of
the European Union found that it was clear from article 32 “that the responsible State may
not rely on the provisions of its internal law as justification for failure to comply with its
obligations under international law”.[1426] 163
[A/77/74, p. 29]
[1421] 167 See footnote [114] 24 above, para. 690 (quoting para. (11) of the commentary to article 35).
[1422] 168 Ibid., para. 725.
[1423] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1424] [151 Ibid., para. 9.9.]
[1425] 162 See footnote [796] 83 above, para. 213.
[1426] 163 See footnote [189] 22 above, para. 90.
358
Article 33. Scope of international obligations set out in this Part
1. The obligations of the responsible State set out in this Part may be owed to
another State, to several States, or to the international community as a whole, depending
in particular on the character and content of the international obligation and on
the circumstances of the breach.
2. This Part is without prejudice to any right, arising from the international responsibility
of a State, which may accrue directly to any person or entity other than a State.
Commentary
(1) Article 33 concludes the provisions of chapter I of Part Two by clarifying the scope and
effect of the international obligations covered by the Part. In particular, paragraph 1 makes it
clear that identifying the State or States towards which the responsible State’s obligations in
Part Two exist depends both on the primary rule establishing the obligation that was breached
and on the circumstances of the breach. For example, pollution of the sea, if it is massive
and widespread, may affect the international community as a whole or the coastal States of a
region; in other circumstances it might only affect a single neighbouring State. Evidently, the
gravity of the breach may also affect the scope of the obligations of cessation and reparation.
(2) In accordance with paragraph 1, the responsible State’s obligations in a given case may
exist towards another State, several States or the international community as a whole. The
reference to several States includes the case in which a breach affects all the other parties
to a treaty or to a legal regime established under customary international law. For instance,
when an obligation can be defined as an “integral” obligation, the breach by a State necessarily
affects all the other parties to the treaty.[1427] 482
(3) When an obligation of reparation exists towards a State, reparation does not necessarily
accrue to that State’s benefit. For instance, a State’s responsibility for the breach of an
obligation under a treaty concerning the protection of human rights may exist towards all
the other parties to the treaty, but the individuals concerned should be regarded as the ultimate
beneficiaries and in that sense as the holders of the relevant rights. Individual rights
under international law may also arise outside the framework of human rights.[1428] 483 The
range of possibilities is demonstrated from the ICJ judgment in the LaGrand case, where
the Court held that article 36 of the Vienna Convention on Consular Relations “creates
individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in
this Court by the national State of the detained person”.[1429] 484
(4) Such possibilities underlie the need for paragraph 2 of article 33. Part Two deals with
the secondary obligations of States in relation to cessation and reparation, and those obligations
may be owed, inter alia, to one or several States or to the international community
as a whole. In cases where the primary obligation is owed to a non-State entity, it may be
that some procedure is available whereby that entity can invoke the responsibility on its
[1427] 482 See further article 42 (b) (ii) and commentary.
[1428] 483 Cf. Jurisdiction of the Courts of Danzig (footnote [141] 82 above), pp. 17–21.
[1429] 484 LaGrand, Judgment (footnote [236] 119 above), para. 77. In the circumstances the Court
did not find it necessary to decide whether the individual rights had “assumed the character of a human
right” (para. 78).
Article 33 359
own account and without the intermediation of any State. This is true, for example, under
human rights treaties which provide a right of petition to a court or some other body for
individuals affected. It is also true in the case of rights under bilateral or regional investment
protection agreements. Part Three is concerned with the invocation of responsibility
by other States, whether they are to be considered “injured States” under article 42, or
other interested States under article 48, or whether they may be exercising specific rights
to invoke responsibility under some special rule (art. 55). The articles do not deal with the
possibility of the invocation of responsibility by persons or entities other than States, and
paragraph 2 makes this clear. It will be a matter for the particular primary rule to determine
whether and to what extent persons or entities other than States are entitled to invoke
responsibility on their own account. Paragraph 2 merely recognizes the possibility: hence
the phrase “which may accrue directly to any person or entity other than a State”.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Additional Facility Rules)
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the
United Mexican States
In its 2007 award, the tribunal established to hear the case of Archer Daniels Midland
Company and Tate & Lyle Ingredients Americas, Inc. v. Mexico, after holding that Chapter
Eleven of NAFTA enjoys the status of lex specialis in relation to the State responsibility
articles,[1430] 49 noted that Chapter Eleven includes the possibility of private claimants (who are
nationals of a NAFTA member State) invoking in an international arbitration the responsibility
of another NAFTA member State. Accordingly, “it is a matter of the particular provisions of
Chapter Eleven to determine whether and to what extent persons or entities other than States
are entitled to invoke responsibility on their own account”. In support of this latter assertion
the tribunal cited article 33, paragraph 2, of the State responsibility articles, which provides
that the customary rules on state responsibility codified therein operate “… without prejudice
to any right, arising from the international responsibility of a State, which may accrue directly
to any person or entity other than a State”. Accordingly, in the view of the tribunal:
Customary international law—pursuant to which only sovereign States may invoke the responsibility
of another State—does not therefore affect the rights of non-State actors under particular treaties
to invoke state responsibility. This rule is not only true in the context of investment protection, but
also in the human rights and environmental protection arena.[1431] 50
[A/65/76, para. 33]
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
The arbitral tribunal in Hulley Enterprises Limited (Cyprus) v. The Russian Federation was
[1430] 49 See article 55 below.
[1431] 50 Archer Daniels Midland Company (footnote [3] 4 above), para. 118.
360 Article 33
aware that Part II of the ILC Articles on State Responsibility, which sets out the consequences of
internationally wrongful acts, is concerned with claims between States and may not directly apply
to cases involving persons or entities other than States. That being said, the ILC Articles reflect customary
international law in the matter of state responsibility, and to the extent that a matter is not
ruled by the ECT and there are no circumstances commanding otherwise, the Tribunal will turn to
the ILC Articles on State Responsibility for guidance.[1432] 169
[A/71/80, para. 119]
[Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under,
part III, “Principal legal and other texts”,[1433] 150 which were relevant with regard to the
parties’ claims for relief.[1434] 151
[A/74/83, p. 28]]
International arbitral tribunal (under the ICSID Convention)
Burlington Resources Inc. v. Republic of Ecuador
In Burlington Resources Inc. v. Republic of Ecuador, the arbitral tribunal cited article 33
and the commentary to article 28 of the State responsibility articles when observing that
[w]hile Part Two of the ILC Articles, which sets out the legal consequences of internationally wrongful
acts and to which Article 31 belongs, is not applicable to the international responsibility of States
vis-à-vis non-States, it is generally accepted that the ILC Articles can be transposed to the context
of investor-State disputes.[1435] 187
[A/74/83, p. 33]
ConocoPhillips Petrozuata B.V. et al. v. Bolivarian Republic of Venezuela
In addressing the principle of full reparation reflected in article 31, the arbitral tribunal
in ConocoPhillips Petrozuata B.V. et al. v. Bolivarian Republic of Venezuela referred
to article 33, indicating that “the provisions on State responsibility are ‘without prejudice
to any right, arising from the international responsibility of a State, which may accrue
directly to any person or entity other than a State’ (Art. 33(2))”.[1436] 164
[A/77/74, p. 29]
[1432] 169 See footnote [19] 7 above, footnote 10.
[1433] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1434] [151 Ibid., para. 9.9.]
[1435] 187 ICSID, Case No. ARB/08/5, Decision on Reconsideration and Award, 7 February 2017,
para. 177 and footnote 236.
[1436] 164 ICSID, Case No. ARB/07/30, Award, 8 March 2019, para. 208.
361
Chapter II
REPARATION FOR INJURY
Commentary
Chapter II deals with the forms of reparation for injury, spelling out in further detail
the general principle stated in article 31, and in particular seeking to establish more clearly
the relations between the different forms of reparation, viz. restitution, compensation and
satisfaction, as well as the role of interest and the question of taking into account any contribution
to the injury which may have been made by the victim.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Convention)
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal
indicated that “[t]he approach of customary international law to reparation is founded in
Factory at Chorzów, which is reflected in the ILC Articles on State Responsibility”.[1437] 170
[A/71/80, para. 120]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under,
part III, “Principal legal and other texts”,[1438] 150 which were relevant with regard to the
parties’ claims for relief.[1439] 151
[A/74/83, p. 28]]
[1437] 170 See footnote [114] 24 above, para. 761.
[1438] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1439] [151 Ibid., para. 9.9.]
362
Article 34. Forms of reparation
Full reparation for the injury caused by the internationally wrongful act shall take
the form of restitution, compensation and satisfaction, either singly or in combination,
in accordance with the provisions of this chapter.
Commentary
(1) Article 34 introduces chapter II by setting out the forms of reparation which separately
or in combination will discharge the obligation to make full reparation for the injury
caused by the internationally wrongful act. Since the notion of “injury” and the necessary
causal link between the wrongful act and the injury are defined in the statement of the
general obligation to make full reparation in article 31,[1440] 485 article 34 need do no more
than refer to “[f]ull reparation for the injury caused”.
(2) In the Factory at Chorzów case, the injury was a material one and PCIJ dealt only with
two forms of reparation, restitution and compensation.[1441] 486 In certain cases, satisfaction
may be called for as an additional form of reparation. Thus, full reparation may take
the form of restitution, compensation and satisfaction, as required by the circumstances.
Article 34 also makes it clear that full reparation may only be achieved in particular cases
by the combination of different forms of reparation. For example, re-establishment of the
situation which existed before the breach may not be sufficient for full reparation because
the wrongful act has caused additional material damage (e.g. injury flowing from the loss
of the use of property wrongfully seized). Wiping out all the consequences of the wrongful
act may thus require some or all forms of reparation to be provided, depending on the type
and extent of the injury that has been caused.
(3) The primary obligation breached may also play an important role with respect to the
form and extent of reparation. In particular, in cases of restitution not involving the return
of persons, property or territory of the injured State, the notion of reverting to the status
quo ante has to be applied having regard to the respective rights and competences of the
States concerned. This may be the case, for example, where what is involved is a procedural
obligation conditioning the exercise of the substantive powers of a State. Restitution in
such cases should not give the injured State more than it would have been entitled to if the
obligation had been performed.[1442] 487
(4) The provision of each of the forms of reparation described in article 34 is subject to the
conditions laid down in the articles which follow it in chapter II. This limitation is indicated
by the phrase “in accordance with the provisions of this chapter”. It may also be affected by
any valid election that may be made by the injured State as between different forms of reparation.
For example, in most circumstances the injured State is entitled to elect to receive
compensation rather than restitution. This element of choice is reflected in article 43.
[1440] 485 See paragraphs (4) to (14) of the commentary to article 31.
[1441] 486 Case concerning the Factory at Chorzów, Merits (footnote [28] 34 above), p. 47.
[1442] 487 Thus, in the judgment in the LaGrand case (footnote [236] 119 above), ICJ indicated that
a breach of the notification requirement in article 36 of the Vienna Convention on Consular Relations,
leading to a severe penalty or prolonged detention, would require reconsideration of the fairness of the
conviction “by taking account of the violation of the rights set forth in the Convention” (p. 514, para. 125).
This would be a form of restitution which took into account the limited character of the rights in issue.
Article 34 363
(5) Concerns have sometimes been expressed that the principle of full reparation may
lead to disproportionate and even crippling requirements so far as the responsible State
is concerned. The issue is whether the principle of proportionality should be articulated
as an aspect of the obligation to make full reparation. In these articles, proportionality
is addressed in the context of each form of reparation, taking into account its specific
character. Thus, restitution is excluded if it would involve a burden out of all proportion
to the benefit gained by the injured State or other party.[1443] 488 Compensation is limited to
damage actually suffered as a result of the internationally wrongful act, and excludes damage
which is indirect or remote.[1444] 489 Satisfaction must “not be out of proportion to the
injury”.[1445] 490 Thus, each of the forms of reparation takes such considerations into account.
(6) The forms of reparation dealt with in chapter II represent ways of giving effect to the
underlying obligation of reparation set out in article 31. There are not, as it were, separate
secondary obligations of restitution, compensation and satisfaction. Some flexibility is shown
in practice in terms of the appropriateness of requiring one form of reparation rather than
another, subject to the requirement of full reparation for the breach in accordance with article
31.[1446] 491 To the extent that one form of reparation is dispensed with or is unavailable in
the circumstances, others, especially compensation, will be correspondingly more important.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International Tribunal for the Law of the Sea
M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea)
In its 1999 judgment in the M/V “SAIGA” (No. 2) case, the Tribunal referred to paragraph
1 of draft article 42 (Reparation), as adopted by the International Law Commission
on first reading,[1447] 188 to determine the reparation which Saint Vincent and the Grenadines
was entitled to obtain for damage suffered directly by it as well as for damage or
other loss suffered by the Saiga oil tanker:
Reparation may be in the form of “restitution in kind, compensation, satisfaction and
assurances and guarantees of non-repetition, either singly or in combination” (article 42,
paragraph 1, of the draft articles of the International Law Commission on State responsibility).
Reparation may take the form of monetary compensation for economically quantifiable
[1443] 488 See article 35 (b) and commentary.
[1444] 489 See article 31 and commentary.
[1445] 490 See article 37, paragraph 3, and commentary.
[1446] 491 For example, the Mélanie Lachenal case, UNRIAA, vol. XIII (Sales No. 64.V.3), p. 117, at
pp. 130–131 (1954), where compensation was accepted in lieu of restitution originally decided upon, the
Franco-Italian Conciliation Commission having agreed that restitution would require difficult internal
procedures. See also paragraph (4) of the commentary to article 35.
[1447] 188 This provision was amended and partially incorporated in article 34, as finally adopted
by the International Law Commission in 2001. The text of paragraph 1 of draft article 42 (Reparation)
adopted on first reading was as follows: “The injured State is entitled to obtain from the State which has
committed an internationally wrongful act full reparation in the form of restitution in kind, compensation,
satisfaction and assurances and guarantees of non-repetition, either singly or in combination”.
(Yearbook … 1996, vol. II (Part Two), para. 65.)
364 Article 34
damage as well as for non-material damage, depending on the circumstances of the case. The
circumstances include such factors as the conduct of the State which committed the wrongful
act and the manner in which the violation occurred. Reparation in the form of satisfaction
may be provided by a judicial declaration that there has been a violation of a right.[1448] 189
[A/62/62, para. 106]
International arbitral tribunal (under the ICSID Convention)
CMS Gas Transmission Company v. Argentine Republic
In its 2005 award, the arbitral tribunal constituted to hear the CMS Gas Transmission
Company v. Argentina case,[1449] 190 in determining the compensation due by Argentina for
its breaches of the 1991 bilateral investment treaty between the United States of America
and the Argentine Republic, made reference to articles 34, 35, 36 and 38 finally adopted
by the International Law Commission in 2001. With regard to article 34, the tribunal
considered it “broadly accepted in international law that there are three main standards of
reparation for injury: restitution, compensation and satisfaction”.[1450] 191
[A/62/62, para. 107]
International arbitral tribunal (under the ICSID Convention)
Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania
In its 2008 award, the tribunal in the Biwater Gauff (Tanzania) Ltd. v. Tanzania case,
in the context of an analysis of article 2 of the State responsibility articles, held that where
there had been “substantial interference with an investor’s rights, so as to amount to an
expropriation … there may be scope for a non-compensatory remedy for the expropriation
(e.g. injunctive, declaratory or restitutionary relief)”.[1451] 51
[A/65/76, para. 34]
Caribbean Court of Justice
Trinidad Cement Limited and TCL Guyana Incorporated v. The State of the Co-Operative
Republic of Guyana
In the Trinidad Cement Limited and TCL Guyana Incorporated v. Guyana case, the
Caribbean Court of Justice referred to a passage in the commentary to the State responsibility
articles confirming that “[i]n accordance with article 34, the function of damages is
essentially compensatory”.[1452] 52
[A/65/76, para. 35]
[1448] 189 See footnote [1096] 160 above, para. 171.
[1449] 190 See footnote [1100] 163 above.
[1450] 191 Ibid., para. 399 and footnote 211.
[1451] 51 Biwater Gauff (footnote [5] 6 above), para. 466. See article 2 above.
[1452] 52 CCJ, Case No. [2009] CCJ 5 (OJ), Judgment, 20 August 2009, para. 38, reference to paragraph
(5) of the introductory commentary to Part Two, Chapter III. See further Part Two, Chapter III.
Article 34 365
International Court of Justice
Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay)
In its 2010 judgment in the Pulp Mills on the River Uruguay case, the International
Court of Justice, citing, inter alia, the State responsibility articles, recalled that
customary international law provides for restitution as one form of reparation for injury, restitution
being the re-establishment of the situation which existed before occurrence of the wrongful
act. The Court further recalls that, where restitution is materially impossible or involves a burden
out of all proportion to the benefit deriving from it, reparation takes the form of compensation or
satisfaction, or even both.[1453] 53
[A/65/76, para. 36]
International Tribunal for the Law of the Sea (Seabed Disputes Chamber)
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area
In its advisory opinion on Responsibilities and Obligations of States Sponsoring Persons
and Entities with Respect to Activities in the Area, the Seabed Disputes Chamber referred,
with approval, to article 34 of the State responsibility articles.[1454] 165 It further expressed the
view that “the form of reparation will depend on both the actual damage and the technical
feasibility of restoring the situation to the status quo ante”.[1455] 166
[A/68/72, para. 116]
[Permanent Court of Arbitration (under UNCITRAL Rules)
British Caribbean Bank Limited v. The Government of Belize
The arbitral tribunal, in British Caribbean Bank Limited v. The Government of Belize,
considered that “[i]n the absence of an applicable provision within the Treaty itself, establishing
the standard of compensation as a matter of lex specialis, the applicable standard of
compensation is that existing in customary international law, as set out by the Permanent
Court of International Justice in the Factory at Chorzów” and articles 31, 34 and 35 of the
Articles of State Responsibility, as cited by the tribunal.[1456] 152
[A/71/80, para. 109]
The arbitral tribunal also noted that “the approach it has taken in the application of
the Chorzów Factory standard and the ILC Articles on State Responsibility to provide the
Claimant with full reparation calls for the Tribunal to place the Claimant in the circumstances
in which it would have found itself, but for the unlawful act. The Tribunal consid-
[1453] 53 ICJ, Judgment, 20 April 2010, para. 273.
[1454] 165 See footnote [12] 10 above, para. 196.
[1455] 166 Ibid., para. 197.
[1456] [152 PCA, Case No. 2010–18, Award, 19 December 2014, paras. 287–291.]
366 Article 34
ers that this logic leads to the application of the regular rate of interest under the contract,
rather than the penalty rate”.[1457] 153
[A/71/80, para. 110]]
International arbitral tribunal (under the ICSID Convention)
Mr Franck Charles Arif v. Republic of Moldova
The arbitral tribunal in Mr Franck Charles Arif v. Republic of Moldova referred “to
the principles of international law summarised in Articles 34, 35 and 36 of the International
Law Commission’s Articles on State Responsibility”[1458] 172 as relevant for the analysis
regarding the award of reparation.
[A/71/80, para. 121]
Ioan Micula and others v. Romania
In Ioan Micula and others v. Romania, the arbitral tribunal referred to articles 34
and 36 in acknowledging that the obligation to make full reparation “[i]n most cases …
involves the payment of compensation”.[1459] 173 It further noted that “the commentary to
the ILC Articles limits compensation to ‘damage actually suffered as a result of the internationally
wrongful act, and excludes damage which is indirect or remote’”.[1460] 174
[A/71/80, para. 122]
Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The
Argentine Republic
In Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v.
The Argentine Republic, the arbitral tribunal cited article 34 as authority for the principle
that reparation for injury “shall take the form of restitution, compensation and satisfaction,
either singly or in combination”.[1461] 175
[A/71/80, para. 123]
African Court on Human and Peoples’ Rights
Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and
Blaise Ilboudo & the Burkinabe Human and Peoples’ Rights Movement v. Burkina Faso
The African Court on Human and Peoples’ Rights in Beneficiaries of Late Norbert
Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo and Blaise Ilboudo & the Burkinabe
[1457] [153 Ibid., para. 299.]
[1458] 172 See footnote [320] 46 above, para. 560.
[1459] 173 See footnote [1188] 133 above, para. 917.
[1460] 174 Ibid., para. 1009 (quoting para. (5) of the commentary to article 34).
[1461] 175 See footnote [63] 16 above, para. 27, footnote 16 (quoting article 34).
Article 34 367
Human and Peoples’ Rights Movement v. Burkina Faso, cited the text of article 34 in support
of the view that “reparation may take several forms”.[1462] 176
[A/71/80, para. 124]
International arbitral tribunal (under the ICSID Convention)
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal
referred to article 34 of the State responsibility articles as expanding on the principle contained
in article 31.[1463] 177 Based on the commentary to article 34, the tribunal explained
that reparation must achieve “re-establishment of the situation which existed before the
breach” and explained that “restitution is only one form of reparation. If restitution alone
fails to adequately restore a claimant to the situation it was in prior to the wrong, then
other forms of reparation may also be awarded”.[1464] 178
[A/71/80, para. 125]
Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State
of Bolivia
The arbitral tribunal in Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk
Kaplún v. Plurinational State of Bolivia noted that “Article 34 of the ILC Articles includes
satisfaction as a form of reparation”.[1465] 179
[A/71/80, para. 126]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under,
part III, “Principal legal and other texts”,[1466] 150 which were relevant with regard to the
parties’ claims for relief.[1467] 151
[A/74/83, p. 28]]
[1462] 176 See footnote [1314] 155 above, para. 29.
[1463] 177 See footnote [114] 24 above, para. 684.
[1464] 178 Ibid., para. 686 (quoting para. (2) of the commentary to article 34).
[1465] 179 See footnote [65] 18 above, para. 554 and footnote 701.
[1466] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1467] [151 Ibid., para. 9.9.]
368 Article 34
International arbitral tribunal (under the ICSID Convention)
Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The
Argentine Republic
In Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v.
The Argentine Republic, after summarizing the parties’ arguments regarding articles 28, 31,
34, 35 and 36 of the State responsibility articles,[1468] 189 the arbitral tribunal stated:
The adoption of the ILC Articles, which clearly articulate a State’s obligation to provide full reparation
in the event of a breach of an international obligation, and the practice of States in paying
reparations in these circumstances, suggest that States accept this obligation. This is not to say that
the general principle of international law that a State that has been found to have breached an international
obligation must make full reparation for any damages caused by its breach has any impact
on a State’s right to expropriate a foreigner’s property at international law. A State’s right to do so
exists at international law and, so long as the property is lawfully expropriated, there is an obligation
to compensate the owner, but not to make full reparation. The State’s obligation to make full reparation
is related to its breach of international law. Respondent’s concerns about the obligation to make
full reparation leading to disproportionate compensation are dealt with in the limiting factors that
the Parties agree are principles relating to damages in international law.[1469] 190
[A/74/83, p. 33]
Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of
Kazakhstan
The arbitral tribunal in Caratube International Oil Company LLP and Devincci Salah
Hourani v. Republic of Kazakhstan concluded, after referring to articles 31, 34 and 36 of the
State responsibility articles, that
the damages actually incurred by CIOC [Caratube International Oil Company LLP] as a result of the
Respondent’s unlawful expropriation of the Contract (as determined by a majority of the Tribunal)
are appropriately assessed using a subjective and concrete valuation approach providing full reparation
for the damages actually incurred by CIOC, without FMV [fair market value].[1470] 191
[A/74/83, p. 34]
[European Court of Human Rights
Moreira Ferreira v. Portugal (No. 2)
In Moreira Ferreira v. Portugal (No. 2), the European Court of Human Rights noted,
regarding the concept of restitution in integrum, that “DARSIWA [draft articles on State
responsibility for internationally wrongful acts] doctrine on reparation and especially of
its Articles 34–37 must be taken into consideration in the interpretation of the [European]
Convention [of Human Rights]”.[1471] 213
[A/74/83, p. 37]]
[1468] 189 See footnote [355] 45 above, paras. 1077–1088.
[1469] 190 Ibid., para. 1089.
[1470] 191 ICSID, Case No. ARB/13/13, Award of the Tribunal, 27 September 2017, para. 1085.
[1471] [213 ECHR, Grand Chamber, Application No. 19867/12, Judgment, 11 July 2017, para. 3 and footnote 6.]
Article 34 369
[International arbitral tribunal (under UNCITRAL Rules)
Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria
The arbitral tribunal in Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal
Republic of Nigeria took the view that “all organs of the State, including those which have
an independent existence in domestic law, are to be treated as part of the State. This is customary
international law, and is clear in the light of the Articles”.[1472] 42 The tribunal also
cited articles 1, 5, 9, 34, 36 and 38.[1473] 43
[A/77/74, p. 11]]
Iran-United States Claims Tribunal
Award No. 604-A15 (II:A)/A26 (IV)/B43-FT
In a partial award rendered in 2020, the Iran-United States Claims Tribunal noted that
“[t]he forms of reparation recognized under customary international law as ways of satisfying
a responsible State’s obligation to make full reparation include … restitution in kind and
compensation”.[1474] 166 The Tribunal recalled in particular the texts of articles 34 and 35.[1475] 167
[A/77/74, p. 29]
Permanent Court of Arbitration (under UNCITRAL Rules)
Cairn Energy PLC and Cairn UK Holdings Limited v. Republic of India
In Cairn Energy PLC and Cairn UK Holdings Limited v. Republic of India, the arbitral tribunal
cited article 34, noting that full reparation “shall take the form of restitution, compensation
and satisfaction, either singly or in combination”.[1476] 168 Following an analysis of the provision,
the tribunal determined that the appropriate restitution would include the withdrawal of a
tax demand by the Respondent, thus releasing the investor from any obligation to pay it.[1477] 169
[A/77/74, p. 30]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Lion Mexico Consolidated L.P. v. United Mexican States
The arbitral tribunal in Lion Mexico Consolidated L.P. v. United Mexican States
indicated that customary law, as codified in article 31, requires full reparation, and that
“[a]dditional guidance is provided by Art. 34” on the forms that such full reparation for
the injury caused may take.[1478] 170
[A/77/74, p. 30]
[1472] 42 [Final Award, 26 March 2021, para. 72.]
[1473] 43 [Ibid., paras. 72 and 134–135.]
[1474] 166 See footnote [380] 31 above, paras. 1788–1789.
[1475] 167 Ibid., paras. 1789 and 1847.
[1476] 168 See footnote [1392] 142 above, para. 1872.
[1477] 169 Ibid., paras. 1874 and 1877.
[1478] 170 See footnote [1402] 152 above, paras. 623–625.
370
Article 35. Restitution
A State responsible for an internationally wrongful act is under an obligation to
make restitution, that is, to re-establish the situation which existed before the wrongful
act was committed, provided and to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving from
restitution instead of compensation.
Commentary
(1) In accordance with article 34, restitution is the first of the forms of reparation available
to a State injured by an internationally wrongful act. Restitution involves the re-establishment
as far as possible of the situation which existed prior to the commission of the
internationally wrongful act, to the extent that any changes that have occurred in that
situation may be traced to that act. In its simplest form, this involves such conduct as the
release of persons wrongly detained or the return of property wrongly seized. In other
cases, restitution may be a more complex act.
(2) The concept of restitution is not uniformly defined. According to one definition, restitution
consists in re-establishing the status quo ante, i.e. the situation that existed prior
to the occurrence of the wrongful act. Under another definition, restitution is the establishment
or re-establishment of the situation that would have existed if the wrongful act
had not been committed. The former definition is the narrower one; it does not extend to
the compensation which may be due to the injured party for loss suffered, for example for
loss of the use of goods wrongfully detained but subsequently returned. The latter definition
absorbs into the concept of restitution other elements of full reparation and tends to
conflate restitution as a form of reparation and the underlying obligation of reparation
itself. Article 35 adopts the narrower definition which has the advantage of focusing on
the assessment of a factual situation and of not requiring a hypothetical inquiry into what
the situation would have been if the wrongful act had not been committed. Restitution in
this narrow sense may of course have to be completed by compensation in order to ensure
full reparation for the damage caused, as article 36 makes clear.
(3) Nonetheless, because restitution most closely conforms to the general principle that the
responsible State is bound to wipe out the legal and material consequences of its wrongful act
by re-establishing the situation that would exist if that act had not been committed, it comes
first among the forms of reparation. The primacy of restitution was confirmed by PCIJ in the
Factory at Chorzów case when it said that the responsible State was under “the obligation to
restore the undertaking and, if this be not possible, to pay its value at the time of the indemnification,
which value is designed to take the place of restitution which has become impossible”.
The Court went on to add that “[t]he impossibility, on which the Parties are agreed, of
restoring the Chorzów factory could therefore have no other effect but that of substituting
payment of the value of the undertaking for restitution”.[1479] 492 It can be seen in operation in
the cases where tribunals have considered compensation only after concluding that, for one
reason or another, restitution could not be effected.[1480] 493 Despite the difficulties restitution
[1479] 492 Case concerning the Factory at Chorzów, Merits (footnote [28] 34 above), p. 48.
[1480] 493 See, e.g., British Claims in the Spanish Zone of Morocco (footnote [38] 44 above), pp. 621–625
and 651–742; Religious Property Expropriated by Portugal, UNRIAA, vol. I (Sales No. 1948.V.2), p. 7
Article 35 371
may encounter in practice, States have often insisted upon claiming it in preference to compensation.
Indeed, in certain cases, especially those involving the application of peremptory
norms, restitution may be required as an aspect of compliance with the primary obligation.
(4) On the other hand, there are often situations where restitution is not available or
where its value to the injured State is so reduced that other forms of reparation take priority.
Questions of election as between different forms of reparation are dealt with in the
context of Part Three.[1481] 494 But quite apart from valid election by the injured State or
other entity, the possibility of restitution may be practically excluded, e.g. because the
property in question has been destroyed or fundamentally changed in character or the
situation cannot be restored to the status quo ante for some reason. Indeed, in some cases
tribunals have inferred from the terms of the compromis or the positions of the parties
what amounts to a discretion to award compensation rather than restitution. For example,
in the Walter Fletcher Smith case, the arbitrator, while maintaining that restitution should
be appropriate in principle, interpreted the compromis as giving him a discretion to award
compensation and did so in “the best interests of the parties, and of the public”.[1482] 495 In
the Aminoil arbitration, the parties agreed that restoration of the status quo ante following
the annulment of the concession by the Kuwaiti decree would be impracticable.[1483] 496
(5) Restitution may take the form of material restoration or return of territory, persons
or property, or the reversal of some juridical act, or some combination of them. Examples
of material restitution include the release of detained individuals, the handing over to a
State of an individual arrested in its territory,[1484] 497 the restitution of ships[1485] 498 or other
types of property,[1486] 499 including documents, works of art, share certificates, etc.[1487] 500
The term “juridical restitution” is sometimes used where restitution requires or involves
the modification of a legal situation either within the legal system of the responsible State
or in its legal relations with the injured State. Such cases include the revocation, annulment
(1920); Walter Fletcher Smith, ibid., vol. II (Sales No. 1949.V.1), p. 913, at p. 918 (1929); and Heirs of Lebas
de Courmont, ibid., vol. XIII (Sales No. 64.V.3), p. 761, at p. 764 (1957).
[1481] 494 See articles 43 and 45 and commentaries.
[1482] 495 Walter Fletcher Smith (footnote [1480] 493 above). In the Greek Telephone Company case,
the arbitral tribunal, while ordering restitution, asserted that the responsible State could provide compensation
instead for “important State reasons” (see J. G. Wetter and S. M. Schwebel, “Some little known
cases on concessions”, BYBIL, 1964, vol. 40, p. 216, at p. 221).
[1483] 496 Government of Kuwait v. American Independent Oil Company (Aminoil), ILR, vol. 66,
p. 519, at p. 533 (1982).
[1484] 497 Examples of material restitution involving persons include the “Trent” (1861) and “Florida”
(1864) incidents, both involving the arrest of individuals on board ships (Moore, Digest, vol. VII, pp. 768
and 1090–1091), and the United States Diplomatic and Consular Staff in Tehran case in which ICJ ordered
Iran to immediately release every detained United States national (footnote [80] 59 above), pp. 44–45.
[1485] 498 See, e.g., the “Giaffarieh” incident (1886) which originated in the capture in the Red Sea
by an Egyptian warship of four merchant ships from Massawa under Italian registry, Società Italiana
per l’Organizzazione Internazionale—Consiglio Nazionale delle Ricerche, La prassi italiana di diritto
internazionale, 1st series (Dobbs Ferry, N. Y., Oceana, 1970), vol. II, pp. 901–902.
[1486] 499 For example, Temple of Preah Vihear, Merits, Judgment, I.C.J. Reports 1962, p. 6, at pp. 36–37,
where ICJ decided in favour of a Cambodian claim which included restitution of certain objects removed
from the area and the temple by Thai authorities. See also the Hôtel Métropole case, UNRIAA, vol. XIII
(Sales No. 64.V.3), p. 219 (1950); the Ottoz case, ibid., p. 240 (1950); and the Hénon case, ibid., p. 248 (1951).
[1487] 500 In the Bužau-Nehoiaşi Railway case, an arbitral tribunal provided for the restitution to a German
company of shares in a Romanian railway company, UNRIAA, vol. III (Sales No. 1949.V.2), p. 1839 (1939).
372 Article 35
or amendment of a constitutional or legislative provision enacted in violation of a rule of
international law,[1488] 501 the rescinding or reconsideration of an administrative or judicial
measure unlawfully adopted in respect of the person or property of a foreigner[1489] 502
or a requirement that steps be taken (to the extent allowed by international law) for the
termination of a treaty.[1490] 503 In some cases, both material and juridical restitution may
be involved.[1491] 504 In others, an international court or tribunal can, by determining the
legal position with binding force for the parties, award what amounts to restitution under
another form.[1492] 505 The term “restitution” in article 35 thus has a broad meaning, encompassing
any action that needs to be taken by the responsible State to restore the situation
resulting from its internationally wrongful act.
(6) What may be required in terms of restitution will often depend on the content of the primary
obligation which has been breached. Restitution, as the first of the forms of reparation, is
of particular importance where the obligation breached is of a continuing character, and even
more so where it arises under a peremptory norm of general international law. In the case, for
example, of unlawful annexation of a State, the withdrawal of the occupying State’s forces and
the annulment of any decree of annexation may be seen as involving cessation rather than
restitution.[1493] 506 Even so, ancillary measures (the return of persons or property seized in the
course of the invasion) will be required as an aspect either of cessation or restitution.
(7) The obligation to make restitution is not unlimited. In particular, under article 35 restitution
is required “provided and to the extent that” it is neither materially impossible nor
wholly disproportionate. The phrase “provided and to the extent that” makes it clear that
restitution may be only partially excluded, in which case the responsible State will be obliged
to make restitution to the extent that this is neither impossible nor disproportionate.
[1488] 501 For cases where the existence of a law itself amounts to a breach of an international obligation,
see paragraph (12) of the commentary to article 12.
[1489] 502 For example, the Martini case, UNRIAA, vol. II (Sales No. 1949.V.1), p. 975 (1930).
[1490] 503 In the Bryan-Chamorro Treaty case (Costa Rica v. Nicaragua), the Central American Court of
Justice decided that “the Government of Nicaragua, by availing itself of measures possible under the authority
of international law, is under the obligation to re-establish and maintain the legal status that existed
prior to the Bryan-Chamorro Treaty between the litigant republics in so far as relates to matters considered
in this action” (Anales de la Corte de Justicia Centroamericana (San José, Costa Rica), vol. VI, Nos. 16–18
(December 1916–May 1917), p. 7); and AJIL, vol. 11, No. 3 (1917), p. 674, at p. 696; see also ibid., page 683.
[1491] 504 Thus, PCIJ held that Czechoslovakia was “bound to restore to the Royal Hungarian Peter
Pázmány University of Budapest the immovable property claimed by it, freed from any measure of
transfer, compulsory administration, or sequestration, and in the condition in which it was before the
application of the measures in question” (Appeal from a judgment of the Hungaro/Czechoslovak Mixed
Arbitral Tribunal (footnote [1417] 481 above)).
[1492] 505 In the Legal Status of Eastern Greenland case, PCIJ decided that “the declaration of occupation
promulgated by the Norwegian Government on July 10th, 1931, and any steps taken in this respect
by that Government, constitute a violation of the existing legal situation and are accordingly unlawful
and invalid” (Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 22, at p. 75). In the case of the Free Zones
of Upper Savoy and the District of Gex (footnote [138] 79 above), the Court decided that France “must
withdraw its customs line in accordance with the provisions of the said treaties and instruments; and
that this régime must continue in force so long as it has not been modified by agreement between the
Parties” (p. 172). See also F. A. Mann, “The consequences of an international wrong in international and
municipal law”, BYBIL, 1976–1977, vol. 48, p. 1, at pp. 5–8.
[1493] 506 See above, paragraph (8) of the commentary to article 30.
Article 35 373
(8) Under article 35, subparagraph (a), restitution is not required if it is “materially
impossible”. This would apply where property to be restored has been permanently lost or
destroyed, or has deteriorated to such an extent as to be valueless. On the other hand, restitution
is not impossible merely on grounds of legal or practical difficulties, even though the
responsible State may have to make special efforts to overcome these. Under article 32 the
wrongdoing State may not invoke the provisions of its internal law as justification for the
failure to provide full reparation, and the mere fact of political or administrative obstacles
to restitution does not amount to impossibility.
(9) Material impossibility is not limited to cases where the object in question has been
destroyed, but can cover more complex situations. In the Forests of Central Rhodopia case,
the claimant was entitled to only a share in the forestry operations and no claims had been
brought by the other participants. The forests were not in the same condition as at the time
of their wrongful taking, and detailed inquiries would be necessary to determine their
condition. Since the taking, third parties had acquired rights to them. For a combination
of these reasons, restitution was denied.[1494] 507 The case supports a broad understanding
of the impossibility of granting restitution, but it concerned questions of property rights
within the legal system of the responsible State.[1495] 508 The position may be different where
the rights and obligations in issue arise directly on the international plane. In that context
restitution plays a particularly important role.
(10) In certain cases, the position of third parties may have to be taken into account in
considering whether restitution is materially possible. This was true in the Forests of Central
Rhodopia case. But whether the position of a third party will preclude restitution will
depend on the circumstances, including whether the third party at the time of entering
into the transaction or assuming the disputed rights was acting in good faith and without
notice of the claim to restitution.
(11) A second exception, dealt with in article 35, subparagraph (b), involves those cases
where the benefit to be gained from restitution is wholly disproportionate to its cost to the
responsible State. Specifically, restitution may not be required if it would “involve a burden
out of all proportion to the benefit deriving from restitution instead of compensation”. This
applies only where there is a grave disproportionality between the burden which restitution
would impose on the responsible State and the benefit which would be gained, either
by the injured State or by any victim of the breach. It is thus based on considerations of
equity and reasonableness,[1496] 509 although with a preference for the position of the injured
State in any case where the balancing process does not indicate a clear preference for compensation
as compared with restitution. The balance will invariably favour the injured
State in any case where the failure to provide restitution would jeopardize its political
independence or economic stability.
[1494] 507 Forests of Central Rhodopia (footnote [1058] 382 above), p. 1432.
[1495] 508 For questions of restitution in the context of State contract arbitration, see Texaco Overseas
Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic
(1977), ILR, vol. 53, p. 389, at pp. 507–508, para. 109; BP Exploration Company (Libya) Limited v. Government
of the Libyan Arab Republic, ibid., p. 297, at p. 354 (1974); and Libyan American Oil Company
(LIAMCO) v. Government of the Libyan Arab Republic ibid., vol. 62, p. 141, at p. 200 (1977).
[1496] 509 See, e.g., J. H. W. Verzijl, International Law in Historical Perspective (Leiden, Sijthoff, 1973),
part VI, p. 744, and the position taken by the Deutsche Gesellschaft für Völkerrecht (German International
Law Association) in Yearbook … 1969, vol. II, p. 149.
374 Article 35
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Panel of Commissioners of the United Nations Compensation Commission
S/AC.26/2003/15
In its 2003 report and recommendations concerning part three of the third instalment
of “F3” claims,[1497] 192 the Panel of Commissioners of the United Nations Compensation
Commission referred inter alia to article 35 finally adopted by the International Law
Commission in 2001. The relevant passage is quoted [on pages 325–326] above.
[A/62/62, para. 108]
International arbitral tribunal (under the ICSID Convention)
CMS Gas Transmission Company v. Argentine Republic
In its 2005 award, the arbitral tribunal constituted to hear the CMS Gas Transmission
Company v. Argentina case,[1498] 193 in determining the compensation due by Argentina for
its breaches of the 1991 bilateral investment treaty between the United States of America
and the Argentine Republic, made reference to articles 34, 35, 36 and 38 finally adopted
by the International Law Commission in 2001. With regard to article 35, the tribunal
observed that “[r]estitution is the standard used to re-establish the situation which existed
before the wrongful act was committed, provided this is not materially impossible and
does not result in a burden out of proportion as compared to compensation”.[1499] 194
[A/62/62, para. 109]
ADC Affiliate Limited and ADC & ADMC Management Limited v. Republic of Hungary
In its 2006 award, the arbitral tribunal constituted to hear the ADC Affiliate Limited
and ADC & ADMC Management Limited v. Hungary case, in determining the “customary
international law standard” for damages assessment applicable in the case, noted that
article 35 finally adopted by the International Law Commission in 2001 provided that
“restitution in kind is the preferred remedy for an internationally wrongful act”.[1500] 195
[A/62/62, para. 110]
European Court of Human Rights
Verein Gegen Tierfabriken Schweiz (VgT) v. Switzerland
In the Verein Gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2) case, the European
Court of Human Rights referred to article 35 of the State responsibility articles as reflecting
“principles of international law”. The Court alluded to the qualifications in the provision, i.e.
that the obligation to make restitution was subject to such restitution not being “materially
[1497] 192 “F3” claims before the UNCC are claims filed by the Government of Kuwait, excluding
environmental claims.
[1498] 193 See footnote [1100] 163 above.
[1499] 194 Ibid., para. 400 and footnote 212.
[1500] 195 ICSID, Case No. ARB/03/16, Award, 2 October 2006, paras. 494 and 495.
Article 35 375
impossible” and not involving “a burden out of all proportion to the benefit derived from restitution
instead of compensation”, which it interpreted as meaning that “while restitution is
the rule, there may be circumstances in which the State responsible is exempted—fully or in
part—from this obligation, provided that it can show that such circumstances obtain”.[1501] 54
[A/65/76, para. 37]
Guiso-Gallisay v. Italy
In the Guiso-Gallisay v. Italy case, the European Court of Human Rights, in a case
involving alleged unlawful expropriation, cited article 35 of the State responsibility articles
(which it considered to be relevant international law) as reiterating the principle of restitutio
in integrum.[1502] 55
[A/65/76, para. 38]
Arbitration Institute of the Stockholm Chamber of Commerce
Mohammad Ammar Al-Bahloul v. The Republic of Tajikistan
In Mohammad Ammar Al-Bahloul v. The Republic of Tajikistan, the arbitral tribunal,
citing article 35, observed that “[t]he ILC Articles contemplate restitution as the principal
remedy for internationally wrongful conduct”, and recalled that “[t]he goal of restitution [was]
to restore the investor to his position before the wrongful conduct” and that “[t]his remedy,
however, should not be granted where its implementation is materially impossible … If such
case, the ILC Articles would envisage a claim for damages as the available alternative”.[1503] 167
[A/68/72, para. 117]
European Court of Human Rights
Laska and Lika v. Albania
In Laska and Lika v. Albania, the European Court of Human Rights considered article
35 as reflecting international law relevant to the case.[1504] 168 It observed that:
in the instant case, a retrial or the reopening of the case, if requested by the applicant, represented
in principle an appropriate way of redressing the violation … This also reflects the principles of
international law whereby a State responsible for a wrongful act is under an obligation to make restitution,
consisting in restoring the situation which existed before the wrongful act was committed
(Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for
Internationally Wrongful Acts … ).[1505] 169
[A/68/72, para. 118]
[1501] 54 ECHR, Grand Chamber, Verein Gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2),
Application No. 32772/02, Judgment, 30 June 2009, para. 86.
[1502] 55 ECHR, Grand Chamber, Application No. 58858/00, Judgment (Just satisfaction), 22 December
2009, para. 53.
[1503] 167 See footnote [1198] 144 above, para. 52.
[1504] 168 ECHR, Fourth Section, Application Nos. 12315/04 and 17605/04, Judgment, 20 July 2010, para. 35.
[1505] 169 Ibid., para. 75 (internal citation omitted).
376 Article 35
International Court of Justice
Jurisdictional Immunities of the State (Germany v. Italy)
In the Jurisdictional Immunities of the State (Germany v. Italy) case, the International
Court of Justice recalled that:
[a]ccording to general international law on the responsibility of States for internationally wrongful
acts … even if the [wrongful] act in question has ended, the State responsible is under an obligation
to re-establish, by way of reparation, the situation which existed before the wrongful act was
committed, provided that re-establishment is not materially impossible and that it does not involve
a burden for that State out of all proportion to the benefit deriving from restitution instead of compensation.
This rule is reflected in Article 35 of the International Law Commission’s Articles.[1506] 170
[A/68/72, para. 119]
[Permanent Court of Arbitration (under UNCITRAL Rules)
British Caribbean Bank Limited v. The Government of Belize
The arbitral tribunal, in British Caribbean Bank Limited v. The Government of Belize,
considered that “[i]n the absence of an applicable provision within the Treaty itself, establishing
the standard of compensation as a matter of lex specialis, the applicable standard of
compensation is that existing in customary international law, as set out by the Permanent
Court of International Justice in the Factory at Chorzów” and articles 31, 34 and 35 of the
Articles of State Responsibility, as cited by the tribunal.[1507] 152
[A/71/80, para. 109]
The arbitral tribunal also noted that
the approach it has taken in the application of the Chorzów Factory standard and the ILC Articles
on State Responsibility to provide the Claimant with full reparation calls for the Tribunal to place
the Claimant in the circumstances in which it would have found itself, but for the unlawful act. The
Tribunal considers that this logic leads to the application of the regular rate of interest under the
contract, rather than the penalty rate.[1508] 153
[A/71/80, para. 110]]
[International arbitral tribunal (under the ICSID Convention)
Mr Franck Charles Arif v. Republic of Moldova
The arbitral tribunal in Mr Franck Charles Arif v. Republic of Moldova referred “to the
principles of international law summarised in Articles 34, 35 and 36 of the International
Law Commission’s Articles on State Responsibility”[1509] 172 as relevant for the analysis
regarding the award of reparation.
[A/71/80, para. 121]]
[1506] 170 See footnote [788] 104 above, para. 137.
[1507] [152 PCA, Case No. 2010–18, Award, 19 December 2014, paras. 287–291.]
[1508] [153 Ibid., para. 299.]
[1509] [172 See footnote [320] 46 above, para. 560.]
Article 35 377
European Court of Human Rights
Savriddin Dzhurayev v. Russia
In Savriddin Dzhurayev v. Russia, the European Court of Human Rights referred to
article 35 in finding that, in line with the relevant principles of international law, the primary
aim of the individual measures to be taken in response to the judgment was to “put
an end to the breach of the Convention and make reparation for its consequences in such
a way as to restore as far as possible the situation existing before the breach”.[1510] 181 It also
referenced article 35 in support of the statement that “while restitution is the rule, there
may be circumstances in which the State responsible is exempted—fully or in part—from
this obligation, provided that it can show that such circumstances obtain”.[1511] 182
[A/71/80, para. 127]
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
The arbitral tribunal in Hulley Enterprises Limited (Cyprus) v. The Russian Federation,
found
that the principles on the reparation for injury as expressed in the ILC Articles on State Responsibility
are relevant in this regard. According to Article 35 of the ILC Articles, a State responsible for an
illegal expropriation is in the first place obliged to make restitution by putting the injured party into
the position that it would be in if the wrongful act had not taken place. This obligation of restitution
applies as of the date when a decision is rendered. Only to the extent where it is not possible to make
good the damage caused by restitution is the State under an obligation to compensate pursuant to
Article 36 of the ILC Articles on State Responsibility.[1512] 183
[A/71/80, para. 128]
European Court of Human Rights
Davydov v. Russia
In Davydov v. Russia, the European Court of Human Rights reiterated, with reference
to article 35, that
a judgment in which the Court finds a breach imposes on the respondent State a legal obligation
to put an end to the breach and make reparation for its consequences in such a way as to restore
as far as possible the situation existing before the breach … . This obligation reflects the principles
of international law whereby a State responsible for a wrongful act is under an obligation to make
restitution, consisting in restoring the situation that existed before the wrongful act was committed,
provided that restitution is not ‘materially impossible’ and ‘does not involve a burden out of all
proportion to the benefit deriving from restitution instead of compensation’.[1513] 184
[A/71/80, para. 129]
[1510] 181 ECHR, First Section, Application No. 71386/10, Judgment, 25 April 2013, para. 248.
[1511] 182 Ibid., para. 248.
[1512] 183 See footnote [19] 7 above, para. 1766.
[1513] 184 ECHR, First Section, Application No. 18967/07, Judgment (Merits and Just Satisfaction),
30 October 2014, para. 25 (quoting article 35).
378 Article 35
Kudeshkina v. Russia (No. 2)
In Kudeshkina v. Russia (No. 2), the European Court of Human Rights stated, with
reference to article 35, that “[t]he States should organise their legal systems and judicial
procedures so that this result [of restitutio in integrum] may be achieved”.[1514] 185 The Court
also relied on article 35 in reiterating that “while restitution is the rule, there may be circumstances
in which the State responsible is exempted—fully or in part—from this obligation,
provided that it can show that such circumstances obtain”.[1515] 186
[A/71/80, para. 130]
International arbitral tribunal (under the ICSID Convention)
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal noted
that the State responsibility articles “confirm restitution as the principal form of reparation
in international law”.[1516] 187 It acknowledged, quoting the commentary to article 35,
that “restitution restores ‘the situation that existed prior to the occurrence of the wrongful
act’”.[1517] 188 Referring to article 2, the tribunal explained that the “[b]reach of a peremptory
norm could also justify restitution”.[1518] 189 The tribunal also observed, with reference to the
articles, that restitution “may take, in practice, a wide range of forms”,[1519] 190 “encompassing
any action that needs to be taken by the responsible State to restore the situation”.[1520] 191
[A/71/80, para. 131]
In relation to the limitations on restitution as provided for in subparagraphs (a) and
(b), the arbitral tribunal noted that, in determining material impossibility as per article
35, subparagraph (a), “[t]he standard is high”.[1521] 192 Pursuant to the commentary to
article 35, “restitution is not impossible merely on grounds of legal or practical difficulties,
even though the responsible State may have to make special efforts to overcome these”.
[1522] 193 Citing the second limitation in subparagraph (b), the tribunal found that “[i]t is not
disproportionate to award title to lands unlawfully expropriated”.[1523] 194
[A/71/80, para. 132]
[1514] 185 ECHR, First Section, Application No. 28727/11, Decision, 17 February 2015, para. 55.
[1515] 186 Ibid., para. 55.
[1516] 187 See footnote [114] 24 above, para. 684.
[1517] 188 Ibid., para. 686 (quoting para. (2) of the commentary to article 35).
[1518] 189 See footnote [114] 24 above, para. 722.
[1519] 190 Ibid., para. 687.
[1520] 191 Ibid., para. 740.
[1521] 192 Ibid., para. 725.
[1522] 193 Ibid., para. 725 (quoting para. (8) of the commentary to article 35).
[1523] 194 Ibid., paras. 734–735 (quoting article 35(b)).
Article 35 379
[Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The
Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under,
part III, “Principal legal and other texts”,[1524] 150 which were relevant with regard to the
parties’ claims for relief.[1525] 151
[A/74/83, p. 28]]
[International Arbitral tribunal (under the ICSID Convention)
Joseph Houben v. Republic of Burundi
In Joseph Houben v. Republic of Burundi, the arbitral tribunal stated that article 31 of
the State responsibility articles codified the customary international law standard of integral
reparation in cases in which a State violates its international obligations.[1526] 157 Interpreting
articles 35 and 36 of the State responsibility articles, the tribunal noted that the responsible
States may only provide compensation to the extent that restitution is not possible.[1527] 158
[A/74/83, p. 29]]
[Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan
The arbitral tribunal in Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan
concluded, in the view of articles 31, 35 and 36 of the State responsibility articles, that “Karkey
is entitled to an award of damages that will erase the consequences of Pakistan’s wrongful
acts and re-establish the situation that would have existed but for such wrongful acts”.[1528] 176
[A/74/83, p. 31]]
European Court of Human Rights
Ryabkin and Volokitin v. Russia
In Ryabkin and Volokitin v. Russia, the European Court of Human Rights considered
articles 35 and 36 of the State responsibility articles as relevant international law.[1529] 193
[A/74/83, p. 34]
Guja v. The Republic of Moldova (No. 2)
The European Court of Human Rights in Guja v. The Republic of Moldova (No. 2)
cited article 35, as relevant international law and observed, with reference to article 35, that
[1524] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1525] [151 Ibid., para. 9.9.]
[1526] [157 ICSID, Case No. ARB/13/7, Award, 12 January 2016, para. 222.]
[1527] [158 Ibid., paras. 223–224.]
[1528] [176 ICSID, Case No. ARB/13/1, Award, 22 August 2017, para. 663.]
[1529] 193 ECHR, Third Section, Application Nos. 52166/08 and 8526/09, Judgment, 28 June 2016, para. 30.
380 Article 35
“[t]he States should organise their legal systems and judicial procedures so that this result
[of restitution] may be achieved”.[1530] 194
[A/74/83, p. 34]
International arbitral tribunal (under the ICSID Convention)
Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
The arbitral tribunal in Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
stated that “[p]ursuant to Article 35 of the ILC Articles, restitution is the primary remedy for
reparation of wrongful acts under international law”.[1531] 195 However, the tribunal held that
“juridical restitution should not be granted”, stating that “Article 35(b) of the ILC Articles
exempts responsible States from their primary obligation to make restitution when restitution
is disproportionately burdensome compared to the benefit which would be gained”.[1532] 196
[A/74/83, p. 34]
Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v.
The Kingdom of Spain
The arbitral tribunal in Antin Infrastructure Services Luxembourg S.à.r.l. and Antin
Energia Termosolar B.V. v. The Kingdom of Spain considered the order of restitution sought
by the claimants based on article 35 of the State responsibility articles “disproportional to its
interference with the sovereignty of the State compared to monetary compensation”.[1533] 197
[A/74/83, p. 35]
Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela
The arbitral tribunal in Saint-Gobain Performance Plastics Europe v. Bolivarian
Republic of Venezuela, referred to articles 35 and 36 of the State responsibility articles in
support of its view that “the fair market value also reflects the compensation standard
under customary international law”.[1534] 206
[A/74/83, p. 36]]
[European Court of Human Rights
Moreira Ferreira v. Portugal (No. 2)
In Moreira Ferreira v. Portugal (No. 2), the European Court of Human Rights noted,
regarding the concept of restitution in integrum, that “DARSIWA [draft articles on State
[1530] 194 ECHR, Second Section, Application No. 1085/10, Judgment, 15 March 2018, paras. 26 and 31.
[1531] 195 ICSID, Case No. ARB/14/1, Award, 16 May 2018, para. 558.
[1532] 196 Ibid., para. 562.
[1533] 197 ICSID, Case No. ARB/13/31, Award, 15 June 2018, para. 636.
[1534] [206 ICSID, Case No. ARB/12/13, Decision on Liability and the Principles of Quantum,
30 December 2016, paras. 627 and 711.]
Article 35 381
responsibility for internationally wrongful acts] doctrine on reparation and especially of
its Articles 34–37 must be taken into consideration in the interpretation of the [European]
Convention [of Human Rights]”.[1535] 213
[A/74/83, p. 37]]
European Court of Human Rights
Ilgar Mammadov v. Azerbaijan
In Ilgar Mammadov v. Azerbaijan, the Grand Chamber of European Court of Human
Rights cited article 35, which encompassed “the principles of international law whereby a
State responsible for a wrongful act is under an obligation to make restitution, … provided
that restitution is not ‘materially impossible’ and ‘does not involve a burden out of all proportion
to the benefit deriving from restitution instead of compensation’”.[1536] 172 The Court
also cited articles 30 to 32 and 34 to 37.[1537] 173
[A/77/74, p. 30]
International arbitral tribunal (under the ICSID Convention)
Glencore International A.G. and C.I. Prodeco S.A. v. Republic of Colombia
The arbitral tribunal in Glencore International A.G. and C.I. Prodeco S.A. v. Republic
of Colombia cited article 35, explaining that pursuant to that article, “restitution—as
opposed to compensation—is the first of the forms of reparation available to a party injured
by an internationally wrongful act”.[1538] 174 The tribunal noted that “the two factors which
exclude the possibility of restitution” pursuant to the articles were whether restitution was
materially impossible and whether it imposed a disproportionate burden on the party in
breach.[1539] 175 Referring to article 36, the tribunal noted that, “[i]n certain cases, to ensure
full reparation restitution must be completed by compensation”.[1540] 176
[A/77/74, p. 30]
Iran-United States Claims Tribunal
Award No. 604-A15 (II:A)/A26 (IV)/B43-FT
In a partial award rendered in 2020, the Iran-United States Claims Tribunal noted that
[1535] [213 ECHR, Grand Chamber, Application No. 19867/12, Judgment, 11 July 2017, para. 3 and note 6.]
[1536] 172 ECHR, Grand Chamber, Application No. 15172/13, Judgment, 29 May 2019, para. 151.
[1537] 173 Ibid., paras. 84–88.
[1538] 174 See footnote [1375] 125 above, para. 1572.
[1539] 175 Ibid., para. 1576.
[1540] 176 Ibid., para. 1577.
382 Article 35
[t]he forms of reparation recognized under customary international law as ways of satisfying
a responsible State’s obligation to make full reparation include … restitution in kind and
compensation”.[1541] 166 The Tribunal recalled in particular the texts of articles 34 and 35. [1542] 167
… the Iran-United States Claims Tribunal cited article 35, recalling “that restitution is the primary
form of reparation for injury caused by an internationally wrongful act”.[1543] 177 The Tribunal
therefore concluded that, in that case, “ordering the United States to arrange for the transfer of the
Stradivarius constitutes the proper remedy, so as to put Iran in the situation [in which] it would have
been had the breach by the United States not occurred.[1544] 178
[A/77/74, pp. 29–30]
International arbitral tribunal (under the ICSID Convention)
(DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar
In (DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar, the
arbitral tribunal cited articles 35, 36 and 38, noting that “in investment law, full reparation
may take the form of restitution or compensation”, plus interest.[1545] 179
[A/77/74, p. 31]
[1541] [166 See footnote [380] 31 above, paras. 1788–1789.]
[1542] [167 Ibid., paras. 1789 and 1847.]
[1543] 177 Ibid., para. 1789.
[1544] 178 Ibid., para. 1849.
[1545] 179 See footnote [1029] 108 above, para. 396.
383
Article 36. Compensation
1. The State responsible for an internationally wrongful act is under an obligation
to compensate for the damage caused thereby, insofar as such damage is not made
good by restitution.
2. The compensation shall cover any financially assessable damage including loss
of profits insofar as it is established.
Commentary
(1) Article 36 deals with compensation for damage caused by an internationally wrongful
act, to the extent that such damage is not made good by restitution. The notion of “damage”
is defined inclusively in article 31, paragraph 2, as any damage whether material or
moral.[1546] 510 Article 36, paragraph 2, develops this definition by specifying that compensation
shall cover any financially assessable damage including loss of profits so far as this
is established in the given case. The qualification “financially assessable” is intended to
exclude compensation for what is sometimes referred to as “moral damage” to a State, i.e.
the affront or injury caused by a violation of rights not associated with actual damage to
property or persons: this is the subject matter of satisfaction, dealt with in article 37.
(2) Of the various forms of reparation, compensation is perhaps the most commonly
sought in international practice. In the Gabčíkovo-Nagymaros Project case, ICJ declared:
“It is a well-established rule of international law that an injured State is entitled to obtain
compensation from the State which has committed an internationally wrongful act for
the damage caused by it.”[1547] 511 It is equally well established that an international court
or tribunal which has jurisdiction with respect to a claim of State responsibility has, as an
aspect of that jurisdiction, the power to award compensation for damage suffered.[1548] 512
(3) The relationship with restitution is clarified by the final phrase of article 36 (“insofar as
such damage is not made good by restitution”). Restitution, despite its primacy as a matter
of legal principle, is frequently unavailable or inadequate. It may be partially or entirely ruled
out either on the basis of the exceptions expressed in article 35, or because the injured State
prefers compensation or for other reasons. Even where restitution is made, it may be insufficient
to ensure full reparation. The role of compensation is to fill in any gaps so as to ensure
full reparation for damage suffered.[1549] 513 As the Umpire said in the “Lusitania” case:
The fundamental concept of “damages” is … reparation for a loss suffered; a judicially ascertained
compensation for wrong. The remedy should be commensurate with the loss, so that the injured
party may be made whole.[1550] 514
[1546] 510 See paragraphs (5) to (6) and (8) of the commentary to article 31.
[1547] 511 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 81, para. 152. See also the statement
by the Permanent Court of International Justice in Case concerning the Factory at Chorzów, Merits
(footnote [28] 34 above), declaring that “[i]t is a principle of international law that the reparation of a
wrong may consist in an indemnity” (p. 27).
[1548] 512 Case concerning the Factory at Chorzów, Jurisdiction (footnote [28] 34 above); Fisheries
Jurisdiction (footnote [1206] 432 above), pp. 203–205, paras. 71–76; Military and Paramilitary Activities
in and against Nicaragua (footnote [30] 36 above), p. 142.
[1549] 513 Case concerning the Factory at Chorzów, Merits (footnote [28] 34 above), pp. 47–48.
[1550] 514 UNRIAA, vol. VII (Sales No. 1956.V.5), p. 32, at p. 39 (1923).
384 Article 36
Likewise, the role of compensation was articulated by PCIJ in the following terms:
Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which
a restitution in kind would bear; the award, if need be, of damages for loss sustained which would
not be covered by restitution in kind or payment in place of it—such are the principles which should
serve to determine the amount of compensation due for an act contrary to international law.[1551] 515
Entitlement to compensation for such losses is supported by extensive case law, State practice
and the writings of jurists.
(4) As compared with satisfaction, the function of compensation is to address the actual
losses incurred as a result of the internationally wrongful act. In other words, the function
of article 36 is purely compensatory, as its title indicates. Compensation corresponds to the
financially assessable damage suffered by the injured State or its nationals. It is not concerned
to punish the responsible State, nor does compensation have an expressive or exemplary
character.[1552] 516 Thus, compensation generally consists of a monetary payment, though it
may sometimes take the form, as agreed, of other forms of value. It is true that monetary
payments may be called for by way of satisfaction under article 37, but they perform a function
distinct from that of compensation. Monetary compensation is intended to offset, as far
as may be, the damage suffered by the injured State as a result of the breach. Satisfaction is
concerned with non-material injury, specifically non-material injury to the State, on which
a monetary value can be put only in a highly approximate and notional way.[1553] 517
(5) Consistently with other provisions of Part Two, article 36 is expressed as an obligation
of the responsible State to provide reparation for the consequences flowing from the commission
of an internationally wrongful act.[1554] 518 The scope of this obligation is delimited
by the phrase “any financially assessable damage”, that is, any damage which is capable
of being evaluated in financial terms. Financially assessable damage encompasses both
damage suffered by the State itself (to its property or personnel or in respect of expenditures
reasonably incurred to remedy or mitigate damage flowing from an internationally
wrongful act) as well as damage suffered by nationals, whether persons or companies, on
whose behalf the State is claiming within the framework of diplomatic protection.
[1551] 515 Case concerning the Factory at Chorzów, Merits (footnote [28] 34 above), p. 47, cited and
applied, inter alia, by ITLOS in the case of the M/V “Saiga” (No. 2) (Saint Vincent and the Grenadines v.
Guinea) (footnote [1096] 160 above). See also Papamichalopoulos and Others v. Greece (article 50), Eur.
Court H.R., Series A, No. 330–B, para. 36 (1995); Velásquez Rodríguez (footnote [84] 63 above), pp. 26–27
and 30–31; and Tippetts, Abbett, McCarthy, Stratton v. TAMS-AFFA Consulting Engineers of Iran, Iran-
U.S. C.T.R., vol. 6, p. 219, at p. 225 (1984).
[1552] 516 In the Velásquez Rodriguez, Compensatory Damages case, the Inter-American Court of
Human Rights held that international law did not recognize the concept of punitive or exemplary damages
(Series C, No. 7 (1989)). See also Letelier and Moffitt, ILR, vol. 88, p. 727 (1992), concerning the
assassination in Washington, D. C., by Chilean agents of a former Chilean minister; the compromis
excluded any award of punitive damages, despite their availability under United States law. On punitive
damages, see also N. Jørgensen, “A reappraisal of punitive damages in international law”, BYBIL, 1997,
vol. 68, pp. 247–266; and S. Wittich, “Awe of the gods and fear of the priests: punitive damages in the law
of State responsibility”, Austrian Review of International and European Law, vol. 3, No. 1 (1998), p. 101.
[1553] 517 See paragraph (3) of the commentary to article 37.
[1554] 518 For the requirement of a sufficient causal link between the internationally wrongful act and
the damage, see paragraphs (11) to (13) of the commentary to article 31.
Article 36 385
(6) In addition to ICJ, international tribunals dealing with issues of compensation include
the International Tribunal for the Law of the Sea,[1555] 519 the Iran-United States Claims
Tribunal,[1556] 520 human rights courts and other bodies,[1557] 521 and ICSID tribunals under
the Convention on the Settlement of Investment Disputes between States and Nationals of
other States.[1558] 522 Other compensation claims have been settled by agreement, normally
on a without prejudice basis, with the payment of substantial compensation a term of the
agreement.[1559] 523 The rules and principles developed by these bodies in assessing compensation
can be seen as manifestations of the general principle stated in article 36.
(7) As to the appropriate heads of compensable damage and the principles of assessment
to be applied in quantification, these will vary, depending upon the content of particular
primary obligations, an evaluation of the respective behaviour of the parties and, more
generally, a concern to reach an equitable and acceptable outcome.[1560] 524 The following
examples illustrate the types of damage that may be compensable and the methods of
quantification that may be employed.
(8) Damage to the State as such might arise out of the shooting down of its aircraft or the
sinking of its ships, attacks on its diplomatic premises and personnel, damage caused to
other public property, the costs incurred in responding to pollution damage, or incidental
damage arising, for example, out of the need to pay pensions and medical expenses for
officials injured as the result of a wrongful act. Such a list cannot be comprehensive and
the categories of compensable injuries suffered by States are not closed.
[1555] 519 For example, the M/V “Saiga” case (footnote [1096] 160 above), paras. 170–177.
[1556] 520 The Iran-United States Claims Tribunal has developed a substantial jurisprudence on questions
of assessment of damage and the valuation of expropriated property. For reviews of the tribunal’s
jurisprudence on these subjects, see, inter alia, Aldrich, op. cit. (footnote [1017] 357 above), chaps. 5–6
and 12; C. N. Brower and J. D. Brueschke, The Iran-United States Claims Tribunal (The Hague, Martinus
Nijhoff, 1998), chaps. 14–18; M. Pellonpää, “Compensable claims before the Tribunal: expropriation
claims”, The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility, R.
B. Lillich and D. B. MaGraw, eds. (Irvington-on-Hudson, Transnational, 1998), pp. 185–266; and D. P.
Stewart, “Compensation and valuation issues”, ibid., pp. 325–385.
[1557] 521 For a review of the practice of such bodies in awarding compensation, see D. Shelton, Remedies
in International Human Rights Law (Oxford University Press, 1999), pp. 214–279.
[1558] 522 ICSID, tribunals have jurisdiction to award damages or other remedies in cases concerning
investments arising between States parties and nationals. Some of these claims involve direct recourse
to international law as a basis of claim. See, e.g., Asian Agricultural Products Limited v. Republic of Sri
Lanka, ICSID Reports (Cambridge University Press, 1997), vol. 4, p. 245 (1990).
[1559] 523 See, e.g., Certain Phosphate Lands in Nauru, Preliminary Objections (footnote [777] 230
above), and for the Court’s order of discontinuance following the settlement, ibid., Order (footnote
[779] 232 above); Passage through the Great Belt (Finland v. Denmark), Order of 10 September 1992,
I.C.J. Reports 1992, p. 348 (order of discontinuance following settlement); and Aerial Incident of 3 July
1988 (Islamic Republic of Iran v. United States of America), Order of 22 February 1996, I.C.J. Reports 1996,
p. 9 (order of discontinuance following settlement).
[1560] 524 See Aldrich, op. cit. (footnote [1017] 357 above), p. 242. See also Graefrath, “Responsibility
and damages caused: relationship between responsibility and damages” (footnote [1241] 454 above),
p. 101; L. Reitzer, La réparation comme conséquence de l’acte illicite en droit international (Paris, Sirey,
1938); Gray, op. cit. (footnote [1206] 432 above), pp. 33–34; J. Personnaz, La réparation du préjudice
en droit international public (Paris, 1939); and M. Iovane, La riparazione nella teoria e nella prassi
dell’illecito internazionale (Milan, Giuffrè, 1990).
386 Article 36
(9) In the Corfu Channel case, the United Kingdom sought compensation in respect of
three heads of damage: replacement of the destroyer Saumarez, which became a total loss,
the damage sustained by the destroyer “Volage”, and the damage resulting from the deaths
and injuries of naval personnel. ICJ entrusted the assessment to expert inquiry. In respect
of the destroyer Saumarez, the Court found that “the true measure of compensation” was
“the replacement cost of the [destroyer] at the time of its loss” and held that the amount of
compensation claimed by the British Government (£ 700,087) was justified. For the damage
to the destroyer “Volage”, the experts had reached a slightly lower figure than the £ 93,812
claimed by the United Kingdom, “explained by the necessarily approximate nature of the
valuation, especially as regards stores and equipment”. In addition to the amounts awarded
for the damage to the two destroyers, the Court upheld the United Kingdom’s claim for
£ 50,048 representing “the cost of pensions and other grants made by it to victims or their
dependants, and for costs of administration, medical treatment, etc.”.[1561] 525
(10) In the M/V “Saiga” (No. 2) case, Saint Vincent and the Grenadines sought compensation
from Guinea following the wrongful arrest and detention of a vessel registered in
Saint Vincent and the Grenadines, the “Saiga”, and its crew. ITLOS awarded compensation
of US$ 2,123,357 with interest. The heads of damage compensated included, inter alia,
damage to the vessel, including costs of repair, losses suffered with respect to charter hire
of the vessel, costs related to the detention of the vessel, and damages for the detention of
the captain, members of the crew and others on board the vessel. Saint Vincent and the
Grenadines had claimed compensation for the violation of its rights in respect of ships
flying its flag occasioned by the arrest and detention of the “Saiga”; however, the tribunal
considered that its declaration that Guinea acted wrongfully in arresting the vessel in the
circumstances, and in using excessive force, constituted adequate reparation.[1562] 526 Claims
regarding the loss of registration revenue due to the illegal arrest of the vessel and for the
expenses resulting from the time lost by officials in dealing with the arrest and detention
of the ship and its crew were also unsuccessful. In respect of the former, the tribunal held
that Saint Vincent and the Grenadines failed to produce supporting evidence. In respect of
the latter, the tribunal considered that such expenses were not recoverable since they were
incurred in the exercise of the normal functions of a flag State.[1563] 527
(11) In a number of cases payments have been directly negotiated between injured and injuring
States following wrongful attacks on ships causing damage or sinking of the vessel, and in
some cases, loss of life and injury among the crew.[1564] 528 Similar payments have been negotiated
where damage is caused to aircraft of a State, such as the “full and final settlement”
agreed between the Islamic Republic of Iran and the United States following a dispute over
the destruction of an Iranian aircraft and the killing of its 290 passengers and crew.[1565] 529
[1561] 525 Corfu Channel, Assessment of Compensation (footnote [1260] 473 above), p. 249.
[1562] 526 The M/V “Saiga” case (footnote [1096] 159 above), para. 176.
[1563] 527 Ibid., para. 177.
[1564] 528 See the payment by Cuba to the Bahamas for the sinking by Cuban aircraft on the high
seas of a Bahamian vessel, with loss of life among the crew (RGDIP, vol. 85 (1981), p. 540), the payment
of compensation by Israel for an attack in 1967 on the USS Liberty, with loss of life and injury among
the crew (ibid., p. 562), and the payment by Iraq of US$ 27 million for the 37 deaths which occurred in
May 1987 when Iraqi aircraft severely damaged the USS Stark (AJIL, vol. 83, No. 3 (July 1989), p. 561).
[1565] 529 Aerial Incident of 3 July 1988 (footnote [1559] 523 above) (order of discontinuance following
settlement). For the settlement agreement itself, see the General Agreement on the Settlement of CerArticle
36 387
(12) Agreements for the payment of compensation are also frequently negotiated by States
following attacks on diplomatic premises, whether in relation to damage to the embassy
itself[1566] 530 or injury to its personnel.[1567] 531 Damage caused to other public property, such
as roads and infrastructure, has also been the subject of compensation claims.[1568] 532 In
many cases, these payments have been made on an ex gratia or a without prejudice basis,
without any admission of responsibility.[1569] 533
(13) Another situation in which States may seek compensation for damage suffered by the
State as such is where costs are incurred in responding to pollution damage. Following the
crash of the Soviet Cosmos 954 satellite on Canadian territory in January 1978, Canada’s
claim for compensation for expenses incurred in locating, recovering, removing and testing
radioactive debris and cleaning up affected areas was based “jointly and separately on (a) the
relevant international agreements … and (b) general principles of international law”.[1570] 534
Canada asserted that it was applying “the relevant criteria established by general principles
of international law according to which fair compensation is to be paid, by including in
its claim only those costs that are reasonable, proximately caused by the intrusion of the
satellite and deposit of debris and capable of being calculated with a reasonable degree of
certainty”.[1571] 535 The claim was eventually settled in April 1981 when the parties agreed on
an ex gratia payment of Can$ 3 million (about 50 per cent of the amount claimed).[1572] 536
(14) Compensation claims for pollution costs have been dealt with by UNCC in the context
of assessing Iraq’s liability under international law “for any direct loss, damage—including
environmental damage and the depletion of natural resources … as a result of its unlawful
invasion and occupation of Kuwait”.[1573] 537 The UNCC Governing Council decision 7
tain International Court of Justice and Tribunal Cases (1996), attached to the Joint Request for Arbitral
Award on Agreed Terms, Iran-U.S. C.T.R., vol. 32, pp. 213–216 (1996).
[1566] 530 See, e.g., the Exchange of Notes between the Government of the United Kingdom of Great
Britain and Northern Ireland and the Government of the Republic of Indonesia concerning the losses
incurred by the Government of the United Kingdom and by British nationals as a result of the disturbances
in Indonesia in September 1963 (1 December 1966) for the payment by Indonesia of compensation
for, inter alia, damage to the British Embassy during mob violence (Treaty Series No. 34 (1967))
(London, H. M. Stationery Office) and the payment by Pakistan to the United States of compensation for
the sacking of the United States Embassy in Islamabad in 1979 (RGDIP, vol. 85 (1981), p. 880).
[1567] 531 See, e.g., Claim of Consul Henry R. Myers (United States v. Salvador) (1890), Papers relating
to the Foreign Relations of the United States, pp. 64–65; (1892), pp. 24–44 and 49–51; (1893), pp. 174–179,
181–182 and 184; and Whiteman, Damages in International Law (footnote [1007] 347 above), pp. 80–81.
[1568] 532 For examples, see Whiteman, Damages in International Law (footnote [1007] 347 above), p. 81.
[1569] 533 See, e.g., the United States-China agreement providing for an ex gratia payment of US$ 4.5
million, to be given to the families of those killed and to those injured in the bombing of the Chinese
Embassy in Belgrade on 7 May 1999, AJIL, vol. 94, No. 1 (January 2000), p. 127.
[1570] 534 The claim of Canada against the Union of Soviet Socialist Republics for damage caused by
Cosmos 954, 23 January 1979 (footnote [1246] 459 above), pp. 899 and 905.
[1571] 535 Ibid., p. 907.
[1572] 536 Protocol between Canada and the Union of Soviet Socialist Republics in respect of the
claim for damages caused by the Satellite “Cosmos 954” (Moscow, 2 April 1981), United Nations, Treaty
Series, vol. 1470, No. 24934, p. 269. See also ILM, vol. 20, No. 3 (May 1981), p. 689.
[1573] 537 Security Council resolution 687 (1991), para. 16 (footnote [1248] 461 above).
388 Article 36
specifies various heads of damage encompassed by “environmental damage and the depletion
of natural resources”.[1574] 538
(15) In cases where compensation has been awarded or agreed following an internationally
wrongful act that causes or threatens environmental damage, payments have been
directed to reimbursing the injured State for expenses reasonably incurred in preventing or
remedying pollution, or to providing compensation for a reduction in the value of polluted
property.[1575] 539 However, environmental damage will often extend beyond that which can
be readily quantified in terms of clean-up costs or property devaluation. Damage to such
environmental values (biodiversity, amenity, etc.—sometimes referred to as “non-use values”)
is, as a matter of principle, no less real and compensable than damage to property,
though it may be difficult to quantify.
(16) Within the field of diplomatic protection, a good deal of guidance is available as to
appropriate compensation standards and methods of valuation, especially as concerns
personal injury and takings of, or damage to, tangible property. It is well established that
a State may seek compensation in respect of personal injuries suffered by its officials or
nationals, over and above any direct injury it may itself have suffered in relation to the
same event. Compensable personal injury encompasses not only associated material losses,
such as loss of earnings and earning capacity, medical expenses and the like, but also nonmaterial
damage suffered by the individual (sometimes, though not universally, referred
to as “moral damage” in national legal systems). Non-material damage is generally understood
to encompass loss of loved ones, pain and suffering as well as the affront to sensibilities
associated with an intrusion on the person, home or private life. No less than material
injury sustained by the injured State, non-material damage is financially assessable and
may be the subject of a claim of compensation, as stressed in the “Lusitania” case.[1576] 540
The umpire considered that international law provides compensation for mental suffering,
injury to feelings, humiliation, shame, degradation, loss of social position or injury to
credit and reputation, such injuries being “very real, and the mere fact that they are difficult
to measure or estimate by money standards makes them none the less real and affords
no reason why the injured person should not be compensated … ”[1577] 541
(17) International courts and tribunals have undertaken the assessment of compensation for
personal injury on numerous occasions. For example, in the M/V “Saiga” case,[1578] 542 the tribunal
held that Saint Vincent and the Grenadines’ entitlement to compensation included damages
for injury to the crew, their unlawful arrest, detention and other forms of ill-treatment.
[1574] 538 Decision 7 of 16 March 1992, Criteria for additional categories of claims,
(S/AC.26/1991/7/Rev.1), para 35.
[1575] 539 See the decision of the arbitral tribunal in the Trail Smelter case (footnote [817] 253 above),
p. 1911, which provided compensation to the United States for damage to land and property caused by
sulphur dioxide emissions from a smelter across the border in Canada. Compensation was assessed on
the basis of the reduction in value of the affected land.
[1576] 540 See footnote [1550] 514 above. International tribunals have frequently granted pecuniary
compensation for moral injury to private parties. For example, the Chevreau case (see footnote [505] 133
above) (English translation in AJIL, vol. 27, No. 1 (January 1933), p. 153); the Gage case, UNRIAA, vol. IX
(Sales No. 59.V.5), p. 226 (1903); the Di Caro case, ibid., vol. X (Sales No. 60.V.4), p. 597 (1903); and the
Heirs of Jean Maninat case, ibid., p. 55 (1903).
[1577] 541 “Lusitania” (see footnote [1550] 514 above), p. 40.
[1578] 542 See footnote [1096] 159 above.
Article 36 389
(18) Historically, compensation for personal injury suffered by nationals or officials of a
State arose mainly in the context of mixed claims commissions dealing with State responsibility
for injury to aliens. Claims commissions awarded compensation for personal injury
both in cases of wrongful death and deprivation of liberty. Where claims were made in
respect of wrongful death, damages were generally based on an evaluation of the losses of
the surviving heirs or successors, calculated in accordance with the well-known formula
of Umpire Parker in the “Lusitania” case:
Estimate the amounts (a) which the decedent, had he not been killed, would probably have contributed
to the claimant, add thereto (b) the pecuniary value to such claimant of the deceased’s personal
services in claimant’s care, education, or supervision, and also add (c) reasonable compensation for
such mental suffering or shock, if any, caused by the violent severing of family ties, as claimant may
actually have sustained by reason of such death. The sum of these estimates reduced to its present
cash value, will generally represent the loss sustained by claimant.[1579] 543
In cases of deprivation of liberty, arbitrators sometimes awarded a set amount for each
day spent in detention.[1580] 544 Awards were often increased when abusive conditions of
confinement accompanied the wrongful arrest and imprisonment, resulting in particularly
serious physical or psychological injury.[1581] 545
(19) Compensation for personal injury has also been dealt with by human rights bodies, in
particular the European Court of Human Rights and the Inter-American Court of Human
Rights. Awards of compensation encompass material losses (loss of earnings, pensions,
medical expenses, etc.) and non-material damage (pain and suffering, mental anguish,
humiliation, loss of enjoyment of life and loss of companionship or consortium), the latter
usually quantified on the basis of an equitable assessment. Hitherto, amounts of compensation
or damages awarded or recommended by these bodies have been modest.[1582] 546
Nonetheless, the decisions of human rights bodies on compensation draw on principles of
reparation under general international law.[1583] 547
(20) In addition to a large number of lump-sum compensation agreements covering multiple
claims,[1584] 548 property claims of nationals arising out of an internationally wrongful
act have been adjudicated by a wide range of ad hoc and standing tribunals and commissions,
with reported cases spanning two centuries. Given the diversity of adjudicating
[1579] 543 “Lusitania” (see footnote [1550] 514 above), p. 35.
[1580] 544 For example, the“Topaze” case, UNRIAA, vol. IX (Sales No. 59.V.5), p. 387, at p. 389 (1903);
and the Faulkner case, ibid., vol. IV (Sales No. 1951.V.1), p. 67, at p. 71 (1926).
[1581] 545 For example, the William McNeil case, ibid., vol. V (Sales No. 1952.V.3), p. 164, at p. 168 (1931).
[1582] 546 See the review by Shelton, op. cit. (footnote [1557] 521 above), chaps. 8–9; A. Randelzhofer
and C. Tomuschat, eds., State Responsibility and the Individual: Reparation in Instances of Grave Violations
of Human Rights (The Hague, Martinus Nijhoff, 1999); and R. Pisillo Mazzeschi, “La riparazione
per violazione dei diritti umani nel diritto internazionale e nella Convenzione europea”, La Comunità
internazionale, vol. 53, No. 2 (1998), p. 215.
[1583] 547 See, e.g., the decision of the Inter-American Court of Human Rights in the Velásquez Rodríguez
case (footnote [84] 63 above), pp. 26–27 and 30–31. Cf. Papamichalopoulos (footnote [1551] 515 above).
[1584] 548 See, e.g., R. B. Lillich and B. H. Weston, International Claims: Their Settlement by Lump
Sum Agreements (Charlottesville, University Press of Virginia, 1975); and B. H. Weston, R. B. Lillich and
D. J. Bederman, International Claims: Their Settlement by Lump Sum Agreements, 1975–1995 (Ardsley,
N.Y., Transnational, 1999).
390 Article 36
bodies, the awards exhibit considerable variability.[1585] 549 Nevertheless, they provide useful
principles to guide the determination of compensation under this head of damage.
(21) The reference point for valuation purposes is the loss suffered by the claimant whose
property rights have been infringed. This loss is usually assessed by reference to specific
heads of damage relating to (i) compensation for capital value; (ii) compensation for loss
of profits; and (iii) incidental expenses.
(22) Compensation reflecting the capital value of property taken or destroyed as the result
of an internationally wrongful act is generally assessed on the basis of the “fair market
value” of the property lost.[1586] 550 The method used to assess “fair market value”, however,
depends on the nature of the asset concerned. Where the property in question or comparable
property is freely traded on an open market, value is more readily determined. In such
cases, the choice and application of asset-based valuation methods based on market data
and the physical properties of the assets is relatively unproblematic, apart from evidentiary
difficulties associated with long outstanding claims.[1587] 551 Where the property interests in
[1585] 549 Controversy has persisted in relation to expropriation cases, particularly over standards of
compensation applicable in the light of the distinction between lawful expropriation of property by the
State on the one hand, and unlawful takings on the other, a distinction clearly drawn by the Permanent
Court of International Justice in Case concerning the Factory at Chorzów, Merits (footnote [28] 34 above),
p. 47. In a number of cases, tribunals have employed the distinction to rule in favour of compensation
for lost profits in cases of unlawful takings (see, e.g., the observations of the arbitrator in Libyan American
Oil Company (LIAMCO) (footnote [1495] 508 above), pp. 202–203; and also the Aminoil arbitration
(footnote [1483] 496 above), p. 600, para. 138; and Amoco International Finance Corporation v. The
Government of the Islamic Republic of Iran, Iran–U.S. C.T.R., vol. 15, p. 189, at p. 246, para. 192 (1987)).
Not all cases, however, have drawn a distinction between the applicable compensation principles based
on the lawfulness or unlawfulness of the taking. See, e.g., the decision of the Iran-United States Claims
Tribunal in Phillips Petroleum (footnote [408] 67 above), p. 122, para. 110. See also Starrett Housing,
Corporation v. Government of the Islamic Republic of Iran, Iran‑U.S. C.T.R., vol. 16, p. 112 (1987), where
the tribunal made no distinction in terms of the lawfulness of the taking and its award included compensation
for lost profits.
[1586] 550 See American International Group, Inc. v. The Islamic Republic of Iran, which stated that,
under general international law, “the valuation should be made on the basis of the fair market value of
the shares”, Iran-U.S. C.T.R., vol. 4, p. 96, at p. 106 (1983). In Starrett Housing (footnote [1585] 549 above),
the tribunal accepted its expert’s concept of fair market value “as the price that a willing buyer would
pay to a willing seller in circumstances in which each had good information, each desired to maximize
his financial gain, and neither was under duress or threat” (p. 201). See also the Guidelines on the Treatment
of Foreign Direct Investment, which state in paragraph 3 of part IV that compensation “will be
deemed ‘adequate’ if it is based on the fair market value of the taken asset as such value is determined
immediately before the time at which the taking occurred or the decision to take the asset became publicly
known”, World Bank, Legal Framework for the Treatment of Foreign Investment (Washington, D. C.,
1992), vol. II, p. 41. Likewise, according to article 13, paragraph 1, of the Energy Charter Treaty, compensation
for expropriation “shall amount to the fair market value of the Investment expropriated at the
time immediately before the Expropriation”.
[1587] 551 Particularly in the case of lump-sum settlements, agreements have been concluded decades
after the claims arose. See, e.g., the Agreement between the Government of the United Kingdom of Great
Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics concerning
the Settlement of Mutual Financial and Property Claims arising before 1939 of 15 July 1986 (Treaty
Series, No. 65 (1986)) (London, H. M. Stationery Office) concerning claims dating back to 1917 and the
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland
and the Government of the People’s Republic of China concerning the Settlement of Mutual Historical
Article 36 391
question are unique or unusual, for example, art works or other cultural property,[1588] 552 or
are not the subject of frequent or recent market transactions, the determination of value is
more difficult. This may be true, for example, in respect of certain business entities in the
nature of a going concern, especially if shares are not regularly traded.[1589] 553
(23) Decisions of various ad hoc tribunals since 1945 have been dominated by claims in
respect of nationalized business entities. The preferred approach in these cases has been
to examine the assets of the business, making allowance for goodwill and profitability,
as appropriate. This method has the advantage of grounding compensation as much as
possible in some objective assessment of value linked to the tangible asset backing of the
business. The value of goodwill and other indicators of profitability may be uncertain,
unless derived from information provided by a recent sale or acceptable arms-length offer.
Yet, for profitable business entities where the whole is greater than the sum of the parts,
compensation would be incomplete without paying due regard to such factors.[1590] 554
(24) An alternative valuation method for capital loss is the determination of net book value,
i.e. the difference between the total assets of the business and total liabilities as shown on
its books. Its advantages are that the figures can be determined by reference to market
costs, they are normally drawn from a contemporaneous record, and they are based on data
generated for some other purpose than supporting the claim. Accordingly, net book value
(or some variant of this method) has been employed to assess the value of businesses. The
limitations of the method lie in the reliance on historical figures, the use of accounting principles
which tend to undervalue assets, especially in periods of inflation, and the fact that
the purpose for which the figures were produced does not take account of the compensation
context and any rules specific to it. The balance sheet may contain an entry for goodwill, but
the reliability of such figures depends upon their proximity to the moment of an actual sale.
(25) In cases where a business is not a going concern,[1591] 555 so-called “break-up”, “liquidation”
or “dissolution” value is generally employed. In such cases no provision is made
for value over and above the market value of the individual assets. Techniques have been
Property Claims of 5 June 1987 (Treaty Series, No. 37 (1987), ibid.) in respect of claims arising in 1949.
In such cases, the choice of valuation method was sometimes determined by availability of evidence.
[1588] 552 See Report and recommendations made by the panel of Commissioners concerning part
two of the first instalment of individual claims for damages above US$ 100 000 (category “D” claims),
12 March 1998 (S/AC.26/1998/3), paras. 48–49, where UNCC considered a compensation claim in relation
to the taking of the claimant’s Islamic art collection by Iraqi military personnel.
[1589] 553 Where share prices provide good evidence of value, they may be utilized, as in INA Corporation
v. The Government of the Islamic Republic of Iran, Iran–U.S. C.T.R., vol. 8, p. 373 (1985).
[1590] 554 Early claims recognized that even where a taking of property was lawful, compensation for
a going concern called for something more than the value of the property elements of the business. The
American-Mexican Claims Commission, in rejecting a claim for lost profits in the case of a lawful taking,
stated that payment for property elements would be “augmented by the existence of those elements
which constitute a going concern”: Wells Fargo and Company (Decision No. 22–B) (1926), American-
Mexican Claims Commission (Washington, D. C., United States Government Printing Office, 1948),
p. 153 (1926). See also decision No. 9 of the UNCC Governing Council in “Propositions and conclusions
on compensation for business losses: types of damages and their valuation” (S/AC.26/1992/9), para. 16.
[1591] 555 For an example of a business found not to be a going concern, see Phelps Dodge Corp. v.
The Islamic Republic of Iran, Iran–U.S. C.T.R., vol. 10, p. 121 (1986), where the enterprise had not been
established long enough to demonstrate its viability. In SEDCO, Inc. v. National Iranian Oil Co., the
claimant sought dissolution value only, ibid., p. 180 (1986).
392 Article 36
developed to construct, in the absence of actual transactions, hypothetical values representing
what a willing buyer and willing seller might agree.[1592] 556
(26) Since 1945, valuation techniques have been developed to factor in different elements
of risk and probability.[1593] 557 The discounted cash flow (DCF) method has gained some
favour, especially in the context of calculations involving income over a limited duration,
as in the case of wasting assets. Although developed as a tool for assessing commercial
value, it can also be useful in the context of calculating value for compensation purposes.[
1594] 558 But difficulties can arise in the application of the DCF method to establish capital
value in the compensation context. The method analyses a wide range of inherently speculative
elements, some of which have a significant impact upon the outcome (e.g. discount
rates, currency fluctuations, inflation figures, commodity prices, interest rates and other
commercial risks). This has led tribunals to adopt a cautious approach to the use of the
method. Hence, although income-based methods have been accepted in principle, there
has been a decided preference for asset-based methods.[1595] 559 A particular concern is the
risk of double-counting which arises from the relationship between the capital value of an
enterprise and its contractually based profits.[1596] 560
(27) Paragraph 2 of article 36 recognizes that in certain cases compensation for loss of profits
may be appropriate. International tribunals have included an award for loss of profits
in assessing compensation: for example, the decisions in the Cape Horn Pigeon case[1597] 561
and Sapphire International Petroleums Ltd. v. National Iranian Oil Company.[1598] 562 Loss
of profits played a role in the Factory at Chorzów case itself, PCIJ deciding that the injured
[1592] 556 The hypothetical nature of the result is discussed in Amoco International Finance Corporation
(footnote [1585] 549 above), at pp. 256–257, paras. 220–223.
[1593] 557 See, for example, the detailed methodology developed by UNCC for assessing Kuwaiti
corporate claims (report and recommendations made by the panel of Commissioners concerning the
first instalment of “E4” claims, 19 March 1999 (S/AC.26/1999/4), paras. 32–62) and claims filed on behalf
of non‑Kuwaiti corporations and other business entities, excluding oil sector, construction/engineering
and export guarantee claims (report and recommendations made by the panel of Commissioners
concerning the third instalment of “E2” claims, 9 December 1999 (S/AC.26/1999/22)).
[1594] 558 The use of the discounted cash flow method to assess capital value was analysed in some
detail in Amoco International Finance Corporation (footnote [1585] 549 above); Starrett Housing Corporation
(footnote [1585] 549 above.); Phillips Petroleum Company Iran (footnote [408] 67 above); and
Ebrahimi (Shahin Shaine) v. Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 30, p. 170 (1994).
[1595] 559 See, e.g., Amoco (footnote [1585] 549 above); Starrett Housing Corporation (footnote
[1585] 549 above.); and Phillips Petroleum Company Iran (footnote [408] 67 above). In the context
of claims for lost profits, there is a corresponding preference for claims to be based on past performance
rather than forecasts. For example, the UNCC guidelines on valuation of business losses in decision 9
(footnote [1590] 554 above) states: “The method of a valuation should therefore be one that focuses on
past performance rather than on forecasts and projections into the future” (para. 19).
[1596] 560 See, e.g., Ebrahimi (footnote [1594] 558 above), p. 227, para. 159.
[1597] 561 Navires (footnote [769] 222 above) (Cape Horn Pigeon case), p. 63 (1902) (including compensation
for lost profits resulting from the seizure of an American whaler). Similar conclusions were
reached in the Delagoa Bay Railway case, Martens, op. cit. (footnote [1215] 561 above), vol. XXX, p. 329
(1900); Moore, History and Digest, vol. II, p. 1865 (1900); the William Lee case (footnote [520] 139 above),
pp. 3405–3407; and the Yuille Shortridge and Co. case (Great Britain v. Portugal), Lapradelle–Politis, op.
cit. (ibid.), vol. II, p. 78 (1861). Contrast the decisions in the Canada case (United States of America v.
Brazil), Moore, History and Digest, vol. II, p. 1733 (1870) and the Lacaze case (footnote [520] 139 above).
[1598] 562 ILR, vol. 35, p. 136, at pp. 187 and 189 (1963).
Article 36 393
party should receive the value of property by way of damages not as it stood at the time
of expropriation but at the time of indemnification.[1599] 563 Awards for loss of profits have
also been made in respect of contract-based lost profits in Libyan American Oil Company
(LIAMCO)[1600] 564 and in some ICSID arbitrations.[1601] 565 Nevertheless, lost profits have
not been as commonly awarded in practice as compensation for accrued losses. Tribunals
have been reluctant to provide compensation for claims with inherently speculative
elements.[1602] 566 When compared with tangible assets, profits (and intangible assets which
are income-based) are relatively vulnerable to commercial and political risks, and increasingly
so the further into the future projections are made. In cases where lost future profits
have been awarded, it has been where an anticipated income stream has attained sufficient
attributes to be considered a legally protected interest of sufficient certainty to be compensable.[
1603] 567 This has normally been achieved by virtue of contractual arrangements or, in
some cases, a well-established history of dealings.[1604] 568
(28) Three categories of loss of profits may be distinguished: first, lost profits from incomeproducing
property during a period when there has been no interference with title as distinct
from temporary loss of use; secondly, lost profits from income-producing property
[1599] 563 Case concerning the Factory at Chorzów, Merits (footnote [28] 34 above), pp. 47–48 and 53.
[1600] 564 Libyan American Oil Company (LIAMCO) (footnote [1495] 508 above), p. 140.
[1601] 565 See, e.g., Amco Asia Corporation and Others v. The Republic of Indonesia, First Arbitration
(1984); Annulment (1986); Resubmitted case (1990), ICSID Reports (Cambridge, Grotius, 1993), vol. 1,
p. 377; and AGIP SpA v. the Government of the People’s Republic of the Congo, ibid., p. 306 (1979).
[1602] 566 According to the arbitrator in the Shufeldt case (footnote [146] 87 above), “the lucrum cessans
must be the direct fruit of the contract and not too remote or speculative” (p. 1099). See also Amco
Asia Corporation and Others (footnote [1601] 565 above), where it was stated that “non-speculative profits”
were recoverable (p. 612, para. 178). UNCC has also stressed the requirement for claimants to provide
“clear and convincing evidence of ongoing and expected profitability” (see report and recommendations
made by the panel of Commissioners concerning the first instalment of “E3” claims, 17 December 1998
(S/AC.26/1998/13), para. 147). In assessing claims for lost profits on construction contracts, Panels have
generally required that the claimant’s calculation take into account the risk inherent in the project (ibid.,
para. 157; report and recommendations made by the panel of Commissioners concerning the fourth
instalment of “E3” claims, 30 September 1999 (S/AC.26/1999/14), para. 126).
[1603] 567 In considering claims for future profits, the UNCC panel dealing with the fourth instalment
of “E3” claims expressed the view that in order for such claims to warrant a recommendation, “it
is necessary to demonstrate by sufficient documentary and other appropriate evidence a history of successful
(i.e. profitable) operation, and a state of affairs which warrants the conclusion that the hypothesis
that there would have been future profitable contracts is well founded” (S/AC.26/1999/14), para. 140
(footnote [1602] 566 above).
[1604] 568 According to Whiteman, “in order to be allowable, prospective profits must not be too
speculative, contingent, uncertain, and the like. There must be proof that they were reasonably anticipated;
and that the profits anticipated were probable and not merely possible” (Damages in International
Law (Washington, D. C., United States Government Printing Office, 1943), vol. III, p. 1837).
394 Article 36
between the date of taking of title and adjudication;[1605] 569 and thirdly, lost future profits
in which profits anticipated after the date of adjudication are awarded.[1606] 570
(29) The first category involves claims for loss of profits due to the temporary loss of use
and enjoyment of the income-producing asset.[1607] 571 In these cases there is no interference
with title and hence in the relevant period the loss compensated is the income to which the
claimant was entitled by virtue of undisturbed ownership.
(30) The second category of claims relates to the unlawful taking of income-producing
property. In such cases lost profits have been awarded for the period up to the time of adjudication.
In the Factory at Chorzów case,[1608] 527 this took the form of re-invested income,
representing profits from the time of taking to the time of adjudication. In the Norwegian
Shipowners’ Claims case,[1609] 573 lost profits were similarly not awarded for any period
beyond the date of adjudication. Once the capital value of income-producing property has
been restored through the mechanism of compensation, funds paid by way of compensation
can once again be invested to re-establish an income stream. Although the rationale
for the award of lost profits in these cases is less clearly articulated, it may be attributed
to a recognition of the claimant’s continuing beneficial interest in the property up to the
moment when potential restitution is converted to a compensation payment.[1610] 574
(31) The third category of claims for loss of profits arises in the context of concessions and
other contractually protected interests. Again, in such cases, lost future income has sometimes
been awarded.[1611] 575 In the case of contracts, it is the future income stream which
[1605] 569 This is most commonly associated with the deprivation of property, as opposed to wrongful
termination of a contract or concession. If restitution were awarded, the award of lost profits would be analogous
to cases of temporary dispossession. If restitution is not awarded, as in the Case concerning the Factory
at Chorzów, Merits (footnote [28] 34 above) and Norwegian Shipowners’ Claims (footnote [146] 87 above), lost
profits may be awarded up to the time when compensation is made available as a substitute for restitution.
[1606] 570 Awards of lost future profits have been made in the context of a contractually protected
income stream, as in Amco Asia Corporation and Others v. The Republic of Indonesia, First Arbitration;
Annulment; Resubmitted case (footnote [1601] 565 above), rather than on the basis of the taking of
income-producing property. In the UNCC report and recommendations on the second instalment of
“E2” claims, dealing with reduced profits, the panel found that losses arising from a decline in business
were compensable even though tangible property was not affected and the businesses continued to operate
throughout the relevant period (S/AC.26/1999/6, para. 76).
[1607] 571 Many of the early cases concern vessels seized and detained. In the “Montijo”, an American
vessel seized in Panama, the Umpire allowed a sum of money per day for loss of the use of the vessel
(footnote [234] 117 above). In the “Betsey”, compensation was awarded not only for the value of the cargo
seized and detained, but also for demurrage for the period representing loss of use: Moore, International
Adjudications (New York, Oxford University Press, 1933) vol. V, p. 47, at p. 113.
[1608] 572 Case concerning the Factory at Chorzów, Merits (footnote [28] 34 above).
[1609] 573 Norwegian Shipowners’ Claims (footnote [146] 87 above).
[1610] 574 For the approach of UNCC in dealing with loss of profits claims associated with the
destruction of businesses following the Iraqi invasion of Kuwait, see S/AC.26/1999/4 (footnote [1593] 557
above), paras. 184–187.
[1611] 575 In some cases, lost profits were not awarded beyond the date of adjudication, though for
reasons unrelated to the nature of the income-producing property. See, e.g., Robert H. May (United
States v. Guatemala), 1900 For. Rel. 648; and Whiteman, Damages in International Law, vol. III (footnote
[1604] 568 above), pp. 1704 and 1860, where the concession had expired. In other cases, circumstances
giving rise to force majeure had the effect of suspending contractual obligations: see, e.g., Gould
Article 36 395
is compensated, up to the time when the legal recognition of entitlement ends. In some
contracts this is immediate, e.g. where the contract is determinable at the instance of the
State,[1612] 576 or where some other basis for contractual termination exists. Or it may arise
from some future date dictated by the terms of the contract itself.
(32) In other cases, lost profits have been excluded on the basis that they were not sufficiently
established as a legally protected interest. In the Oscar Chinn case[1613] 577 a monopoly was
not accorded the status of an acquired right. In the Asian Agricultural Products case,[1614] 578
a claim for lost profits by a newly established business was rejected for lack of evidence of
established earnings. Claims for lost profits are also subject to the usual range of limitations
on the recovery of damages, such as causation, remoteness, evidentiary requirements and
accounting principles, which seek to discount speculative elements from projected figures.
(33) If loss of profits are to be awarded, it is inappropriate to award interest under article 38
on the profit-earning capital over the same period of time, simply because the capital sum
cannot be simultaneously earning interest and generating profits. The essential aim is to
avoid double recovery while ensuring full reparation.
(34) It is well established that incidental expenses are compensable if they were reasonably
incurred to repair damage and otherwise mitigate loss arising from the breach.[1615] 579 Such
expenses may be associated, for example, with the displacement of staff or the need to store
or sell undelivered products at a loss.
Marketing, Inc. v. Ministry of Defence of the Islamic Republic of Iran, Iran–U.S. C.T.R., vol. 6, p. 272
(1984); and Sylvania Technical Systems, Inc. v. The Government of the Islamic Republic of Iran, ibid.,
vol. 8, p. 298 (1985). In the Delagoa Bay Railway case (footnote [1597] 561 above), and in Shufeldt (footnote
[146] 87 above), lost profits were awarded in respect of a concession which had been terminated. In
Sapphire International Petroleums Ltd. (footnote [1598] 562 above), p. 136; Libyan American Oil Company
(LIAMCO) (footnote [1495] 508 above), p. 140; and Amco Asia Corporation and Others v. The Republic
of Indonesia, First Arbitration; Annulment; Resubmitted case (footnote [1601] 565 above), awards of lost
profits were also sustained on the basis of contractual relationships.
[1612] 576 As in Sylvania Technical Systems, Inc. (footnote [1611] 575 above).
[1613] 577 See footnote [1061] 385 above.
[1614] 578 See footnote [1558] 522 above.
[1615] 579 Compensation for incidental expenses has been awarded by UNCC (report and recommendations
on the first instalment of “E2” claims (S/AC.26/1998/7) where compensation was awarded
for evacuation and relief costs (paras. 133, 153 and 249), repatriation (para. 228), termination costs
(para. 214), renovation costs (para. 225) and expenses in mitigation (para. 183)), and by the Iran-United
States Claims Tribunal (see General Electric Company v. The Government of the Islamic Republic of Iran,
Iran-U.S. C.T.R., vol. 26, p. 148, at pp. 165–169, paras. 56–60 and 67–69 (1991), awarding compensation
for items resold at a loss and for storage costs).
396 Article 36
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Panel of Commissioners of the United Nations Compensation Commission
S/AC.26/1999/6
In its 1999 report concerning the second instalment of “E2” claims,[1616] 196 the Panel
of Commissioners of the United Nations Compensation Commission found that its interpretation,
based on Governing Council decision 9, according to which losses resulting
from a decline in operations were compensable, was “confirmed by accepted principles of
international law regarding State responsibility” as enshrined, for example, in draft article
44, paragraph 2, adopted by the International Law Commission on first reading:[1617] 197
77. The preceding analysis based on decision 9 [of the Governing Council of the United Nations
Compensation Commission] is confirmed by accepted principles of international law regarding
State responsibility. The Draft articles on State Responsibility by the International Law Commission,
for example, provide in relevant part that ‘compensation covers any economically assessable damage
sustained … , and, where appropriate, loss of profits’.[1618] 198
[A/62/62, para. 111]
S/AC.26/2000/2
In its 2000 report concerning the fourth instalment of “E2” claims,[1619] 199 the UNCC
Panel of Commissioners, after having found that “[t]he standard measure of compensation
for each loss that is deemed to be direct should be sufficient to restore the claimant to the
same financial position that it would have been in if the contract had been performed”,
referred in a footnote (without specifying any paragraph) to the commentary to draft article
44 adopted by the International Law Commission on first reading.[1620] 200
[A/62/62, para. 112]
[1616] 196 “E2” claims before the United Nations Compensation Commission are claims of non-
Kuwaiti corporations that do not fall into any of the other subcategories of “E” claims (i.e., “E1” (oil
sector claims), “E3” (claims of non-Kuwaiti corporations related to construction and engineering) and
“E4” (claims of Kuwaiti corporations, excluding those relating to the oil sector)).
[1617] 197 This provision was amended and incorporated in article 36 as finally adopted in 2001. The
text of draft article 44 adopted on first reading was as follows:
Article 44
Compensation
1. The injured State is entitled to obtain from the State which has committed an internationally
wrongful act compensation for the damage caused by that act, if and to the extent
that the damage is not made good by restitution in kind.
2. For the purposes of the present article, compensation covers any economically
assessable damage sustained by the injured State, and may include interest and, where appropriate,
loss of profits. (Yearbook … 1996, vol. II (Part Two), para. 65.)
[1618] 198 S/AC.26/1999/6, para. 77 (footnote omitted).
[1619] 199 See footnote [1616] 196 above.
[1620] 200 S/AC.26/2000/2, para. 157, footnote 61.
Article 36 397
International arbitral tribunal (under UNCITRAL Rules)
S.D. Myers Inc. v. Canada
In its 2000 partial award, the arbitral tribunal constituted in accordance with chapter
11 of NAFTA under the UNCITRAL Rules to hear the Myers v. Canada case, in order
to determine the methodology for the assessment of the compensation due in that case,
noted that, “[t]here being no relevant provisions of the NAFTA other than those contained
in article 1110”, it needed to turn “for guidance” to international law.[1621] 201 After having
quoted a passage of the judgement of the Permanent Court of International Justice on the
merits in the Factory at Chorzów case on the question of reparation, the arbitral tribunal
further observed that
[t]he draft articles on State responsibility under consideration by the International Law Commission
at the date of this award similarly propose that in international law, a wrong committed by one
State against another gives rise to a right to compensation for the economic harm sustained.[1622] 202
[A/62/62, para. 113]
International arbitral tribunal (under the ICSID Convention)
CMS Gas Transmission Company v. Argentine Republic
In its 2005 award, the arbitral tribunal constituted to hear the CMS Gas Transmission
Company v. Argentina case,[1623] 203 in determining the compensation due by Argentina for
its breaches of the 1991 bilateral investment treaty between the United States of America
and the Argentine Republic, made reference to articles 34, 35, 36 and 38 finally adopted
by the International Law Commission in 2001. With regard to article 36, it stated that
“[c]ompensation is designed to cover any ‘financially assessable damage including loss
[1621] 201 NAFTA, Partial Award, 13 November 2000, para. 310 reproduced in International Law
Reports, vol. 121, p. 127. The relevant parts of article 1110 of NAFTA read as follows:
1110(1). No Party may directly or indirectly nationalize or expropriate an investment of
an investor or another Party in its territory or take a measure tantamount to nationalization
or expropriation of such an investment (“expropriation”), except:
(a) For a public purpose;
(b) On a non-discriminatory basis;
(c) In accordance with due process of law and Article 1105(1); and
(d) On payment of compensation in accordance with paragraphs 2 through 6.
1110(2). Compensation shall be equivalent to the firm market value of the expropriated
investment immediately before the expropriation took place (“date of expropriation”)
and shall not reflect any change in value occurring because the intended expropriation had
become known earlier. Valuation criteria shall include going concern value, asset value,
including declared tax value of tangible property, and other criteria, as appropriate, to determine
fair market value.
[1622] 202 Ibid., para. 312, reproduced in International Law Reports, vol. 121, p. 128. Although the
arbitral tribunal did not mention it expressly, it was referring to draft article 44, as adopted by the International
Law Commission on first reading (see Yearbook … 1996, vol. II (Part Two), para. 65), which
was amended and incorporated in article 36 finally adopted in 2001. For the text of draft article 44, see
footnote [1617] 197 above.
[1623] 203 See footnote [1100] 163 above.
398 Article 36
of profits insofar as it is established’” and that “compensation is only called for when the damage is not made good by restitution”.[1624] 204
[A/62/62, para. 114]
ADC Affiliate Limited and ADC & ADMC Management Limited v. Republic of Hungary
In its 2006 award, the arbitral tribunal constituted to hear the ADC Affiliate Limited and ADC & ADMC Management Limited v. Hungary case, in determining the “customary international law standard” for damages assessment applicable in the case, noted that article 36 finally adopted by the International Law Commission in 2001 provided that “only where restitution cannot be achieved can equivalent compensation be awarded”.[1625] 205
[A/62/62, para. 115]
International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
In its 2007 judgment in the Genocide case, the Court, having found that the Respondent had failed to comply with its obligations under the Genocide Convention in respect of the prevention and punishment of genocide, referred to article 36 finally adopted by the International Law Commission in 2001 in the context of its examination of the question of reparation:
In the circumstances of this case, as the Applicant recognizes, it is inappropriate to ask the Court to find that the Respondent is under an obligation of restitutio in integrum. Insofar as restitution is not possible, as the Court stated in the case of the Gabčíkovo Nagymaros Project (Hungary/Slovakia), ‘[i]t is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it’ (I.C.J. Reports 1997, p. 81, para. 152.; cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 198, paras. 152–153; see also Article 36 of the ILC’s Articles on State Responsibility).[1626] 11
[A/62/62/Add.1, para. 7]
International arbitral tribunal (under the ICSID Convention)
LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc. v. Argentine Republic
In its 2007 award, the arbitral tribunal constituted to hear the LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc. v. Argentina case applied article 36 of the State responsibility articles in its determination of the loss suffered by the investor.[1627] 56 It recalled the relevant paragraph of the commentary to article 36 indicating that the func[
1624] 204 Ibid., para. 401 and notes 214 and 215.
[1625] 205 ICSID, Case No. ARB/03/16, Award, 2 October 2006, paras. 494 and 495.
[1626] 11 ICJ, Judgment, I.C.J. Reports 2007, p. 43, para. 460.
[1627] 56 ICSID, Case No. ARB/02/1, Award, 25 July 2007, paras. 41–43.
Article 36 399
tion of compensation is “to address the actual losses incurred as a result of the internationally wrongful act”,[1628] 57 and held that
[a]ccordingly, the issue that the Tribunal has to address is that of the identification of the ‘actual loss’ suffered by the investor ‘as a result’ of Argentina’s conduct. The question is one of ‘causation’: what did the investor lose by reason of the unlawful acts?[1629] 58
The tribunal also referred to the State responsibility articles in its consideration of a claim for loss of profits. It again recalled the relevant extracts of the commentary in holding that,
as a matter of principle, it is necessary to outline at this point the distinction between accrued losses and lost future profits. Whereas the former have commonly been awarded by tribunals, the latter have only been awarded when ‘an anticipated income stream has attained sufficient attributes to be considered legally protected interests of sufficient certainty to be compensable’. Or, in the words of the Draft articles, ‘in so far as it is established’. The question is one of ‘certainty’. ‘Tribunals have been reluctant to provide compensation for claims with inherently speculative elements’.[1630] 59
[A/65/76, para. 39]
Sempra Energy International v. Argentine Republic
The arbitral tribunal constituted to hear the Sempra Energy International v. Argentine Republic case, in its 2007 award, referred to the requirement in article 36, paragraph 2, that compensation is meant to cover any “financially assessable damage including loss of profits insofar as it is established”, as reflecting the “appropriate standard of reparation under international law” in the absence of restitution or agreed renegotiation of contracts or other measures of redress.[1631] 60
[A/65/76, para. 40]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the United Mexican States
In its 2007 award, the tribunal established to hear the case of Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. Mexico referred to article 36 of the State responsibility articles in support of the assertion that
compensation encompasses both the loss suffered (damnum emergens) and the loss of profits (lucrum cessans). Any direct damage is to be compensated. In addition, the second paragraph of Article 36 recognizes that in certain cases compensation for loss of profits may be appropriate to reflect a rule applicable under customary international law.[1632] 61
[1628] 57 Ibid., para. 43. Reference to paragraph (4) of the commentary to article 36, emphasis in award.
[1629] 58 Ibid., para. 45, emphasis in original.
[1630] 59 Ibid., para. 51 (footnotes omitted). References to article 36, paragraph 2, and to paragraph (27) of the commentary to article 36, emphasis in award.
[1631] 60 See footnote [1026] 25 above, para. 401.
[1632] 61 See footnote [3] 4 above, para. 281.
400 Article 36
The tribunal continued:
Any determination of damages under principles of international law requires a sufficiently clear direct link between the wrongful act and the alleged injury, in order to trigger the obligation to compensate for such injury. A breach may be found to exist, but determination of the existence of the injury is necessary and then a calculation of the injury measured as monetary damages. This Tribunal is required to ensure that the relief sought, i.e., damages claimed, is appropriate as a direct consequence of the wrongful act and to determine the scope of the damage, measured in an amount of money.[1633] 62
[A/65/76, para. 41]
International arbitral tribunal (under the ICSID Convention)
Desert Line Projects LLC v. The Republic of Yemen
In its 2008 award, the arbitral tribunal constituted to hear the Desert Line Projects LLC v. Yemen case, in dealing with a claim for non-material (“moral”) damages, cited the commentary to article 36 in support of its conclusion that
[e]ven if investment treaties primarily aim at protecting property and economic values, they do not exclude, as such, that a party may, in exceptional circumstances, ask for compensation for moral damages. It is generally accepted in most legal systems that moral damages may also be recovered besides pure economic damages. There are indeed no reasons to exclude them … . [As] it was held in the Lusitania cases, non‑material damages may be ‘very real, and the mere fact that they are difficult to measure or estimate by monetary standards makes them none the less real and affords no reason why the injured person should not be compensated’.[1634] 63
[A/65/76, para. 42]
European Court of Human Rights
Guiso-Gallisay v. Italy
In the Guiso-Gallisay v. Italy case, the European Court of Human Rights, in a case involving alleged unlawful expropriation, cited article 36 of the State responsibility articles as reflecting relevant international law in the case.[1635] 64
[A/65/76, para. 43]
International arbitral tribunal (under the ICSID Convention)
Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia
In its award in Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia, the arbitral tribunal indicated that “[t]he Chorzów Factory standard is reflected today in the ILC’s Articles on State Responsibility, and in particular in their compensation provision
[1633] 62 Ibid., para. 282.
[1634] 63 ICSID, Case No. ARB/05/17, Award, 6 February 2008, para. 289, emphasis in original, citing the reference to the Lusitania case (footnote [1550] 514 above), in paragraph (16) of the commentary to article 36.
[1635] 64 See footnote [1502] 55 above, para. 54.
Article 36 401
… ”.[1636] 171 The tribunal then cited the commentary to article 36 in support of the proposition that “compensation is generally assessed on the basis of the [Fair Market Value] of the property rights lost”.[1637] 172 The tribunal also relied on article 36 in providing guidance on the applicable standard of compensation for breach of a provision requiring fair and equitable treatment, in a context where the treaty in question was silent on the point.[1638] 173
[A/68/72, para. 120]
Arbitration Institute of the Stockholm Chamber of Commerce
Mohammad Ammar Al-Bahloul v. The Republic of Tajikistan
In Mohammad Ammar Al-Bahloul v. The Republic of Tajikistan, the arbitral tribunal cited article 36 in support of the assertion that “[w]here damage is not made good by way of restitution, then the ILC Articles envisage monetary compensation for the damage shown to be caused by the misconduct”.[1639] 174
[A/68/72, para. 121]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Gemplus S.A. et al. v. The United Mexican States and Talsud S.A. v. The United Mexican States
In its award, the arbitral tribunal in the Gemplus S.A. et al. v. The United Mexican States and Talsud S.A. v. The United Mexican States cases relied upon article 36 of the State responsibility articles, and the commentary thereto, in its analysis of the claimants’ claim for compensation.[1640] 175 Hence, it noted that:
Article 36 contains two express requirements, (i) that the damage be ‘financially assessable’, i.e. capable of being evaluated in money, and that it be ‘established’, i.e. such that the remedy be commensurate with the injured party’s proven loss and thus make it whole in accordance with the general principle expressed in The Chorzów Factory Case as regards compensation for an illegal act … .[1641] 176
It further pointed to the commentary to paragraph (2) of article 36, as providing guidance when considering “the quality of evidential proof required of a claimant to establish a claim, directly or indirectly, based on lost future profits under international law”,[1642] 177 and noted that the commentary emphasized “‘certainty’ to be established evidentially by a claimant in all cases”.[1643] 178 However, the tribunal took the view that it was clear from other legal materials cited in the commentary that the “concept of certainty [was] both
[1636] 171 See footnote [288] 36 above, para. 504.
[1637] 172 Ibid., para. 505.
[1638] 173 Ibid., para. 532.
[1639] 174 See footnote [1198] 144 above, paras. 52 and 65.
[1640] 175 See footnote [866] 116 above, paras. 13–80 to 13–83.
[1641] 176 Ibid., para. 13–81.
[1642] 177 Ibid., para. 13–82.
[1643] 178 Ibid., para. 13–83.
402 Article 36
relative and reasonable in its application, to be adjusted to the circumstances of the particular case”.[1644] 179 It subsequently indicated that it was,
addressing contingent future events and not actual past events; it [was] seeking to determine not what did or did not happen as past facts but what could have happened in the future. This exercise necessarily involve[d] the Tribunal in assessing whether such future events would have occurred and in quantifying that assessment in money terms, as compensation. It [was] not always possible for a claimant to prove that a future event could or could not happen with certainty; and a tribunal [could] only evaluate the chances of such a future event happening. That is not therefore an exercise in certainty, as such; but it is, in the circumstances, an exercise in ‘sufficient certainty’, as indicated by the ILC’s Commentary cited above.[1645] 180
[A/68/72, paras. 122–123]
International arbitral tribunal (under the ICSID Convention)
Joseph C. Lemire v. Ukraine
In its award in Joseph C. Lemire v. Ukraine, the arbitral tribunal, referring to article 36, paragraph 2, as reflecting the accepted understanding of the purpose of compensation, indicated that it only provided,
a theoretical definition of a general standard; the actual calculation of damages cannot be made in the abstract, it must be case specific: it requires the definition of a financial methodology for the determination of a sum of money which, delivered to the investor, produces the equivalent economic value which, in all probability, the investor would enjoy, ‘but for’ the State’s breach.[1646] 181
The tribunal also relied upon article 36 in support of its assertions that “[t]he duty to make reparation extends only to those damages which are legally regarded as the consequence of an unlawful act”,[1647] 182 and that compensation for speculative claims is not typically awarded.[1648] 183
[A/68/72, paras. 124–125]
El Paso Energy International Company v. The Argentine Republic
In El Paso Energy International Company v. The Argentine Republic, the arbitral tribunal, citing the commentary to article 36, indicated that “[t]he reference to ‘loss of profits’ in Article 36(2) confirms that the value of the property should be determined with reference to a date subsequent to that of the internationally wrongful act, provided the damage is ‘financially assessable’, therefore not speculative”.[1649] 184
[A/68/72, para. 126]
[1644] 179 Ibid.
[1645] 180 Ibid., para. 13–91.
[1646] 181 See footnote [1291] 156, para. 152.
[1647] 182 Ibid., para. 155.
[1648] 183 Ibid., paras. 245–246.
[1649] 184 See footnote [56] 16 above, para. 710.
Article 36 403
Marion Unglaube and Reinhard Unglaube v. Republic of Costa Rica
In its award in Marion Unglaube and Reinhard Unglaube v. Republic of Costa Rica, the arbitral tribunal referred to the State responsibility articles, particularly articles 34 through 39, as constituting “subsequent international practice” reflecting “the compensation standard under customary international law”.[1650] 185
[A/68/72, para. 127]
International Court of Justice
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)
In its judgment on compensation in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), the International Court of Justice cited, inter alia, the commentary to article 36 of the State responsibility articles in support of the proposition that “[w]hile an award of compensation relating to loss of future earnings inevitably involves some uncertainty, such a claim cannot be purely speculative”.[1651] 186
[A/68/72, para. 128]
International arbitral tribunal (under the ICSID Convention)
[Mr Franck Charles Arif v. Republic of Moldova
The arbitral tribunal in Mr Franck Charles Arif v. Republic of Moldova referred “to the principles of international law summarised in Articles 34, 35 and 36 of the International Law Commission’s Articles on State Responsibility”[1652] 172 as relevant for the analysis regarding the award of reparation.
[A/71/80, para. 121]]
Ioan Micula and others v. Romania
[In Ioan Micula and others v. Romania, the arbitral tribunal referred to articles 34 and 36 in acknowledging that the obligation to make full reparation “[i]n most cases … involves the payment of compensation”.[1653] 173 It further noted that “the commentary to the ILC Articles limits compensation to ‘damage actually suffered as a result of the internationally wrongful act, and excludes damage which is indirect or remote’”.[1654] 174
[A/71/80, para. 122]]
[1650] 185 ICSID, Case Nos. ARB/08/1 and ARB/09/20, Award, 16 May 2012, para. 306.
[1651] 186 ICJ, Judgment, 19 June 2012, para. 49.
[1652] [172 See footnote [320] 46 above, para. 560.]
[1653] [173 See footnote [1188] 133 above, para. 917.]
[1654] [174 Ibid., para. 1009 (quoting para. (5) of the commentary to article 34).]
404 Article 36
The arbitral tribunal in Ioan Micula and others v. Romania, observed that article 36, paragraph 2, provides that “compensation shall cover any financially assessable damage including loss of profits insofar as it is established”.[1655] 196
[A/71/80, para. 133]
Arbitration Institute of the Stockholm Chamber of Commerce
Anatolie Stati, Gabriel Stati, Ascom Group S.A. and Terra Raf Trans Traiding Ltd v. Kazakhstan
In Anatolie Stati, Gabriel Stati, Ascom Group S.A. and Terra Raf Trans Traiding Ltd v. Kazakhstan, the arbitral tribunal agreed that, “as reflected in Article 36 and Article 39 … Claimants bear the burden of demonstrating that the claimed quantum of compensation is caused by the host State’s conduct”.[1656] 197 The tribunal also noted that the respondent
rightly referred to the comments in [the] Commentaries on the ILC Articles on State Responsibility and to respective comments in earlier awards that the investor must meet a high standard of proof to establish a claim for lost profits, especially due to the degree of economic, political and social exposure of long-term investment projects. To meet this standard, an investor must show that their project either has a track record of profitability rooted in a perennial history of operations, or has binding contractual revenue obligations in place that establish the expectation of profit at a certain level over a given number of years. This is true even for projects in early stages.[1657] 198
[A/71/80, para. 134]
International arbitral tribunal (under the ICSID Convention)
SAUR International S.A. v. Republic of Argentina
In SAUR International S.A. v. Republic of Argentina, the arbitral tribunal cited article 36, paragraph 2, when discussing “un principe international bien établi et que les deux parties reconnaissent: une fois les violations avérées, l’investisseur affecté doit obtenir une réparation intégrale qui soit équivalente au paiement d’une indemnisation incluant à la fois le dommage réel et le manque à gagner”.[1658] 199
[A/71/80, para. 135]
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
[In Hulley Enterprises Limited (Cyprus) v. The Russian Federation, the arbitral tribunal noted that it will “assess damages in the light of the foregoing accepted principles of international law”,[1659] 147 including articles 31, 36 and 39. In assessing contributory fault, the tribunal, quoting the commentary to article 31, stated that
[1655] 196 See footnote [1188] 133 above, para. 920 (quoting article 36 (emphasis omitted)).
[1656] 197 SCC, Case No. V (116/2010), Award, 19 December 2013, paras. 1330 and 1452.
[1657] 198 Ibid., para. 1688.
[1658] 199 ICSID, Case No. ARB/04/4, Award, 22 May 2014, para. 160, footnote 105 (footnote omitted).
[1659] [147 See footnote [19] 7 above, para. 1593.]
Article 36 405
[i]t is true that cases can occur where an identifiable element of injury can properly be allocated to one of several concurrently operating causes alone. But unless some part of the injury can be shown to be severable in causal terms from that attributed to the responsible State, the latter is held responsible for all the consequences, not being too remote, of its wrongful conduct.[1660] 148
In relation to the quantification of damage in cases of multiple causes for the same damage, the tribunal also cited the commentary to article 31, emphasizing that
as the commentary makes clear, the mere fact that damage was caused not only by a breach, but also by a concurrent action that is not a breach does not, as such, interrupt the relationship of causation that otherwise exists between the breach and the damage. Rather, it falls to the Respondent to establish that a particular consequence of its actions is severable in causal terms (due to the intervening actions of Claimants or a third party) or too remote to give rise to Respondent’s duty to compensate.[1661] 149
[A/71/80, para. 106]]
In deciding on the existence of a breach of the Energy Charter Treaty, the arbitral tribunal in Hulley Enterprises Limited (Cyprus) v. The Russian Federation referred to the principle contained in article 36 and quoted from the commentary to the article, which states that “the function of compensation is to address the actual losses incurred as a result of the internationally wrongful act. Compensation corresponds to the financially assessable damage suffered … it is not concerned to punish … nor does compensation have an expressive or exemplary character”.[1662] 200 The tribunal indicated that while unanticipated events “decrease the value of the right to restitution (and accordingly the right to compensation in lieu of restitution), they do not affect an investor’s entitlement to compensation of the damage ‘not made good by restitution’ within the meaning of Article 36(1) of the ILC Articles on State Responsibility”.[1663] 201
[A/71/80, para. 136]
International arbitral tribunal (under the ICSID Convention)
Tidewater Investments SRL and Tidewater Caribe C.A. v. The Bolivarian Republic of Venezuela
In Tidewater Investments SRL and Tidewater Caribe C.A. v. The Bolivarian Republic of Venezuela, the arbitral tribunal referenced the commentary to article 36 in support of “the standard of compensation to be applied in cases of lawful compensation, where the investment constituted a going concern at the time of the taking. The Guidelines prescribe ‘the fair market value of the taken asset as such value is determined immediately before the time at which the taking occurred’”.[1664] 202
[A/71/80, para. 137]
[1660] [148 Ibid., para. 1598 (quoting para. (13) of the commentary to article 31).]
[1661] [149 Ibid., para. 1775.]
[1662] 200 Ibid., para. 1590 (quoting para. (4) of the commentary to article 36).
[1663] 201 Ibid., para. 1768.
[1664] 202 ICSID, Case No. ARB/10/5, Award, 13 March 2015, para. 153, footnote 241.
406 Article 36
Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The Argentine Republic
The arbitral tribunal in Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The Argentine Republic referred to article 36 in support of the view that “the basic standard to be applied is that of full compensation (restitutio in integrum) for the loss incurred as a result of the internationally wrongful act”, which represents “the accepted standard in customary international law”.[1665] 203
[A/71/80, para. 138]
Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia
The arbitral tribunal in Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia indicated with reference to article 36 that, “if restitution in kind is impossible or not practicable, the compensation awarded must wipe out all the consequences of the wrongful act”, and that “compensation shall cover any financially assessable damage, including loss of profits insofar as it is established”.[1666] 204 It also observed that it was required to “value the loss with reasonable certainty”.[1667] 205
[A/71/80, para. 139]
Hrvatska Elektroprivreda d.d. v. Republic of Slovenia
In Hrvatska Elektroprivreda d.d. v. Republic of Slovenia, the arbitral tribunal relied on article 36 as “reflecting the principle in Chorzów Factory” when stating that “it is trite to observe that the Claimant can only recover in compensation the loss that it has actually suffered”.[1668] 206
[A/71/80, para. 140]
Tenaris S.A. and Talta—Trading e Marketing Sociedade Unipessoal Lda v. Bolivarian Republic of Venezuela
The arbitral tribunal in Tenaris S.A. and Talta—Trading e Marketing Sociedade Unipessoal Lda v. Bolivarian Republic of Venezuela stated that the State responsibility articles “are currently considered to be the most accurate reflection of customary international law” regarding the measurement and calculation of compensation.[1669] 207 Regarding the determination of fair market value, the arbitral tribunal noted that “[e]ach tribunal must, thus, attempt to give meaning both to the words of the treaty regarding the putative valuation date, as well as to the standard set forth in Article 36 of the ILC Articles, and the ruling of the PCIJ in the Chorzów case”.[1670] 208
[A/71/80, para. 141]
[1665] 203 See footnote [63] 16 above, para. 27.
[1666] 204 See footnote [65] 18 above, para. 328 (quoting article 36).
[1667] 205 Ibid., para. 384.
[1668] 206 See footnote [1322] 163 above, para. 238, footnote 19.
[1669] 207 See footnote [342] 68 above, para. 515.
[1670] 208 Ibid., para. 543 (footnotes omitted).
Article 36 407
[Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under, part III, “Principal legal and other texts”,[1671] 150 which were relevant with regard to the parties’ claims for relief.[1672] 151
[A/74/83, p. 28]]
[International Arbitral tribunal (under the ICSID Convention)
Joseph Houben v. Republic of Burundi
In Joseph Houben v. Republic of Burundi, the arbitral tribunal stated that article 31 of the State responsibility articles codified the customary international law standard of integral reparation in cases in which a State violates its international obligations.[1673] 157 Interpreting articles 35 and 36 of the State responsibility articles, the tribunal noted that the responsible States may only provide compensation to the extent that restitution is not possible.[1674] 158
[A/74/83, p. 29]]
[Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan
The arbitral tribunal in Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan concluded, in the view of articles 31, 35 and 36 of the State responsibility articles, that “Karkey is entitled to an award of damages that will erase the consequences of Pakistan’s wrongful acts and re-establish the situation that would have existed but for such wrongful acts”.[1675] 176
[A/74/83, p. 31]]
[UAB E Energija (Lithuania) v. Republic of Latvia
In UAB E Energija (Lithuania) v. Republic of Latvia, the arbitral tribunal stated that “[u]nder Article 31 of the ILC Articles the State responsible for an internationally wrongful act must make ‘full reparation for the injury caused’ by such act;” and noted that for damage to be recoverable under the terms of article 36 of the State responsibility articles, “the damage must have been caused by the State’s internationally wrongful act complained of by the investor, Article 31 of the ILC Articles”.[1676] 177
[A/74/83, p. 31]]
[1671] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1672] [151 Ibid., para. 9.9.]
[1673] [157 ICSID, Case No. ARB/13/7, Award, 12 January 2016, para. 222.]
[1674] [158 Ibid., paras. 223–224.]
[1675] [176 ICSID, Case No. ARB/13/1, Award, 22 August 2017, para. 663.]
[1676] [177 ICSID, Case No. ARB/12/33, Award, 22 December 2017, paras. 1127–1129.]
408 Article 36
[Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of Kazakhstan
The arbitral tribunal in Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of Kazakhstan concluded, after referring to articles 31, 34 and 36 of the State responsibility articles, that
the damages actually incurred by CIOC [Caratube International Oil Company LLP] as a result of the Respondent’s unlawful expropriation of the Contract (as determined by a majority of the Tribunal) are appropriately assessed using a subjective and concrete valuation approach providing full reparation for the damages actually incurred by CIOC, without FMV [fair market value].[1677] 191
[A/74/83, p. 34]]
[European Court of Human Rights
Ryabkin and Volokitin v. Russia
In Ryabkin and Volokitin v. Russia, the European Court of Human Rights considered articles 35 and 36 of the State responsibility articles as relevant international law.[1678] 193
[A/74/83, p. 34]]
International Arbitral tribunal (under the ICSID Convention)
Joseph Houben v. Republic of Burundi
In Joseph Houben v. Republic of Burundi, the arbitral tribunal referred to article 36 of the State responsibility articles when stating that it is generally recognized that in matters of expropriation, the value of the expropriated good(s) has to assessed with reference to the fair market value.[1679] 199
[A/74/83, p. 35]
Tenaris S.A. and Talta-Trading e Marketing Sociedade Unipessoal LDA v. Bolivarian Republic of Venezuela
In Tenaris S.A. and Talta-Trading e Marketing Sociedade Unipessoal LDA v. Bolivarian Republic of Venezuela, the arbitral tribunal stated that the State responsibility articles “are currently considered to be the most accurate reflection of customary international law” regarding the assessment of compensation.[1680] 200 Regarding the determination of fair market value, the arbitral tribunal noted that “[e]ach tribunal must, thus, attempt to give meaning both to the words of the treaty regarding the putative valuation date, as well as to the standard set forth in Article 36 of the ILC Articles, and the ruling of the PCIJ in the Chorzów case”.[1681] 201
[A/74/83, p. 35]
[1677] [191 ICSID, Case No. ARB/13/13, Award of the Tribunal, 27 September 2017, para. 1085.]
[1678] [193 ECHR, Third Section, Application Nos. 52166/08 and 8526/09, Judgment, 28 June 2016, para. 30.]
[1679] 199 ICSID, Case No. ARB/13/7, Award (French), 12 January 2016, paras. 224–225 and footnote 157.
[1680] 200 ICSID, Case No. ARB/11/26, Award, 29 January 2016, paras. 515–516.
[1681] 201 Ibid., para. 543.
Article 36 409
International arbitral tribunal (under the ICSID Additional Facility Rules)
Crystallex International Corporation v. Bolivarian Republic of Venezuela
The arbitral tribunal in Crystallex International Corporation v. Bolivarian Republic of Venezuela cited article 36 and the corresponding commentary to note that “[a]ppraising the investment in accordance with the fair market value methodology indeed ensures that the consequences of the breach are wiped out and that the situation which would, in all probability, have existed if the wrongful acts had not been committed is reestablished”.[1682] 202 The tribunal also noted that “the ILC Articles recognize that in certain cases compensation for loss of profits may be appropriate”.[1683] 203
[A/74/83, p. 35]
Ad hoc committee (under the ICSID Convention)
Tidewater Investment SRL and Tidewater Caribe, C.A. v. Bolivarian Republic of Venezuela
In Tidewater Investment SRL and Tidewater Caribe, C.A. v. Bolivarian Republic of Venezuela, the ad hoc committee, in discussing the respondent’s arguments for an excess of powers by the tribunal, noted that the tribunal had considered the “World Bank Guidelines [on the Treatment of Foreign Direct Investment]… together with case law, doctrine and the International Law Commission Draft on the Responsibility of States, as providing ‘reasonable guidance’ for the interpretation of Articles 5 and 8 of the BIT”[1684] 204 to find “a proper standard for the determination of the ‘market value’”.[1685] 205
[A/74/83, p. 35]
International arbitral tribunal (under the ICSID Convention)
Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela
The arbitral tribunal in Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela, referred to articles 35 and 36 of the State responsibility articles in support of its view that “the fair market value also reflects the compensation standard under customary international law”.[1686] 206
[A/74/83, p. 36]
Burlington Resources Inc. v. Republic of Ecuador
The arbitral tribunal in Burlington Resources Inc. v. Republic of Ecuador concluded, citing article 36 of the State responsibility articles, that “Burlington has not proven, with
[1682] 202 ICSID, Case No. ARB(AF)/11/2, Award, 4 April 2016, paras. 849–850.
[1683] 203 Ibid., para. 873.
[1684] 204 ICSID, Case No. ARB/10/5, Decision on Annulment, 27 December 2016, para. 144.
[1685] 205 Ibid., para. 132.
[1686] 206 ICSID, Case No. ARB/12/13, Decision on Liability and the Principles of Quantum, 30 December 2016, paras. 627 and 711.
410 Article 36
the reasonable certainty that international law requires for a lost profits claim, that an extension capable of being ‘taken’ [by expropriation] would in fact have materialized from its [Burlington’s] right to negotiate [a contractual extension]”.[1687] 207
[A/74/83, p. 36]
Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan
The arbitral tribunal in Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan, with reference to article 36 of the State responsibility articles, calculated “compensation reflecting the capital value of property taken as a result of an internationally wrongful on the basis of the ‘fair market value’ of the property lost”, taking into account “the nature of the asset concerned”.[1688] 208
[A/74/83, p. 36]
Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain
The arbitral tribunal in Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain concluded, citing the text of article 36, paragraph 1, that the claimant “is entitled to full reparation of the loss that it has suffered from Respondent’s breaches of the treaty”.[1689] 209 It further observed that “moral damages are not covered by the principle set out in Article 36 of the ILC Articles”.[1690] 210
[A/74/83, p. 36]
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
In Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, the tribunal stated that
[i]t follows that any compensation to be awarded by this Tribunal is to be decided by applying principles of customary international law, namely ‘full reparation’ to wipe out, as far as possible, the consequences of the Respondent’s international wrongs under the general principle long established in the PCIJ’s judgment in Chor[z]ów Factory (1928), as also confirmed by Articles 31 and 36 of the ILC Articles on State Responsibility.[1691] 211
The tribunal
decide[d] to use Three-Month LIBOR + 2.0% compounded quarterly as the appropriate rate for pre-award interest [and] considered that rate to reflect a reasonable rate of interest applicable to the Project as an investment by the Claimant, in concordance with the principles in Chorzów Factory (1928) and Article 36 of the ILC Articles on State Responsibility.[1692] 212
[A/74/83, p. 36]
[1687] 207 ICSID, Case No. ARB/08/5, Decision on Reconsideration and Award, 7 February 2017, para. 278.
[1688] 208 ICSID, Case No. ARB/13/1, Award, 22 August 2017, paras. 872–73.
[1689] 209 ICSID, Case No. ARB/14/1, Award, 16 May 2018, para. 564.
[1690] 210 Ibid., para. 565.
[1691] 211 ICSID, Case No. ARB/14/4, Award, 31 August 2018, paras. 10.96–10.97.
[1692] 212 Ibid., para. 10.138.
Article 36 411
[Marco Gavazzi and Stefano Gavazzi v. Romania
The arbitral tribunal in Marco Gavazzi and Stefano Gavazzi v. Romania, agreeing with the discussion of articles 31, 36 and 39 of the State responsibility articles in previous arbitral cases, “determine[d] that the Respondent caused the losses suffered by the Claimants as assessed in this Award, without any reduction for ‘contributory negligence’ or other fault, as alleged by the Respondent”.[1693] 236
[A/74/83, p. 39]]
[International arbitral tribunal (under UNCITRAL Rules)
Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria
The arbitral tribunal in Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria took the view that “all organs of the State, including those which have an independent existence in domestic law, are to be treated as part of the State. This is customary international law, and is clear in the light of the Articles”.[1694] 42 The tribunal also cited articles 1, 5, 9, 34, 36 and 38.[1695] 43
[A/77/74, p. 11]]
[International arbitral tribunal (under the ICSID Convention)
Eco Oro Minerals Corp. v. Republic of Colombia
The arbitral tribunal in Eco Oro Minerals Corp. v. Republic of Colombia referred to articles 27, under which the invocation of a circumstance precluding wrongfulness is without prejudice to the question of compensation for any material loss caused by the act in question, and to article 36.[1696] 112 The tribunal therefore determined that under the applicable investment treaty, “whilst a State may adopt or enforce a measure pursuant to the stated objectives” in the treaty, “this does not prevent an investor claiming … that such a measure entitles it to the payment of compensation”.[1697] 113
[A/77/74, p. 22]]
[1693] [236 ICSID, Case No. ARB/12/25, Award, 18 April 2017, para. 280, referring to CME Czech Republic B.V. v. Czech Republic, Partial Award, 13 September 2001, para. 583; Anatolie Stati, Gabriel Stati, Ascom Group SA and Terra Raf Trans Traiding Ltd v. Republic of Kazakhstan (footnote [1656] 196 above), paras. 1330–1332; and Gemplus, S.A., SLP, S.A., Gemplus Industrial, S.A. de C.V. and Talsud S.A. v. United Mexican States (ICSID Cases Nos. ARB(AF)/04/03 & ARB(AF)/04/), Award (16 June 2009), para. 11.12.]
[1694] [42 Final Award, 26 March 2021, para. 72.]
[1695] [43 Ibid., paras. 72 and 134–135.]
[1696] [112 See footnote [401] 51 above, para. 835.]
[1697] [113 Ibid., para. 830.]
412 Article 36
[Permanent Court of Arbitration (under UNCITRAL Rules)
Bank Melli Iran and Bank Saderat Iran v. Kingdom of Bahrain
The arbitral tribunal in Bank Melli Iran and Bank Saderat Iran v. Kingdom of Bahrain cited the text of article 31 and recalled that “it is a basic principle of international law that States incur responsibility for their internationally wrongful acts. The corollary to this principle is that the responsible State must repair the damage caused by its internationally wrongful act”.[1698] 157 The tribunal also referred to articles 36[1699] 158 and 37.[1700] 159
[A/77/74, p. 28]]
[International Tribunal for the Law of the Sea
M/V “Norstar” (Panama v. Italy)
In M/V “Norstar” (Panama v. Italy), the International Tribunal for the Law of the Sea noted that article 36, paragraph 2, provided that “compensation shall cover any financially assessable damages including loss of profits insofar as it is established”.[1701] 181
[A/77/74, p. 31]]
International arbitral tribunal (under the ICSID Convention)
9REN Holding S.à.r.l. v. Kingdom of Spain
The arbitral tribunal in 9REN Holding S.à.r.l. v. Kingdom of Spain referred to article 36 in assessing the amount of recoverable legal costs of the proceeding, noting that the claims for legal costs had been made under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, “and not as compensation for an internationally wrongful act subject to the Chorzów Factory and other principles of international law”.[1702] 182
[A/77/74, p. 31]
Perenco Ecuador Limited v. Ecuador
In Perenco Ecuador Limited v. Ecuador, the arbitral tribunal found that, pursuant to article 36, “it should award compensation insofar as [the] damage is not made good by restitution”.[1703] 183 Furthermore, the tribunal emphasized that “[t]he key point is that financial damage must not only be proximately caused by the unlawful act(s), but that it also be ‘assessable’, that is, capable of being assessed”.[1704] 184
[A/77/74, p. 31]
[1698] [157 PCA, Case No. 2017–25, Final Award, 9 November 2021, para. 738.]
[1699] [158 Ibid., para. 740.]
[1700] [159 Ibid., para. 701.]
[1701] 181 ITLOS, M/V “Norstar” (Panama v. Italy) (footnote [72] 12 above), p. 116, para. 431.
[1702] 182 See footnote [1372] 122 above, para. 440.
[1703] 183 See footnote [1379] 129 above, para. 74.
[1704] 184 Ibid., paras. 321–322.
Article 36 413
(DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar
In (DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar, the arbitral tribunal cited articles 35, 36 and 38, noting that “in investment law, full reparation may take the form of restitution or compensation”, plus interest.[1705] 179
The arbitral tribunal noted that, pursuant to article 36, “it is generally accepted that compensation can be claimed for incidental expenses incurred as the result of an internationally wrongful act, insofar as they are financially assessable and reasonable”.[1706] 185
[A/77/74, p. 31]
Permanent Court of Arbitration (under UNCITRAL Rules)
OOO Manolium Processing v. Republic of Belarus
The arbitral tribunal in OOO Manolium Processing v. Republic of Belarus noted that article 36, paragraph 1, reflected the general principle that “injured claimants bear the burden of demonstrating that there is a sufficiently close relationship between the host State’s irregular conduct and the compensation which is being claimed. The duty to compensate extends only to those damages which are legally regarded as the consequence of an unlawful act”.[1707] 186
[A/77/74, p. 31]
International arbitral tribunal (under the ICSID Convention)
Eco Oro Minerals Corp. v. Republic of Colombia
The arbitral tribunal in Eco Oro Minerals Corp. v. Republic of Colombia indicated that “[w]here restitution is not possible, pursuant to Article 36 (1) the ILC Draft Articles, a State’s obligation is to pay compensation for the damage caused”.[1708] 187
[A/77/74, p. 32]
Pawlowski AG and Project Sever s.r.o. v. Czech Republic
In Pawlowski AG and Project Sever s.r.o. v. Czech Republic, the arbitral tribunal explained that damages, “under Article 36, include loss of profits insofar as they are established”.[1709] 188 Furthermore, it stressed that article 36, paragraph 1, reflected the general principle that “injured claimants bear the burden of demonstrating … that the claimed quantum of damage was actually suffered, and … that such damages flowed from the host State’s conduct, and that the causal relationship was sufficiently close (i.e., not ‘too remote’)”.[1710] 189
[A/77/74, p. 32]
[1705] [179 See footnote [1029] 108 above, para. 396.]
[1706] 185 Ibid., para. 427.
[1707] 186 See footnote [799] 86 above, para. 657.
[1708] 187 See footnote [401] 51 above, para. 894.
[1709] 188 See footnote [402] 52 above, para. 726.
[1710] 189 Ibid., paras. 728–729.
414 Article 36
Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic
In Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic, the arbitral tribunal noted that “[s]ince restitution of Claimants to the status quo ante … is neither requested nor suggested by the Parties, nor is it materially possible, the only form of reparation in question in the present proceeding is compensation in the sense of Article 36 of the ILC Articles”. The tribunal further cited the article, noting that “[p]ursuant to paragraph 1 of that provision, Respondent ‘is under an obligation to compensate for the damage caused’; pursuant to paragraph 2 of the same provision, ‘compensation shall cover any financially assessable damage including loss of profits insofar as it is established’”.[1711] 190
[A/77/74, p. 32]
[1711] 190 See footnote [193] 26 above, para. 441.
415
Article 37. Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
Commentary
(1) Satisfaction is the third form of reparation which the responsible State may have to provide in discharge of its obligation to make full reparation for the injury caused by an internationally wrongful act. It is not a standard form of reparation, in the sense that in many cases the injury caused by an internationally wrongful act of a State may be fully repaired by restitution and/or compensation. The rather exceptional character of the remedy of satisfaction, and its relationship to the principle of full reparation, are emphasized by the phrase “insofar as [the injury] cannot be made good by restitution or compensation”. It is only in those cases where those two forms have not provided full reparation that satisfaction may be required.
(2) Article 37 is divided into three paragraphs, each dealing with a separate aspect of satisfaction. Paragraph 1 addresses the legal character of satisfaction and the types of injury for which it may be granted. Paragraph 2 describes, in a non-exhaustive fashion, some modalities of satisfaction. Paragraph 3 places limitations on the obligation to give satisfaction, having regard to former practices in cases where unreasonable forms of satisfaction were sometimes demanded.
(3) In accordance with paragraph 2 of article 31, the injury for which a responsible State is obliged to make full reparation embraces “any damage, whether material or moral, caused by the internationally wrongful act of a State.” Material and moral damage resulting from an internationally wrongful act will normally be financially assessable and hence covered by the remedy of compensation. Satisfaction, on the other hand, is the remedy for those injuries, not financially assessable, which amount to an affront to the State. These injuries are frequently of a symbolic character, arising from the very fact of the breach of the obligation, irrespective of its material consequences for the State concerned.
(4) The availability of the remedy of satisfaction for injury of this kind, sometimes described as “non-material injury”,[1712] 580 is well established in international law. The point was made, for example, by the tribunal in the “Rainbow Warrior” arbitration:
There is a long established practice of States and international Courts and Tribunals of using satisfaction as a remedy or form of reparation (in the wide sense) for the breach of an international obliga[
1712] 580 See C. Dominicé, “De la réparation constructive du préjudice immatériel souffert par un État”, L’ordre juridique international entre tradition et innovation: recueil d’études (Paris, Presses Universitaires de France, 1997), p. 349, at p. 354.
416 Article 37
tion. This practice relates particularly to the case of moral or legal damage done directly to the State, especially as opposed to the case of damage to persons involving international responsibilities.[1713] 581
State practice also provides many instances of claims for satisfaction in circumstances where the internationally wrongful act of a State causes non-material injury to another State. Examples include situations of insults to the symbols of the State, such as the national flag,[1714] 582 violations of sovereignty or territorial integrity,[1715] 583 attacks on ships or aircraft,[1716] 584 ill-treatment of or deliberate attacks on heads of State or Government or diplomatic or consular representatives or other protected persons[1717] 585 and violations of the premises of embassies or consulates or of the residences of members of the mission.[1718] 586
(5) Paragraph 2 of article 37 provides that satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. The forms of satisfaction listed in the article are no more than examples. The appropriate form of satisfaction will depend on the circumstances and cannot be prescribed in advance.[1719] 587 Many possibilities exist, including due inquiry into the causes of an accident resulting in harm or injury,[1720] 588 a trust fund to manage compensation payments in the interests of the beneficiaries, disciplinary or penal action against the individuals whose conduct caused the
[1713] 581 “Rainbow Warrior” (footnote [40] 46 above), pp. 272–273, para. 122.
[1714] 582 Examples are the Magee case (Whiteman, Damages in International Law, vol. I (footnote [1007] 347 above), p. 64 (1874)), the Petit Vaisseau case (La prassi italiana di diritto internazionale, 2nd series (footnote [1485] 498 above), vol. III, No. 2564 (1863)) and the case that arose from the insult to the French flag in Berlin in 1920 (C. Eagleton, The Responsibility of States in International Law (New York University Press, 1928), pp. 186–187).
[1715] 583 As occurred in the “Rainbow Warrior” arbitration (footnote [40] 46 above).
[1716] 584 Examples include the attack carried out in 1961 against a Soviet aircraft transporting President Brezhnev by French fighter planes over the international waters of the Mediterranean (RGDIP, vol. 65 (1961), p. 603); and the sinking of a Bahamian ship in 1980 by a Cuban aircraft (ibid., vol. 84 (1980), pp. 1078–1079).
[1717] 585 See F. Przetacznik, “La responsabilité internationale de l’État à raison des préjudices de caractère moral et politique causés à un autre État”, RGDIP, vol. 78 (1974), p. 919, at p. 951.
[1718] 586 Examples include the attack by demonstrators in 1851 on the Spanish Consulate in New Orleans (Moore, Digest, vol. VI, p. 811, at p. 812), and the failed attempt of two Egyptian policemen, in 1888, to intrude upon the premises of the Italian Consulate at Alexandria (La prassi italiana di diritto internazionale, 2nd series (footnote [1485] 498 above), vol. III, No. 2558). Also see cases of apologies and expressions of regret following demonstrations in front of the French Embassy in Belgrade in 1961 (RGDIP, vol. 65 (1961), p. 610), and the fires in the libraries of the United States Information Services in Cairo in 1964 (ibid., vol. 69 (1965), pp. 130–131) and in Karachi in 1965 (ibid., vol. 70 (1966), pp. 165–166).
[1719] 587 In the “Rainbow Warrior” arbitration the tribunal, while rejecting New Zealand’s claims for restitution and/or cessation and declining to award compensation, made various declarations by way of satisfaction, and in addition a recommendation “to assist [the parties] in putting an end to the present unhappy affair”. Specifically, it recommended that France contribute US$ 2 million to a fund to be established “to promote close and friendly relations between the citizens of the two countries” (footnote [40] 46 above), p. 274, paras. 126–127. See also L. Migliorino, “Sur la déclaration d’illicéité comme forme de satisfaction: à propos de la sentence arbitrale du 30 avril 1990 dans l’affaire du Rainbow Warrior”, RGDIP, vol. 96 (1992), p. 61.
[1720] 588 For example, the United States naval inquiry into the causes of the collision between an American submarine and the Japanese fishing vessel, the Ehime Maru, in waters off Honolulu, The New York Times, 8 February 2001, sect. 1, p. 1.
Article 37 417
internationally wrongful act[1721] 589 or the award of symbolic damages for non-pecuniary injury.[1722] 590 Assurances or guarantees of non-repetition, which are dealt with in the articles in the context of cessation, may also amount to a form of satisfaction.[1723] 591 Paragraph 2 does not attempt to list all the possibilities, but neither is it intended to exclude them. Moreover, the order of the modalities of satisfaction in paragraph 2 is not intended to reflect any hierarchy or preference. Paragraph 2 simply gives examples which are not listed in order of appropriateness or seriousness. The appropriate mode, if any, will be determined having regard to the circumstances of each case.
(6) One of the most common modalities of satisfaction provided in the case of moral or non-material injury to the State is a declaration of the wrongfulness of the act by a competent court or tribunal. The utility of declaratory relief as a form of satisfaction in the case of non-material injury to a State was affirmed by ICJ in the Corfu Channel case, where the Court, after finding unlawful a mine-sweeping operation (Operation Retail) carried out by the British Navy after the explosion, said:
[T]o ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty.
This declaration is in accordance with the request made by Albania through her Counsel, and is in itself appropriate satisfaction.[1724] 592
This has been followed in many subsequent cases.[1725] 593 However, while the making of a declaration by a competent court or tribunal may be treated as a form of satisfaction in a given case, such declarations are not intrinsically associated with the remedy of satisfaction. Any court or tribunal which has jurisdiction over a dispute has the authority to determine the lawfulness of the conduct in question and to make a declaration of its findings, as a necessary part of the process of determining the case. Such a declaration may be a preliminary to a decision on any form of reparation, or it may be the only remedy sought. What the Court did in the Corfu Channel case was to use a declaration as a form of satisfaction in a case where Albania had sought no other form. Moreover, such a declaration has further advantages: it should be clear and self-contained and will by definition not exceed the scope or limits of satisfaction referred to in paragraph 3 of article 37. A judicial declaration is not listed in paragraph 2 only because it must emanate from a competent third party with jurisdiction over a dispute, and the articles are not concerned to specify such a party or to deal with issues of judicial jurisdiction. Instead, article 37 specifies the acknowledgement of the breach by the responsible State as a modality of satisfaction.
(7) Another common form of satisfaction is an apology, which may be given verbally or in writing by an appropriate official or even the Head of State. Expressions of regret or apolo[
1721] 589 Action against the guilty individuals was requested in the case of the killing in 1948, in Palestine, of Count Bernadotte while he was acting in the service of the United Nations (Whiteman, Digest of International Law, vol. 8, pp. 742–743) and in the case of the killing of two United States officers in Tehran (RGDIP, vol. 80 (1966), p. 257).
[1722] 590 See, e.g., the cases “I’m Alone”, UNRIAA, vol. III (Sales No. 1949.V.2), p. 1609 (1935); and “Rainbow Warrior” (footnote [40] 46 above).
[1723] 591 See paragraph (11) of the commentary to article 30.
[1724] 592 Corfu Channel, Merits (footnote [29] 35 above), p. 35, repeated in the operative part (p. 36).
[1725] 593 For example, “Rainbow Warrior” (footnote [40] 46 above), p. 273, para. 123.
418 Article 37
gies were required in the “I’m Alone”,[1726] 594 Kellett[1727] 595 and “Rainbow Warrior”[1728] 596 cases, and were offered by the responsible State in the Consular Relations[1729] 597 and LaGrand[1730] 598 cases. Requests for, or offers of, an apology are a quite frequent feature of diplomatic practice and the tender of a timely apology, where the circumstances justify it, can do much to resolve a dispute. In other circumstances an apology may not be called for, e.g. where a case is settled on an ex gratia basis, or it may be insufficient. In the LaGrand case the Court considered that “an apology is not sufficient in this case, as it would not be in other cases where foreign nationals have not been advised without delay of their rights under article 36, paragraph 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties”.[1731] 599
(8) Excessive demands made under the guise of “satisfaction” in the past[1732] 600 suggest the need to impose some limit on the measures that can be sought by way of satisfaction to prevent abuses, inconsistent with the principle of the equality of States.[1733] 601 In particular, satisfaction is not intended to be punitive in character, nor does it include punitive damages. Paragraph 3 of article 37 places limitations on the obligation to give satisfaction by setting out two criteria: first, the proportionality of satisfaction to the injury; and secondly, the requirement that satisfaction should not be humiliating to the responsible State. It is true that the term “humiliating” is imprecise, but there are certainly historical examples of demands of this kind.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Convention)
Quiborax S.A. et al. v. Plurinational State of Bolivia
In its decision on jurisdiction in Quiborax S.A. et al. v. Plurinational State of Bolivia, the arbitral tribunal decided that it was more appropriate to entertain in the final award on the merits the claimants’ request for a declaratory judgment pursuant to article 37.[1734] 187
[A/68/72, para. 129]
[1726] 594 See footnote [1722] 590 above.
[1727] 595 Moore, Digest, vol. V, p. 44 (1897).
[1728] 596 See footnote [40] 46 above.
[1729] 597 Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, p. 248. For the text of the United States’ apology, see United States Department of State, Text of Statement Released in Asunción, Paraguay; Press statement by James P. Rubin, Spokesman, 4 November 1998. For the order discontinuing proceedings of 10 November 1998, see I.C.J. Reports 1998, p. 426.
[1730] 598 See footnote [236] 119 above.
[1731] 599 LaGrand, Merits (ibid.), para. 123.
[1732] 600 For example, the joint note presented to the Chinese Government in 1900 following the Boxer uprising and the demand by the Conference of Ambassadors against Greece in the Tellini affair in 1923: see C. Eagleton, op. cit. (footnote [1714] 582 above), pp. 187–188.
[1733] 601 The need to prevent the abuse of satisfaction was stressed by early writers such as J. C. Bluntschli, Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt, 3rd ed. (Nördlingen, Beck, 1878); French translation by M. C. Lardy, Le droit international codifié, 5th rev. ed. (Paris, Félix Alcan, 1895), pp. 268–269.
[1734] 187 ICSID, Case No. ARB/06/2, Decision on Jurisdiction, 27 September 2012, para. 308.
Article 37 419
[International arbitral tribunal (under UNCITRAL Rules)
Valeri Belokon v. Kyrgyz Republic
In Valeri Belokon v. Kyrgyz Republic, the arbitral tribunal noted that, while it had “been directed to the ILC Articles on State Responsibility with regards to questions of attribution (Articles 4 and 8), no reference appears to have been made to this Tribunal’s authority to grant Satisfaction (Article 37) or Assurances (Article 30) of the form requested”.[1735] 137 It therefore held that its authority to grant the requested relief under international law had “not been sufficiently established” and so declined to grant it.[1736] 138
[A/71/80, para. 99]]
International arbitral tribunal (under the ICSID Convention)
Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia
In Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia, the arbitral tribunal, following a detailed examination of the remedy of satisfaction under international law, found that “the remedies outlined by the ILC Articles may apply in investor-state arbitration depending on the nature of the remedy and of the injury which it is meant to repair”.[1737] 209 It further noted that “[t]he fact that some types of satisfaction are not available does not mean that the Tribunal cannot make a declaratory judgment as a means of satisfaction under Article 37 of the ILC Articles, if appropriate”.[1738] 210
[A/71/80, para. 142]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under, part III, “Principal legal and other texts”,[1739] 150 which were relevant with regard to the parties’ claims for relief.[1740] 151
[A/74/83, p. 28]]
[1735] [137 Award, 24 October 2014, para. 275.]
[1736] [138 Ibid., para. 276.]
[1737] 209 See footnote [65] 18 above, para. 555 (see paras. 550–560 for the full discussion).
[1738] 210 Ibid., para. 560.
[1739] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1740] [151 Ibid., para. 9.9.]
420 Article 37
European Court of Human Rights
Moreira Ferreira v. Portugal (No. 2)
In Moreira Ferreira v. Portugal (No. 2), the European Court of Human Rights noted, regarding the concept of restitution in integrum, that “DARSIWA [draft articles on State responsibility for internationally wrongful acts] doctrine on reparation and especially of its Articles 34–37 must be taken into consideration in the interpretation of the [European] Convention [of Human Rights]”.[1741] 213
[A/74/83, p. 37]
[Permanent Court of Arbitration (under UNCITRAL Rules)
Bank Melli Iran and Bank Saderat Iran v. Kingdom of Bahrain
The arbitral tribunal in Bank Melli Iran and Bank Saderat Iran v. Kingdom of Bahrain cited the text of article 31 and recalled that “it is a basic principle of international law that States incur responsibility for their internationally wrongful acts. The corollary to this principle is that the responsible State must repair the damage caused by its internationally wrongful act”.[1742] 157 The tribunal also referred to articles 36[1743] 158 and 37.[1744] 159
[A/77/74, p. 28]]
International arbitral tribunal (under the ICSID Convention)
Pawlowski AG and Project Sever s.r.o. v. Czech Republic
In Pawlowski AG and Project Sever s.r.o. v. Czech Republic, the arbitral tribunal referred to satisfaction as one of the three forms that full reparation could take, explaining that it “may consist in an acknowledgement of the breach, an expression of regret, a formal apology, or another appropriate modality, as established in Article 37”.[1745] 192 Moreover, the tribunal indicated that “[t]he only limitation (identified in Article 37 (3) of the ILC Articles) is that the satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State”.[1746] 193
[A/77/74, p. 32]
[1741] 213 ECHR, Grand Chamber, Application No. 19867/12, Judgment, 11 July 2017, para. 3 and footnote 6.
[1742] [157 PCA, Case No. 2017–25, Final Award, 9 November 2021, para. 738.]
[1743] [158 Ibid., para. 740.]
[1744] [159 Ibid., para. 701.]
[1745] 192 See footnote [402] 52 above, para. 726.
[1746] 193 Ibid., para. 738.
Article 37 421
International Court of Justice
Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda)
In its judgment on reparations in Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), the International Court of Justice referred to article 37 and the commentary thereto in analysing a request for reparations in the form of “the conduct of criminal investigations and prosecutions”,[1747] 194 observing that the forms of satisfaction listed in article 37, paragraph 2, “are not exhaustive. In principle, satisfaction can include measures such as ‘disciplinary or penal action against the individuals whose conduct caused the internationally wrongful act’”.[1748] 195
[A/77/74, p. 32]
[1747] 194 ICJ, (footnote [1410] 160 above), para. 388.
[1748] 195 Ibid., para. 389.
422
Article 38. Interest
1. Interest on any principal sum payable under this chapter shall be payable when necessary in order to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that result.
2. Interest runs from the date when the principal sum should have been paid until the date the obligation to pay is fulfilled.
Commentary
(1) Interest is not an autonomous form of reparation, nor is it a necessary part of compensation in every case. For this reason the term “principal sum” is used in article 38 rather than “compensation”. Nevertheless, an award of interest may be required in some cases in order to provide full reparation for the injury caused by an internationally wrongful act, and it is normally the subject of separate treatment in claims for reparation and in the awards of tribunals.
(2) As a general principle, an injured State is entitled to interest on the principal sum representing its loss, if that sum is quantified as at an earlier date than the date of the settlement of, or judgement or award concerning, the claim and to the extent that it is necessary to ensure full reparation.[1749] 602 Support for a general rule favouring the award of interest as an aspect of full reparation is found in international jurisprudence.[1750] 603 In the S.S. “Wimbledon”, PCIJ awarded simple interest at 6 per cent as from the date of judgment, on the basis that interest was only payable “from the moment when the amount of the sum due has been fixed and the obligation to pay has been established”.[1751] 604
(3) Issues of the award of interest have frequently arisen in other tribunals, both in cases where the underlying claim involved injury to private parties and where the injury was to the State itself.[1752] 605 The experience of the Iran–United States Claims Tribunal is worth noting. In The Islamic Republic of Iran v. The United States of America (Case A–19), the Full Tribunal held that its general jurisdiction to deal with claims included the power to award interest, but it declined to lay down uniform standards for the award of interest on the ground that this fell within the jurisdiction of each Chamber and related “to the exercise . . . of the discretion accorded to them in deciding each particular case”.[1753] 606 On the issue of principle the tribunal said:
[1749] 602 Thus, interest may not be allowed where the loss is assessed in current value terms as at the date of the award. See the Lighthouses arbitration (footnote [702] 182 above), pp. 252–253.
[1750] 603 See, e.g., the awards of interest made in the Illinois Central Railroad Co. (U.S.A.) v. United Mexican States case, UNRIAA, vol. IV (Sales No. 1951.V.1), p. 134 (1926); and the Lucas case, ILR, vol. 30, p. 220 (1966); see also administrative decision No. III of the United States-Germany Mixed Claims Commission, UNRIAA, vol. VII (Sales No. 1956.V.5), p. 66 (1923).
[1751] 604 See footnote [28] 34 above. The Court accepted the French claim for an interest rate of 6 per cent as fair, having regard to “the present financial situation of the world and … the conditions prevailing for public loans”.
[1752] 605 In the M/V “Saiga” case (footnote [1096] 160 above), ITLOS awarded interest at different rates in respect of different categories of loss (para. 173).
[1753] 606 The Islamic Republic of Iran v. The United States of America, Iran–U.S. C.T.R., vol. 16, p. 285, at p. 290 (1987). Aldrich, op. cit. (footnote [1017] 357 above), pp. 475–476, points out that the practice of the three Chambers has not been entirely uniform.
Article 38 423
Claims for interest are part of the compensation sought and do not constitute a separate cause of action requiring their own independent jurisdictional grant. This Tribunal is required by [a]rticle V of the Claims Settlement Declaration to decide claims “on the basis of respect for law”. In doing so, it has regularly treated interest, where sought, as forming an integral part of the “claim” which it has a duty to decide. The Tribunal notes that the Chambers have been consistent in awarding interest as “compensation for damages suffered due to delay in payment”… . Indeed, it is customary for arbitral tribunals to award interest as part of an award for damages, notwithstanding the absence of any express reference to interest in the compromis. Given that the power to award interest is inherent in the Tribunal’s authority to decide claims, the exclusion of such power could only be established by an express provision in the Claims Settlement Declaration. No such provision exists. Consequently, the Tribunal concludes that it is clearly within its power to award interest as compensation for damage suffered.[1754] 607
The tribunal has awarded interest at a different and slightly lower rate in respect of intergovernmental claims.[1755] 608 It has not awarded interest in certain cases, for example where a lump-sum award was considered as reflecting full compensation, or where other special circumstances pertained.[1756] 609
(4) Decision 16 of the Governing Council of the United Nations Compensation Commission deals with the question of interest. It provides:
1. Interest will be awarded from the date the loss occurred until the date of payment, at a rate sufficient to compensate successful claimants for the loss of use of the principal amount of the award.
2. The methods of calculation and of payment of interest will be considered by the Governing Council at the appropriate time.
3. Interest will be paid after the principal amount of awards.[1757] 610
This provision combines a decision in principle in favour of interest where necessary to compensate a claimant with flexibility in terms of the application of that principle. At the same time, interest, while a form of compensation, is regarded as a secondary element, subordinated to the principal amount of the claim.
(5) Awards of interest have also been envisaged by human rights courts and tribunals, even though the compensation practice of these bodies is relatively cautious and the claims are almost always unliquidated. This is done, for example, to protect the value of a damages award payable by instalments over time.[1758] 611
(6) In their more recent practice, national compensation commissions and tribunals have also generally allowed for interest in assessing compensation. However in certain cases of partial lump-sum settlements, claims have been expressly limited to the amount of the
[1754] 607 The Islamic Republic of Iran v. The United States of America (ibid.), pp. 289–290.
[1755] 608 See C. N. Brower and J. D. Brueschke, op. cit. (footnote [1556] 520 above), pp. 626–627, with references to the cases. The rate adopted was 10 per cent, as compared with 12 per cent for commercial claims.
[1756] 609 See the detailed analysis of Chamber Three in McCollough and Company, Inc. v. Ministry of Post, Telegraph and Telephone, Iran–U.S. C.T.R., vol. 11, p. 3, at pp. 26–31 (1986).
[1757] 610 Awards of interest, Decision, 18 December 1992, S/AC.26/1992/16.
[1758] 611 See, e.g., the Velásquez Rodríguez, Compensatory Damages case (footnote [1552] 516 above), para. 57. See also Papamichalopoulos (footnote [1551] 515 above), para. 39, where interest was payable only in respect of the pecuniary damage awarded. See further D. Shelton, op. cit. (footnote [1557] 521 above), pp. 270–272.
424 Article 38
principal loss, on the basis that with a limited fund to be distributed, claims to principal should take priority.[1759] 612 Some national court decisions have also dealt with issues of interest under international law,[1760] 613 although more often questions of interest are dealt with as part of the law of the forum.
(7) Although the trend of international decisions and practice is towards greater availability of interest as an aspect of full reparation, an injured State has no automatic entitlement to the payment of interest. The awarding of interest depends on the circumstances of each case; in particular, on whether an award of interest is necessary in order to ensure full reparation. This approach is compatible with the tradition of various legal systems as well as the practice of international tribunals.
(8) An aspect of the question of interest is the possible award of compound interest. The general view of courts and tribunals has been against the award of compound interest, and this is true even of those tribunals which hold claimants to be normally entitled to compensatory interest. For example, the Iran–United States Claims Tribunal has consistently denied claims for compound interest, including in cases where the claimant suffered losses through compound interest charges on indebtedness associated with the claim. In R.J. Reynolds Tobacco Co. v. The Government of the Islamic Republic of Iran, the tribunal failed to find:
any special reasons for departing from international precedents which normally do not allow the awarding of compound interest. As noted by one authority, “[t]here are few rules within the scope of the subject of damages in international law that are better settled than the one that compound interest is not allowable” … Even though the term “all sums” could be construed to include interest and thereby to allow compound interest, the Tribunal, due to the ambiguity of the language, interprets the clause in the light of the international rule just stated, and thus excludes compound interest. [1761] 614
Consistent with this approach, the tribunal has gone behind contractual provisions appearing to provide for compound interest, in order to prevent the claimant gaining a profit “wholly out of proportion to the possible loss that [it] might have incurred by not having the amounts due at its disposal”.[1762] 615 The preponderance of authority thus continues to support the view expressed by Arbitrator Huber in the British Claims in the Spanish Zone of Morocco case:
the arbitral case law in matters involving compensation of one State for another for damages suffered by the nationals of one within the territory of the other … is unanimous … in disallowing compound interest. In these circumstances, very strong and quite specific arguments would be called for to grant such interest.[1763] 616
[1759] 612 See, e.g., the Foreign Compensation (People’s Republic of China), Order, Statutory Instrument No. 2201 (1987) (London, H. M. Stationery Office), para. 10, giving effect to the settlement Agreement between the United Kingdom and China (footnote [1587] 551 above).
[1760] 613 See, e.g., McKesson Corporation v. The Islamic Republic of Iran, United States District Court for the District of Columbia, 116 F, Supp. 2d 13 (2000).
[1761] 614 Iran–U.S. C.T.R., vol. 7, p. 181, at pp. 191–192 (1984), citing Whiteman, Damages in International Law, vol. III (footnote [1604] 568 above), p. 1997.
[1762] 615 Anaconda-Iran, Inc. v. The Government of the Islamic Republic of Iran, Iran–U.S. C.T.R., vol. 13, p. 199, at p. 235 (1986). See also Aldrich, op. cit. (footnote [1017] 357 above), pp. 477–478.
[1763] 616 British Claims in the Spanish Zone of Morocco (footnote [38] 44 above), p. 650. Cf. the Aminoil arbitration (footnote [1483] 496 above), where the interest awarded was compounded for a period without any reason being given. This accounted for more than half of the total final award (p. 613, para. 178 (5)).
Article 38 425
The same is true for compound interest in respect of State-to-State claims.
(9) Nonetheless, several authors have argued for a reconsideration of this principle, on the ground that “compound interest reasonably incurred by the injured party should be recoverable as an item of damage”.[1764] 617 This view has also been supported by arbitral tribunals in some cases.[1765] 618 But given the present state of international law, it cannot be said that an injured State has any entitlement to compound interest, in the absence of special circumstances which justify some element of compounding as an aspect of full reparation.
(10) The actual calculation of interest on any principal sum payable by way of reparation raises a complex of issues concerning the starting date (date of breach,[1766] 619 date on which payment should have been made, date of claim or demand), the terminal date (date of settlement agreement or award, date of actual payment) as well as the applicable interest rate (rate current in the respondent State, in the applicant State, international lending rates). There is no uniform approach, internationally, to questions of quantification and assessment of amounts of interest payable.[1767] 620 In practice, the circumstances of each case and the conduct of the parties strongly affect the outcome. There is wisdom in the Iran–United States Claims Tribunal’s observation that such matters, if the parties cannot resolve them, must be left “to the exercise … of the discretion accorded to [individual tribunals] in deciding each particular case”.[1768] 621 On the other hand, the present unsettled state of practice makes a general provision on the calculation of interest useful. Accordingly, article 38 indicates that the date from which interest is to be calculated is the date when the principal sum should have been paid. Interest runs from that date until the date the obligation to pay is fulfilled. The interest rate and mode of calculation are to be set so as to achieve the result of providing full reparation for the injury suffered as a result of the internationally wrongful act.
(11) Where a sum for loss of profits is included as part of the compensation for the injury caused by a wrongful act, an award of interest will be inappropriate if the injured State would thereby obtain double recovery. A capital sum cannot be earning interest and notionally
[1764] 617 F. A. Mann, “Compound interest as an item of damage in international law”, Further Studies in International Law (Oxford, Clarendon Press, 1990), p. 377, at p. 383.
[1765] 618 See, e.g., Compañía del Desarrollo de Santa Elena, S.A. v. Republic of Costa Rica, case No. ARB/96/1, ICSID Reports (Cambridge, Grotius, 2002), vol. 5, Final Award, 17 February 2000, paras. 103–105.
[1766] 619 Using the date of the breach as the starting date for calculation of the interest term is problematic as there may be difficulties in determining that date, and many legal systems require a demand for payment by the claimant before interest will run. The date of formal demand was taken as the relevant date in the Russian Indemnity case (footnote [1014] 354 above), p. 442, by analogy from the general position in European legal systems. In any event, failure to make a timely claim for payment is relevant in deciding whether to allow interest.
[1767] 620 See, e.g., J. Y. Gotanda, Supplemental Damages in Private International Law (The Hague, Kluwer, 1998), p. 13. It should be noted that a number of Islamic countries, influenced by the sharia, prohibit payment of interest under their own law or even under their constitution. However, they have developed alternatives to interest in the commercial and international context. For example, payment of interest is prohibited by the Iranian Constitution, articles 43 and 49, but the Guardian Council has held that this injunction does not apply to “foreign governments, institutions, companies and persons, who, according to their own principles of faith, do not consider [interest] as being prohibited” (ibid., pp. 38–40, with references).
[1768] 621 The Islamic Republic of Iran v. The United States of America (Case No. A-19) (footnote [1753] 606 above).
426 Article 38
employed in earning profits at one and the same time. However, interest may be due on the profits which would have been earned but which have been withheld from the original owner.
(12) Article 38 does not deal with post-judgement or moratory interest. It is only concerned with interest that goes to make up the amount that a court or tribunal should award, i.e. compensatory interest. The power of a court or tribunal to award post-judgement interest is a matter of its procedure.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Panel of Commissioners of the United Nations Compensation Commission
S/AC.26/2003/15
In its 2003 report and recommendations concerning part three of the third instalment of “F3” claims,[1769] 206 the Panel of Commissioners was of the view that Governing Council decision 16 on “awards of interest” addressed any claim that in fact arose as a result of the delay of payment of compensation. It noted that the said decision provided that interest would be awarded “from the date the loss occurred until the date of payment”. In a footnote, the panel further observed that this decision was “similar” to article 38, paragraph 2, as finally adopted by the International Law Commission in 2001, which it quoted.[1770] 207
[A/62/62, para. 116]
International arbitral tribunal (under the ICSID Convention)
CMS Gas Transmission Company v. Argentine Republic
In its 2005 award, the arbitral tribunal constituted to hear the CMS Gas Transmission Company v. Argentina case,[1771] 208 in determining the compensation due by Argentina for its breaches of the 1991 bilateral investment treaty between the United States of America and the Argentine Republic, made reference to the principles embodied in articles 34, 35, 36 and 38, as finally adopted by the International Law Commission in 2001. With regard to article 38, it found that “[d]ecisions concerning interest also cover a broad spectrum of alternatives, provided it is strictly related to reparation and not used as a tool to award punitive damages or to achieve other ends”.[1772] 209
[A/62/62, para. 117]
Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia
In Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia, the arbitral tribunal cited article 38, and the commentary thereto, in support of the assertion that “the
[1769] 206 See footnote [1497] 192 above.
[1770] 207 S/AC.26/2003/15, para. 172, footnote 59.
[1771] 208 See footnote [1100] 163 above.
[1772] 209 Ibid., para. 404 and footnote 220.
Article 38 427
awarding of interest depends on the circumstances of each case and, in particular, whether an award of interest is necessary in order to ensure full reparation”.[1773] 188
[A/68/72, para. 130]
SGS Société générale de Surveillance S.A. v. The Republic of Paraguay
The arbitral tribunal in SGS Société Générale de Surveillance S.A. v. The Republic of Paraguay cited article 38, paragraph 2, in support of its assertion that “[t]he virtually universal principle of international law and international arbitration practice in the case of a delayed payment of monetary obligations due is to apply interest as of the date payment became due”.[1774] 189
[A/68/72, para. 131]
Marion Unglaube and Reinhard Unglaube v. Republic of Costa Rica
In Marion Unglaube and Reinhard Unglaube v. Republic of Costa Rica, the arbitral tribunal, citing article 38, paragraph 1, indicated that “[c]ustomary international law, as reflected in the ILC articles, broadly indicates that the interest rate should be set to achieve the result of full reparation”.[1775] 190
[A/68/72, para. 132]
Mr Franck Charles Arif v. Republic of Moldova
In Mr Franck Charles Arif v. Republic of Moldova, the arbitral tribunal noted that:
Article 38 of the International Law Commission’s Articles on State Responsibility confirms that interest will be payable ‘when necessary in order to ensure full reparation’. It also confirms that the general view in international law is in favour of simple and not compound interest, although other commentators suggest the trend in investment arbitration is in favour of compound interest.[1776] 212
[A/71/80, para. 143]
Ioan Micula and others v. Romania
The arbitral tribunal in Ioan Micula and others v. Romania agreed that the “overwhelming trend among investment tribunals is to award compound rather than simple interest”, which was not reflected in the commentary to article 38 relied on by the respondent.[1777] 213 The tribunal further noted that, according to the commentary to article 38, an award of interest is inappropriate where it would result in double recovery, but “interest
[1773] 188 See footnote [288] 36 above, paras. 659 and 660.
[1774] 189 ICSID, SGS Société générale de Surveillance S.A. v. The Republic of Paraguay, Case No. ARB/07/29, Award, 10 February 2012, para. 184.
[1775] 190 See footnote [1650] 185 above, para. 320.
[1776] 212 See footnote [320] 46 above, para. 617.
[1777] 213 See footnote [1188] 133 above, para. 1266.
428 Article 38
may be due on the profits which would have been earned but which have been withheld from the original owner”.[1778] 214
[A/71/80, para. 144]
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
The arbitral tribunal in Hulley Enterprises Limited (Cyprus) v. The Russian Federation referred to article 38 and the commentary thereto, as part of the legal framework relevant for the award of interest.[1779] 215 It went on to note that “the ILC Articles on State Responsibility [do not] provide specific rules regarding how interest should be determined”.[1780] 216
[A/71/80, para. 145]
International arbitral tribunal (under the ICSID Convention)
Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The Argentine Republic
In Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The Argentine Republic, the arbitral tribunal indicated, based on article 38, that “customary international law authorizes the payment of interest on the principal sum due from the time the amount should have been paid until the date when the payment obligation is actually fulfilled”.[1781] 217
[A/71/80, para. 146]
Bernhard von Pezold and others v. Republic of Zimbabwe
In Bernhard von Pezold and others v. Republic of Zimbabwe, the arbitral tribunal relied on article 38 to explain that pre-award interest, as opposed to post-award interest, “is granted in order to ensure full reparation”,[1782] 218 and to note that “it is relevant to take into account the returns the Claimants might have earned on these investments because, had they been immediately compensated for the wrongs they suffered, this is where the Claimants contend they would have invested their wealth”.[1783] 219
[A/71/80, para. 147]
[1778] 214 Ibid., para. 1275 (quoting para. (11) of the commentary to article 38).
[1779] 215 See footnote [19] 7 above, paras. 1652–1653.
[1780] 216 Ibid., para. 1678.
[1781] 217 See footnote [63] 16 above, para. 27, footnote 19.
[1782] 218 See footnote [114] 24 above, para. 943.
[1783] 219 Ibid., para. 947.
Article 38 429
Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia
In Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia, the arbitral tribunal noted that, according to the commentary to article 38,
[w]here a sum for loss of profits is included as part of the compensation for the injury caused by a wrongful act, an award of interest will be inappropriate if the injured State would thereby obtain double recovery,’ because ‘[a] capital sum cannot be earning interest and notionally employed in earning profits at one and the same time.’ However, … ‘interest may be due on the profits which would have been earned but which have been withheld from the original owner.[1784] 220
The tribunal also noted that it was
aware that the Commentary to ILC Article 38, which the Respondent also invokes, states that ‘[t]he general view of courts and tribunals has been against the award of compound interest.’ Yet, a review of arbitral decisions shows that compound interest has been deemed to ‘better reflect … contemporary financial practice’ and to constitute ‘the standard of international law in … expropriation cases.’ The view that compound interest better achieves full reparation has been adopted in a large number of decisions and is shared by this Tribunal.[1785] 221
[A/71/80, para. 148]
Hrvatska Elektroprivreda d.d. v. Republic of Slovenia
In Hrvatska Elektroprivreda d.d. v. Republic of Slovenia, the arbitral tribunal relied on article 38 and the commentary thereto when stating that “[t]his principle of full reparation thus guides the Tribunal in making its finding on interest”.[1786] 222
[A/71/80, para. 149]
Tenaris S.A. and Talta—Trading e Marketing Sociedade Unipessoal Lda v. Bolivarian Republic of Venezuela
In Tenaris S.A. and Talta—Trading e Marketing Sociedade Unipessoal Lda v. Bolivarian Republic of Venezuela, in determining the interest due upon the compensation awarded, the arbitral tribunal referred to article 38 and the commentary thereto.[1787] 223
[A/71/80, para. 150]
[1784] 220 See footnote [65] 18 above, para. 514 (quoting para. (11) of the commentary to article 38).
[1785] 221 Ibid., para. 524 (quoting para. (8) of the commentary to article 38, and the cases of LG&E v. Argentina, ICSID, Case No. ARB/02/1, Award, 25 July 2007, para. 103; Middle East Cement Shipping and Handling Co. S.A. v. Arab Republic of Egypt, ICSID, Case No. ARB/99/6, Award, 12 April 2002, para. 174; Occidental v. Ecuador II, ICSID, Case No. ARB/06/11, Award, 5 October 2012, para. 840; El Paso v. Argentina, ICSID, Case No. ARB/03/15, Award, 31 October 2011, para. 745 (footnote [56] 16 above); Vivendi v. Argentina II, ICSID, Case No. ARB/97/3, Award, 20 August 2007, para. 9.2.6; and Wena v. Egypt, ICSID, Case No. ARB/98/4, Award, 8 December 2000, para. 129 (footnotes omitted)).
[1786] 222 See footnote [1322] 163 above, para. 539 (quoting para. (2) of the commentary to article 38).
[1787] 223 See footnote [342] 68 above, paras. 575–576.
430 Article 38
[Permanent Court of Arbitration (under UNCITRAL Rules)
Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under, part III, “Principal legal and other texts”,[1788] 150 which were relevant with regard to the parties’ claims for relief.[1789] 151
[A/74/83, p. 28]]
International arbitral tribunal (under the ICSID Convention)
Tenaris S.A. and Talta-Trading e Marketing Sociedade Unipessoal LDA v. Bolivarian Republic of Venezuela
In Tenaris S.A. and Talta-Trading e Marketing Sociedade Unipessoal LDA v. Bolivarian Republic of Venezuela, the arbitral tribunal quoted article 38 of the State responsibility articles and the commentary thereto[1790] 214 with regard to the actualization of the loss caused by an expropriation.[1791] 215 The tribunal stated: “While the rationale and rate of interest applied by investment tribunals has varied widely, a consensus appears to have evolved around the principle of the claimant’s opportunity cost.”[1792] 216
[A/74/83, p. 37]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Crystallex International Corporation v. Bolivarian Republic of Venezuela
The arbitral tribunal in Crystallex International Corporation v. Bolivarian Republic of Venezuela referred to article 38 of the State responsibility articles as an “authoritative statement” that “[t]he substantive international legal obligation to pay interest on monies due is well established”,[1793] 217 and relied on the corresponding commentary to discuss the award of simple or compound interest.[1794] 218
[A/74/83, p. 37]
Permanent Court of Arbitration (under UNCITRAL Rules)
Murphy Exploration and Production Company International v. The Republic of Ecuador
The arbitral tribunal in Murphy Exploration and Production Company International v. The Republic of Ecuador referred to article 38 and its commentary thereto, when
[1788] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1789] [151 Ibid., para. 9.9.]
[1790] 214 ICSID, Case No. ARB/11/26, Award, 29 January 2016, para. 575.
[1791] 215 Ibid., para. 576.
[1792] 216 Ibid., para. 577.
[1793] 217 ICSID (Additional Facility), Case No. ARB(AF)/11/2, Award, 4 April 2016, para. 930.
[1794] 218 Ibid., para. 935 and footnote 1319.
Article 38 431
“deem[ing] it appropriate to award interest for damages so as to ensure full reparation to Claimant”.[1795] 219
[A/74/83, p. 37]
International arbitral tribunal (under the ICSID Convention)
Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela
The arbitral tribunal in Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela noted “[a]s to the standard under customary international law, Article 38 of the ILC Draft Articles provides that ‘[t]he interest rate and mode of calculation shall be set so as to achieve [the] result [of ensuring full reparation]’”.[1796] 220
[A/74/83, p. 37]
Burlington Resources Inc. v. Republic of Ecuador
In Burlington Resources Inc. v. Republic of Ecuador, the arbitral tribunal awarded compound interest, thereby diverging from the commentary to article 38 to the State responsibility articles, because “compound interest achieves full reparation better than simple interest”.[1797] 221
[A/74/83, p. 38]
Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic
The arbitral tribunal in Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic, citing article 38, “note[d] that the ILC Articles also address interest as a component of a State’s obligation to make full reparation”[1798] 222 and “ha[d] no hesitation in accepting that the payment of interest forms part of the obligation to make full reparation for a breach of an international obligation”.[1799] 223
[A/74/83, p. 38]
Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan
The arbitral tribunal in Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan “noted that neither the BIT nor the ILC Articles on State Responsibility provide specific rules regarding how interest should be determined”.[1800] 224
[A/74/83, p. 38]
[1795] 219 PCA, Case No. 2012–16, Partial Final Award, 6 May 2016, paras. 511–513.
[1796] 220 ICSID, Case No. ARB/12/13, Decision on Liability and the Principles of Quantum, 30 December 2016, para. 872.
[1797] 221 ICSID, Case No. ARB/08/5, Decision on Reconsideration and Award, 7 February 2017, para. 540.
[1798] 222 See footnote [355] 45 above, para. 1120.
[1799] 223 Ibid., para. 1121.
[1800] 224 ICSID, Case No. ARB/13/1, Award, 22 August 2017, para. 992, also referring to Yukos Universal Ltd. (Isle of Man) v. Russia, PCA, Case No. AA 227, Final Award, 18 July 2014, para. 1678.
432 Article 38
Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of Kazakhstan
The arbitral tribunal in Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of Kazakhstan stated that article 38 of the State responsibility articles confirmed the general premise that “[a]n award of interest compensates the claimant for the loss of the use of its money as a result of the respondent’s wrong. Thus, limiting the reparation for the deprivation of the use of money to a period shorter than the actual time during which the deprivation lasted can only be an exception.”[1801] 225 The tribunal awarded interest upon finding “no reason to depart from the general principles set forth in article 38 of the ILC Articles”.[1802] 226
[A/74/83, p. 38]
International Court of Justice
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)
The International Court of Justice in Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) referred to article 38 and the commentary thereto when it recalled that “in the practice of international courts and tribunals, prejudgment interest may be awarded if full reparation for injury caused by an internationally wrongful act so requires. Nevertheless, interest is not an autonomous form of reparation, nor is it a necessary part of compensation in every case.”[1803] 227
[A/74/83, p. 38]
International Chamber of Commerce
Olin Holdings Limited v. State of Libya
In Olin Holdings Limited v. State of Libya, the tribunal “refer[red] to Article 38.1 of the ILC Articles on State responsibility, formulating the basic rules of international law concerning the responsibility of States for their internationally wrongful acts”.[1804] 228 The tribunal further noted the “[p]arties’ positions in relation to the rate of interest, and considers that the five percent (5%) commercial rate of interest applicable in Cyprus would achieve the result of ensuring full compensation pursuant to the ILC Articles on State Responsibility for the following reasons:
(1) The Tribunal acknowledges that neither the Cyprus-Libya BIT nor international law more generally prompts the Tribunal to award interest based on the commercial rate of interest applicable in Libya;
(2) The Tribunal recognizes that Olin is a Cypriot company and the interest rate applicable in Cyprus represents Olin’s cost of borrowing this same sum from Cypriot banks and that as
[1801] 225 ICSID, Case No. ARB/13/13, Award of the Tribunal, 27 September 2017, paras. 1217–1218.
[1802] 226 Ibid., para. 1221.
[1803] 227 ICJ, Judgment, 2 February 2018, para. 151.
[1804] 228 ICC, Case No. 20355/MCP, Final Award, 25 May 2018, para. 531.
Article 38 433
such, awarding interests at the commercial rate applicable in Cyprus would enable the Claimant to achieve the result of full reparation.[1805] 229
[A/74/83, p. 38]
International arbitral tribunal (under the ICSID Convention)
UP and CD Holding Internationale v. Hungary
In UP and CD Holding Internationale v. Hungary, the arbitral tribunal cited article 38 of the State responsibility articles when stating that “guidance should be taken from the principle of restitutio ad integrum under international law as reflected in Art. 38 of the ILC Articles”.[1806] 230
[A/74/83, p. 39]
[International arbitral tribunal (under UNCITRAL Rules)
Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria
The arbitral tribunal in Zhongshan Fucheng Industrial Investment Co. Ltd. v. Federal Republic of Nigeria took the view that “all organs of the State, including those which have an independent existence in domestic law, are to be treated as part of the State. This is customary international law, and is clear in the light of the Articles”.[1807] 42 The tribunal also cited articles 1, 5, 9, 34, 36 and 38.[1808] 43
[A/77/74, p. 11]]
[International arbitral tribunal (under the ICSID Convention)
(DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar
In (DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar, the arbitral tribunal cited articles 35, 36 and 38, noting that “in investment law, full reparation may take the form of restitution or compensation”, plus interest.[1809] 179
[A/77/74, p. 31]]
International Tribunal for the Law of the Sea
M/V “Norstar” (Panama v. Italy)
In M/V “Norstar” (Panama v. Italy), the International Tribunal for the Law of the Sea cited article 38 and noted that, in its commentary thereto, the Commission had observed
[1805] 229 Ibid., para. 532.
[1806] 230 ICSID, Case No. ARB/13/35, Award, 9 October 2018, para. 596.
[1807] [42 Final Award, 26 March 2021, para. 72.]
[1808] [43 Ibid., paras. 72 and 134–135.]
[1809] [179 See footnote [1029] 108 above, para. 396.]
434 Article 38
that “[t]here is no uniform approach, internationally, to questions of quantification and assessment of amounts of interest payable”.[1810] 196
[A/77/74, p. 33]
International arbitral tribunal (under the ICSID Convention)
Tethyan Cooper Company Pty Limited v. Islamic Republic of Pakistan
In Tethyan Cooper Company Pty Limited v. Islamic Republic of Pakistan, the arbitral tribunal quoted article 38 “as reflective of the standard [of full reparation] under customary international law”.[1811] 197
[A/77/74, p. 33]
Permanent Court of Arbitration (under UNCITRAL Rules)
Stans Energy Corp. and Kutisay Mining LLC v. Kyrgyz Republic (II)
The tribunal in Stans Energy Corp. and Kutisay Mining LLC v. Kyrgyz Republic (II) reasoned that “[t]he principle of full reparation … implies that Stans Energy is entitled to both pre-award interest applied from the valuation date … to the date of the Award, and to post-award interest on the full amount of damages awarded by the Tribunal”, and that “[g]uidance can be taken from the principle of restitutio ad integrum under international law as reflected in Art. 38 of the ILC Articles”.[1812] 198
[A/77/74, p. 33]
International arbitral tribunal (under the ICSID Convention)
OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain
The arbitral tribunal in OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain noted that “[p]re-award interest is consistent with the principle of full compensation and also generally accepted in investment arbitration and this principle is enshrined in Article 38 of the ILC Draft Articles”.[1813] 199 It added that “post-award interest provides an incentive to pay as is recognized in the ILC Draft Articles, Commentary (12) of Article 38”.[1814] 200
[A/77/74, p. 33]
RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à.r.l. v. Kingdom of Spain
The arbitral tribunal in RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à.r.l. v. Kingdom of Spain referred to article 38, noting that “[i]nter[
1810] 196 ITLOS, M/V “Norstar” (Panama v. Italy) (footnote [72] 12 above), p. 122, paras. 457–458.
[1811] 197 ICSID, Case No. ARB/12/1, Award, 12 July 2019, para. 1780.
[1812] 198 PCA, Case No. 2015–32, Award, 20 August 2019, para. 849.
[1813] 199 ICISD, Case No. ARB/15/36 (footnote [1378] 128 above), para. 718.
[1814] 200 Ibid., para. 722.
Article 38 435
ests (whether pre- or post-award) are a necessary consequence of the principle of full reparation. They are a compensation for the damage suffered by the loss of use of the principal sum during the period for which the payment thereof continued to be withheld”.[1815] 201
[A/77/74, p. 33]
(DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar
The arbitral tribunal in (DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar noted that, pursuant to article 38, full reparation may take the form of restitution or compensation, “to which is added the interest on the capital ‘when necessary in order to ensure full reparation’”.[1816] 202
[A/77/74, p. 34]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Strabag SE v. Libya
The arbitral tribunal in Strabag SE v. Libya referred to article 38 when analysing the question as to whether interest over the compensation determined in the award should be simple or compound. The tribunal referred to the commentary to article 38, noting that “compound interest should be awarded only where there are ‘special circumstances which justify some element of compounding as an aspect of full reparation’”.[1817] 203
[A/77/74, p. 34]
International arbitral tribunal (under Annex VII to the 1982 United Nations Convention on the Law of the Sea)
Duzgit Integrity Arbitration (Republic of Malta v. Democratic Republic of Sao Tome and Principe)
In the Duzgit Integrity Arbitration (Republic of Malta v. Democratic Republic of Sao Tome and Principe), the arbitral tribunal noted that
[i]nterest is well established as an element of full reparation where monetary damages are awarded and is recognized as such within the Articles on State Responsibility. Whether an award of interest is required in a particular case, however, and the appropriate rate and mode of calculation depend upon what is required to achieve full reparation.
Since there was no specific rule established in the State responsibility articles or the United Nations Convention on the Law of the Sea, “this determination falls within the Tribunal’s discretion, subject to the overarching goal of achieving full reparation”.[1818] 204
[1815] 201 ICSID, Case No. ARB/13/30, Award, 11 December 2019, paras. 65–66.
[1816] 202 See footnote [1029] 108 above, para. 396.
[1817] 203 See footnote [498] 59 above, para. 962.
[1818] 204 See footnote [883] 98 above, para. 204.
436 Article 38
The arbitral tribunal proceeded to analyse whether interest was due in respect of damages under various heads of claim.[1819] 205
[A/77/74, p. 34]
Permanent Court of Arbitration (under UNCITRAL Rules)
Cairn Energy PLC and Cairn UK Holdings Limited v. Republic of India
The arbitral tribunal in Cairn Energy PLC and Cairn UK Holdings Limited v. Republic of India indicated that “interest is a component of full reparation”, with reference to article 38, paragraph 1.[1820] 206 The tribunal added:
[A]n award of interest must put the Claimants in the position [in which] they would have been had the breach not occurred. An award of interest aims to compensate a claimant for having been deprived of funds that it could have either invested, or used to pay off existing debts or avoid new ones. In today’s economy, this means that the claimant had to forgo earning compound interest or was forced to pay it.[1821] 207
[A/77/74, p. 34]
International arbitral tribunal (under the ICSID Convention)
Abed El Jaouni and Imperial Holding SAL v. Lebanese Republic
The arbitral tribunal in Abed El Jaouni and Imperial Holding SAL v. Lebanese Republic referred to article 38, noting that
interest is an integral component of full compensation under customary international law, as expressed in the ILC Articles. In this regard, the purpose of the award of interest is the same purpose as an award of damages for breach of an international obligation: to place the victim in the economic position it would have been [in] if the international wrong had not been committed.[1822] 208
[A/77/74, p. 34]
Permanent Court of Arbitration (under UNCITRAL Rules)
Olympic Entertainment Group AS v. Ukraine
In Olympic Entertainment Group AS v. Ukraine, the arbitral tribunal cited article 38 and found that the claimant was “entitled to receive pre-award and post-award interest on the compensation awarded to it as to ensure full reparation”.[1823] 209 The tribunal also cited articles 31 and 36.[1824] 210
[A/77/74, p. 35]
[1819] 205 Ibid., paras. 205–216.
[1820] 206 See footnote [1392] 142 above, para. 1955.
[1821] 207 Ibid., para. 1956.
[1822] 208 ICSID, Case No. ARB/15/3, Award, 14 January 2021, para. 356.
[1823] 209 PCA, Case No. 2019–18, Award, 15 April 2021, para. 183.
[1824] 210 Ibid., paras. 140–141.
Article 38 437
International arbitral tribunal (under the ICSID Convention)
Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic
In Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic, the arbitral tribunal cited article 38, explaining that “compensation under the principle of full reparation for internationally unlawful conduct has to bear interest from the Valuation Date until the date of payment. This is what follows from general international law concerning State responsibility”.[1825] 211 In that case, the tribunal took the view that compound interest was necessary in the sense of article 38 “to ensure full reparation of an investor for breach of a treaty that aims at protecting his or her investment”,[1826] 212 as was the payment of interest “on the costs of the proceedings from the date the award is rendered”.[1827] 213
[A/77/74, p. 35]
[1825] 211 See footnote [193] 26 above, para. 587.
[1826] 212 Ibid., para. 592.
[1827] 213 Ibid., para. 610.
438
Article 39. Contribution to the injury
In the determination of reparation, account shall be taken of the contribution to the injury by wilful or negligent action or omission of the injured State or any person or entity in relation to whom reparation is sought.
Commentary
(1) Article 39 deals with the situation where damage has been caused by an internationally wrongful act of a State, which is accordingly responsible for the damage in accordance with articles 1 and 28, but where the injured State, or the individual victim of the breach, has materially contributed to the damage by some wilful or negligent act or omission. Its focus is on situations which in national law systems are referred to as “contributory negligence”, “comparative fault”, “faute de la victime”, etc.[1828] 622
(2) Article 39 recognizes that the conduct of the injured State, or of any person or entity in relation to whom reparation is sought, should be taken into account in assessing the form and extent of reparation. This is consonant with the principle that full reparation is due for the injury—but nothing more—arising in consequence of the internationally wrongful act. It is also consistent with fairness as between the responsible State and the victim of the breach.
(3) In the LaGrand case, ICJ recognized that the conduct of the claimant State could be relevant in determining the form and amount of reparation. There Germany had delayed in asserting that there had been a breach and in instituting proceedings. The Court noted that “Germany may be criticized for the manner in which these proceedings were filed and for their timing”, and stated that it would have taken this factor, among others, into account “had Germany’s submission included a claim for indemnification”.[1829] 623
(4) The relevance of the injured State’s contribution to the damage in determining the appropriate reparation is widely recognized in the literature[1830] 624 and in State practice.[1831] 625 While questions of an injured State’s contribution to the damage arise most frequently in the context of compensation, the principle may also be relevant to other forms of reparation. For example, if a State-owned ship is unlawfully detained by another State and while under detention sustains damage attributable to the negligence of the captain, the responsible State may be required merely to return the ship in its damaged condition.
[1828] 622 See C. von Bar, op. cit. (footnote [960] 315 above), pp. 544–569.
[1829] 623 LaGrand, Judgment (footnote [236] 119 above), at p. 487, para. 57, and p. 508, para. 116. For the relevance of delay in terms of loss of the right to invoke responsibility, see article 45, subparagraph (b), and commentary.
[1830] 624 See, e.g., B. Graefrath, “Responsibility and damages caused: relationship between responsibility and damages” (footnote [1241] 454 above) and B. Bollecker-Stern, op. cit. (footnote [1241] 454 above), pp. 265–300.
[1831] 625 In the Delagoa Bay Railway case (footnote [1597] 561 above), the arbitrators noted that: “[a]11 the circumstances that can be adduced against the concessionaire company and for the Portuguese Government mitigate the latter’s liability and warrant … a reduction in reparation”. In S.S. “Wimbledon” (footnote [28] 34 above), p. 31, a question arose as to whether there had been any contribution to the injury suffered as a result of the ship harbouring at Kiel for some time, following refusal of passage through the Kiel Canal, before taking an alternative course. PCIJ implicitly acknowledged that the captain’s conduct could affect the amount of compensation payable, although it held that the captain had acted reasonably in the circumstances. For other examples, see Gray, op. cit. (footnote [1206] 432 above), p. 23.
Article 39 439
(5) Not every action or omission which contributes to the damage suffered is relevant for this purpose. Rather, article 39 allows to be taken into account only those actions or omissions which can be considered as wilful or negligent, i.e. which manifest a lack of due care on the part of the victim of the breach for his or her own property or rights.[1832] 626 While the notion of a negligent action or omission is not qualified, e.g. by a requirement that the negligence should have reached the level of being “serious” or “gross”, the relevance of any negligence to reparation will depend upon the degree to which it has contributed to the damage as well as the other circumstances of the case.[1833] 627 The phrase “account shall be taken” indicates that the article deals with factors that are capable of affecting the form or reducing the amount of reparation in an appropriate case.
(6) The wilful or negligent action or omission which contributes to the damage may be that of the injured State or “any person or entity in relation to whom reparation is sought”. This phrase is intended to cover not only the situation where a State claims on behalf of one of its nationals in the field of diplomatic protection, but also any other situation in which one State invokes the responsibility of another State in relation to conduct primarily affecting some third party. Under articles 42 and 48, a number of different situations can arise where this may be so. The underlying idea is that the position of the State seeking reparation should not be more favourable, so far as reparation in the interests of another is concerned, than it would be if the person or entity in relation to whom reparation is sought were to bring a claim individually.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Additional Facility Rules)
Gemplus S.A. et al. v. The United Mexican States and Talsud S.A. v. The United Mexican States
In its award, the arbitral tribunal in the Gemplus S.A. et al. v. The United Mexican States and Talsud S.A. v. The United Mexican States cases cited article 39 in its analysis of the concept of “contributory negligence”, and referred to the treatment of the concept in paragraph (5) of the commentary to the article when drawing the conclusion that “[t]he common feature [was] a fault by the claimant which ha[d] caused or contributed to the injury which [was] the subject-matter of the claim; and such a fault [was] synonymous with a form of culpability and not any act or omission falling short of such culpability”.[1834] 191
[A/68/72, para. 133]
[1832] 626 This terminology is drawn from article VI, paragraph 1, of the Convention on International Liability for Damage Caused by Space Objects.
[1833] 627 It is possible to envisage situations where the injury in question is entirely attributable to the conduct of the victim and not at all to that of the “responsible” State. Such situations are covered by the general requirement of proximate cause referred to in article 31, rather than by article 39. On questions of mitigation of damage, see paragraph (11) of the commentary to article 31.
[1834] 191 See footnote [866] 116 above, paras. 11.12 and 11.13.
440 Article 39
International arbitral tribunal (under the ICSID Convention)
Joseph C. Lemire v. Ukraine
In Joseph C. Lemire v. Ukraine, the arbitral tribunal considered article 39 as providing “supplementary guidance” to judges and arbitrators attempting to define and give content to the specific elements required by article 36 of the State responsibility articles.[1835] 192
[A/68/72, para. 134]
International arbitral tribunal (under the ICSID Convention)
El Paso Energy International Company v. The Argentine Republic
In El Paso Energy International Company v. The Argentine Republic, the arbitral tribunal cited article 39 in support of its finding that “[t]here [was] no contribution by the Claimant to a loss it suffered due to its own conduct, in the absence of wilful or negligent action by the Claimant”.[1836] 193
[A/68/72, para. 135]
International arbitral tribunal (under the ICSID Convention)
Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador
In its award in Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, the arbitral tribunal referred to articles 31 and 39 of the State responsibility articles in its analysis of the concept of “contributory negligence”.[1837] 194 The tribunal relied upon article 39, and the commentary thereto, in its analysis of the extent to which the damages owed to the claimants for the wrongful act of the respondent were to be reduced as a consequence of the claimant’s own wrongful conduct.[1838] 195
[A/68/72, para. 136]
International arbitral tribunal (under the ICSID Convention)
Ioan Micula and others v. Romania
In Ioan Micula and others v. Romania, the arbitral tribunal relied on article 39 and the accompanying commentary to support the proposition that “cases of contributory fault by the injured party appear to warrant solely a reduction in the amount of compensation”[1839] 224 and not a release of the responsible State from liability.
[A/71/80, para. 151]
[1835] 192 See footnote [1291] 156 above, para. 156.
[1836] 193 See footnote [56] 16 above, para. 684, and note 648 thereto.
[1837] 194 See footnote [309] 50 above, paras. 665–668.
[1838] 195 See ibid., paras. 665–666 and 673.
[1839] 224 See footnote [1188] 133 above, para. 926, footnote 180.
Article 39 441
Arbitration Institute of the Stockholm Chamber of Commerce
Anatolie Stati, Gabriel Stati, Ascom Group S.A. and Terra Raf Trans Traiding Ltd v. Kazakhstan
In Anatolie Stati, Gabriel Stati, Ascom Group S.A. and Terra Raf Trans Traiding Ltd v. Kazakhstan, the arbitral tribunal agreed with the parties that “Article 39 [of the] ILC Articles requires that the Claimants’ conduct be taken into account in determining compensation”[1840] 225 and that “the burden may shift to the state to prove that a factor attributable to the victim or a third party caused the damage alleged, unless the injury can be shown to be severable in causal terms from that attributed to the State”.[1841] 226
[A/71/80, para. 152]
Permanent Court of Arbitration (under UNCITRAL Rules)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation
In Hulley Enterprises Limited (Cyprus) v. The Russian Federation, the arbitral tribunal noted that it will “assess damages in the light of the foregoing accepted principles of international law”,[1842] 147 including articles 31, 36 and 39. In assessing contributory fault, the tribunal, quoting the commentary to article 31, stated that
[i]t is true that cases can occur where an identifiable element of injury can properly be allocated to one of several concurrently operating causes alone. But unless some part of the injury can be shown to be severable in causal terms from that attributed to the responsible State, the latter is held responsible for all the consequences, not being too remote, of its wrongful conduct.[1843] 148
In relation to the quantification of damage in cases of multiple causes for the same damage, the tribunal also cited the commentary to article 31, emphasizing that
as the commentary makes clear, the mere fact that damage was caused not only by a breach, but also by a concurrent action that is not a breach does not, as such, interrupt the relationship of causation that otherwise exists between the breach and the damage. Rather, it falls to the Respondent to establish that a particular consequence of its actions is severable in causal terms (due to the intervening actions of Claimants or a third party) or too remote to give rise to Respondent’s duty to compensate.[1844] 149
[A/71/80, para. 106]]
In assessing the contributory fault of the claimants, the arbitral tribunal in Hulley Enterprises Limited (Cyprus) v. The Russian Federation referred to article 39 and the commentary thereto, in conjunction with article 31, to
[1840] 225 See footnote [1656] 196 above, para. 1452. See also the reference to article 39 in the text accompanying footnote [1656] 196 above.
[1841] 226 Ibid., para. 1452.
[1842] [147 See footnote [19] 7 above, para. 1593.]
[1843] [148 Ibid., para. 1598 (quoting para. (13) of the commentary to article 31).]
[1844] [149 Ibid., para. 1775.]
442 Article 39
decide, on the basis of the totality of the evidence before it, whether there is a sufficient causal link between any wilful or negligent act or omission of the Claimants (or of Yukos, which they controlled) and the loss Claimants ultimately suffered at the hands of the Russian Federation through the destruction of Yukos.[1845] 227
“Paraphrasing the words of Article 39 of the ILC Articles on State Responsibility and its commentary”, the tribunal had to
determine whether Claimants’ and Yukos’ tax avoidance arrangements in some of the low-tax regions, including their questionable use of the Cyprus-Russia DTA summarized above, contributed to their injury in a material and significant way, or were these minor contributory factors which, based on subsequent events such as the decision of the Russian authorities to destroy Yukos, cannot be considered, legally, as a link in the causative chain.[1846] 228
[A/71/80, para. 153]
[Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador
The arbitral tribunal in Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador referred to articles 28 to 39 of the State responsibility articles under, part III, “Principal legal and other texts”,[1847] 150 which were relevant with regard to the parties’ claims for relief.[1848] 151
[A/74/83, p. 28]]
Cooper Mesa Mining Corporation v. The Republic of Ecuador
In Cooper Mesa Mining Corporation v. The Republic of Ecuador, the arbitral tribunal noted that “[a]s to ‘contributory fault’, the Tribunal refers to Article 39 of the ILC Articles on State Responsibility, entitled ‘Contribution to the Injury’ as being declaratory of international law”.[1849] 231 The tribunal
decide[d] that the Claimant’s injury was caused both by the Respondent’s unlawful expropriation and also by the Claimant’s own contributory negligent acts and omissions and unclean hands. Given that the Tribunal draws no distinction between these different concepts for this case, it prefers to refer only to Article 39 of the ILC Articles.[1850] 232
The tribunal further noted that “Article 39 requires a factual assessment as regards the Claimant’s conduct …”.[1851] 233
[A/74/83, p. 39]
[1845] 227 See footnote [19] 7 above, paras. 1592.
[1846] 228 Ibid., para. 1633.
[1847] [150 PCA, Case No. 2009–23, Second Partial Award on Track II, 30 August 2018, paras. 3.34–3.45.]
[1848] [151 Ibid., para. 9.9.]
[1849] 231 PCA, Case No. 2012–2, Award, 15 March 2016, para. 6.91.
[1850] 232 Ibid., para. 6.97.
[1851] 233 Ibid., para. 6.98.
Article 39 443
International arbitral tribunal (under the ICSID Convention)
Burlington Resources Inc. v. Republic of Ecuador
In Burlington Resources Inc. v. Republic of Ecuador, the arbitral tribunal, citing the text of article 39 and the commentary thereto, noted that “[i]t is undisputed that a claimant’s conduct may justify an exclusion or reduction of damages if it has contributed to the injury”,[1852] 234 but “reject[ed] Ecuador’s argument that Burlington [had] contributed to its own losses”.[1853] 235
[A/74/83, p. 39]
Marco Gavazzi and Stefano Gavazzi v. Romania
The arbitral tribunal in Marco Gavazzi and Stefano Gavazzi v. Romania, agreeing with the discussion of articles 31, 36 and 39 of the State responsibility articles in previous arbitral cases, “determine[d] that the Respondent caused the losses suffered by the Claimants as assessed in this Award, without any reduction for ‘contributory negligence’ or other fault, as alleged by the Respondent”.[1854] 236
[A/74/83, p. 39]
Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of Kazakhstan
The arbitral tribunal in Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of Kazakhstan referring to article 39 of the State responsibility articles, concluded that “the damages awarded to CIOC [the Caratube International Oil Company LLP] in the amount of its sunk investment costs must not be reduced on the basis of contributory fault”.[1855] 237
[A/74/83, p. 40]
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
In Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, the tribunal found that “[t]he Claimant cannot claim compensation from the Respondent to the extent that the Claimant has failed unreasonably to mitigate its loss in accordance with international law. In the Tribunal’s view, the legal test is based upon a reasonable and not an absolute standard, as confirmed by Comment (11) to Article 31 of the ILC Articles and Article 39 of the ILC Articles”.[1856] 238
[A/74/83, p. 40]
[1852] 234 ICSID, Case No. ARB/08/5, Decision on Reconsideration and Award, 7 February 2017, para. 572.
[1853] 235 Ibid., para. 585.
[1854] 236 ICSID, Case No. ARB/12/25, Award, 18 April 2017, para. 280, referring to CME Czech Republic B.V. v. Czech Republic, Partial Award (13 September 2001), para. 583; Anatolie Stati, Gabriel Stati, Ascom Group SA and Terra Raf Trans Traiding Ltd v. Republic of Kazakhstan (footnote [1656] 196 above), paras. 1330–1332; and Gemplus, S.A., SLP, S.A., Gemplus Industrial, S.A. de C.V. and Talsud S.A. v. United Mexican States (ICSID, Cases Nos. ARB(AF)/04/03 & ARB(AF)/04/), Award, 16 June 2009, para. 11.12.
[1855] 237 ICSID, Case No. ARB/13/13, Award, 27 September 2017, para. 1195.
[1856] 238 ICSID, Case No. ARB/14/4, Award, 31 August 2018, paras. 10.124–10.125.
444 Article 39
Perenco Ecuador Limited v. Ecuador
The arbitral tribunal in Perenco Ecuador Limited v. Ecuador referred to article 39 and the commentary thereto, and recalled that the latter noted that the focus of the article was on “situations which in national law systems are referred to as ‘contributory negligence’, ‘comparative fault’, ‘faute de la victime’, etc.”. The tribunal went on to recall that, according to paragraph (5) of the commentary thereto, “article 39 allows to be taken into account only those actions or omissions which can be considered as wilful or negligent, i.e. which manifest a lack of due care on the part of the victim of the breach for his or her own property or rights”.[1857] 214
The arbitral tribunal concluded that “[n]one of the alleged instances of contributory fault said to arise from Perenco’s responses to Ecuador’s contractual demands can be considered to amount to wilful or negligent conduct within the meaning of Article 39”.[1858] 215 It cautioned that “it is wrong to equate a party’s zealous protection of its legal rights and interests with wilful conduct or contributory negligence within the meaning of the ILC Articles”,[1859] 216 referring to actions taken by the investor pursuant to provisional measures obtained in the arbitral proceeding.[1860] 217
[A/77/74, p. 35]
(DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar
In (DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar, the arbitral tribunal cited article 39 and the commentary thereto, noting that in the determination of reparation in investment cases, account should be taken of “the victim’s contribution to the damage”.[1861] 218 The tribunal explained that “according to the jurisprudence, a party contributes to the damage that it incurs if it engages in wilful or negligent conduct that demonstrates a want of due diligence on the part of the injured party in respect of its property or its rights and there is a causal link between the conduct and the injury”.[1862] 219
[A/77/74, p. 35]
STEAG GmbH v. Kingdom of Spain
In STEAG GmbH v. Kingdom of Spain, the arbitral tribunal observed that, pursuant to article 39, “the conduct of the party that claims to have suffered damage and, in particular, its contribution to the damage or injury, is a widely recognized element for analysing and quantifying the compensable injury”.[1863] 220
[A/77/74, p. 36]
[1857] 214 See footnote [1379] 129 above, para. 344.
[1858] 215 Ibid., para. 352.
[1859] 216 Ibid., para. 359.
[1860] 217 Ibid., para. 360.
[1861] 218 See footnote [1029] 108 above, para. 396; see also paras. 460–461.
[1862] 219 Ibid., para. 461.
[1863] 220 See footnote [1390] 140 above, para. 760.
Article 39 445
Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic
In Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic, the arbitral tribunal’s majority failed “to see any indications for Claimants’ contribution to injury pursuant to Article 39 of the ILC Articles, either in the form of contributory fault to Respondent’s internationally wrongful conduct …, or as a violation of a duty to mitigate damages after the revocation has taken place”.[1864] 221
[A/77/74, p. 36]
[1864] 221 See footnote [193] 26 above, para. 444 (footnote 521).
446
Chapter III
SERIOUS BREACHES OF OBLIGATIONS UNDER PEREMPTORY NORMS OF GENERAL INTERNATIONAL LAW
Commentary
(1) Chapter III of Part Two is entitled “Serious breaches of obligations under peremptory norms of general international law”. It sets out certain consequences of specific types of breaches of international law, identified by reference to two criteria: first, they involve breaches of obligations under peremptory norms of general international law; and secondly, the breaches concerned are in themselves serious, having regard to their scale or character. Chapter III contains two articles, the first defining its scope of application (art. 40), the second spelling out the legal consequences entailed by the breaches coming within the scope of the chapter (art. 41).
(2) Whether a qualitative distinction should be recognized between different breaches of international law has been the subject of a major debate.[1865] 628 The issue was underscored by ICJ in the Barcelona Traction case, when it said that:
an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.[1866] 629
The Court was there concerned to contrast the position of an injured State in the context of diplomatic protection with the position of all States in respect of the breach of an obligation towards the international community as a whole. Although no such obligation was at stake in that case, the Court’s statement clearly indicates that for the purposes of State responsibility certain obligations are owed to the international community as a whole, and that by reason of “the importance of the rights involved” all States have a legal interest in their protection.
(3) On a number of subsequent occasions the Court has taken the opportunity to affirm the notion of obligations to the international community as a whole, although it has been cautious in applying it. In the East Timor case, the Court said that “Portugal’s assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable”.[1867] 630 At the preliminary objections stage of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case, it stated that “the rights and obligations enshrined
[1865] 628 For full bibliographies, see M. Spinedi, “Crimes of State: bibliography”, International Crimes of State, J. H. H. Weiler, A. Cassese and M. Spinedi, eds. (Berlin, De Gruyter, 1989), pp. 339–353; and N. H. B. Jørgensen, The Responsibility of States for International Crimes (Oxford University Press, 2000) pp. 299–314.
[1866] 629 Barcelona Traction (footnote [46] 52 above), p. 32, para. 33. See M. Ragazzi, The Concept of International Obligations Erga Omnes (Oxford, Clarendon Press, 1997).
[1867] 630 See footnote [48] 54 above.
Part
Two, Chapter III 447
by the [Genocide] Convention are rights and obligations erga omnes”:[1868] 631 this finding contributed to its conclusion that its temporal jurisdiction over the claim was not limited to the time after which the parties became bound by the Convention.
(4) A closely related development is the recognition of the concept of peremptory norms of international law in articles 53 and 64 of the 1969 Vienna Convention. These provisions recognize the existence of substantive norms of a fundamental character, such that no derogation from them is permitted even by treaty.[1869] 632
(5) From the first it was recognized that these developments had implications for the secondary rules of State responsibility which would need to be reflected in some way in the articles. Initially, it was thought this could be done by reference to a category of “international crimes of State”, which would be contrasted with all other cases of internationally wrongful acts (“international delicts”).[1870] 633 There has been, however, no development of penal consequences for States of breaches of these fundamental norms. For example, the award of punitive damages is not recognized in international law even in relation to serious breaches of obligations arising under peremptory norms. In accordance with article 34, the function of damages is essentially compensatory.[1871] 634 Overall, it remains the case, as the International Military Tribunal said in 1946, that “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”[1872] 635
(6) In line with this approach, despite the trial and conviction by the Nuremberg and Tokyo Military Tribunals of individual government officials for criminal acts committed in their official capacity, neither Germany nor Japan were treated as “criminal” by the instruments creating these tribunals.[1873] 636 As to more recent international practice, a similar approach underlies the establishment of the ad hoc tribunals for Yugoslavia and Rwanda by the Security Council. Both tribunals are concerned only with the prosecution of individuals.[1874] 637 In its decision relating to a subpoena duces tecum in the Blaskić case, the Appeals Chamber of the International Tribunal for the Former Yugoslavia stated that “[u]nder present international law it is clear that States, by definition, cannot be the subject of criminal sanctions akin to those provided for in national criminal systems.”[1875] 638
[1868] 631 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections (footnote [48] 54 above), p. 616, para. 31.
[1869] 632 See article 26 and commentary.
[1870] 633 See Yearbook … 1976, vol. II (Part Two), pp. 95–122, especially paras. (6)–(34). See also paragraph (5) of the commentary to article 12.
[1871] 634 See paragraph (4) of the commentary to article 36.
[1872] 635 International Military Tribunal (Nuremberg), judgement of 1 October 1946, reprinted in AJIL (footnote [969] 321 above), p. 221.
[1873] 636 This despite the fact that the London Charter of 1945 specifically provided for the condemnation of a “group or organization” as “criminal”; see Charter of the International Military Tribunal, Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, annex, United Nations, Treaty Series, vol. 82, No. 251, p. 279, arts. 9 and 10.
[1874] 637 See, respectively, articles 1 and 6 of the statute of the International Tribunal for the Former Yugoslavia; and articles 1 and 7 of the statute of the International Tribunal for Rwanda (footnote [862] 257 above).
[1875] 638 Prosecutor v. Blaskić, International Tribunal for the Former Yugoslavia, Case IT-95–14-AR 108 bis, ILR, vol. 110, p. 688, at p. 698, para. 25 (1997). Cf. Application of the Convention on the Preven448
Part
Two, Chapter III
The Rome Statute of the International Criminal Court likewise establishes jurisdiction over the “most serious crimes of concern to the international community as a whole”(preamble), but limits this jurisdiction to “natural persons” (art. 25, para. 1). The same article specifies that no provision of the Statute “relating to individual criminal responsibility shall affect the responsibility of States under international law” (para. 4).[1876] 639
(7) Accordingly the present articles do not recognize the existence of any distinction between State “crimes” and “delicts” for the purposes of Part One. On the other hand, it is necessary for the articles to reflect that there are certain consequences flowing from the basic concepts of peremptory norms of general international law and obligations to the international community as a whole within the field of State responsibility. Whether or not peremptory norms of general international law and obligations to the international community as a whole are aspects of a single basic idea, there is at the very least substantial overlap between them. The examples which ICJ has given of obligations towards the international community as a whole[1877] 640 all concern obligations which, it is generally accepted, arise under peremptory norms of general international law. Likewise the examples of peremptory norms given by the Commission in its commentary to what became article 53 of the 1969 Vienna Convention[1878] 641 involve obligations to the international community as a whole. But there is at least a difference in emphasis. While peremptory norms of general international law focus on the scope and priority to be given to a certain number of fundamental obligations, the focus of obligations to the international community as a whole is essentially on the legal interest of all States in compliance—i.e. in terms of the present articles, in being entitled to invoke the responsibility of any State in breach. Consistently with the difference in their focus, it is appropriate to reflect the consequences of the two concepts in two distinct ways. First, serious breaches of obligations arising under peremptory norms of general international law can attract additional consequences, not only for the responsible State but for all other States. Secondly, all States are entitled to invoke responsibility for breaches of obligations to the international community as a whole. The first of these propositions is the concern of the present chapter; the second is dealt with in article 48.tion and Punishment of the Crime of Genocide, Preliminary Objections (footnote [48] 54 above), in which neither of the parties treated the proceedings as being criminal in character. See also paragraph (6) of the commentary to article 12.
[1876] 639 See also article 10: “Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute”.
[1877] 640 According to ICJ, obligations erga omnes “derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”: Barcelona Traction (footnote [46] 52 above), at p. 32, para. 34. See also East Timor (footnote [48] 54 above); Legality of the Threat or Use of Nuclear Weapons (ibid.); and Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections (ibid.).
[1878] 641 The Commission gave the following examples of treaties which would violate the article due to conflict with a peremptory norm of general international law, or a rule of jus cogens: “(a) a treaty contemplating an unlawful use of force contrary to the principles of the Charter, (b) a treaty contemplating the performance of any other act criminal under international law, and (c) a treaty contemplating or conniving at the commission of such acts, such as trade in slaves, piracy or genocide, in the suppression of which every State is called upon to co-operate … treaties violating human rights, the equality of States or the principle of self-determination were mentioned as other possible examples”, Yearbook … 1966, vol. II, p. 248.
Part
Two, Chapter III 449
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Caribbean Court of Justice
Trinidad Cement Limited and TCL Guyana Incorporated v. The State of the Co-Operative Republic of Guyana
In the Trinidad Cement Limited and TCL Guyana Incorporated v. Guyana case, the Caribbean Court of Justice, in considering the question of the acceptance of exemplary (punitive) damages in international law, quoted the following passage from the general commentary to chapter III:
[T]he award of punitive damages is not recognized in international law even in relation to serious breaches of obligations arising under peremptory norms.[1879] 65
The Court went on to hold that it was “… not persuaded that exemplary damages may be awarded by it and in this case shall not award any such damages”.[1880] 66
[A/65/76, para. 44]
[1879] 65 See footnote [1452] 52 above, para. 38, quoting from paragraph (5) of the introductory commentary to Part Two, Chapter III.
[1880] 66 Ibid., para. 40.
450
Article 40. Application of this chapter
1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law.
2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.
Commentary
(1) Article 40 serves to define the scope of the breaches covered by the chapter. It establishes two criteria in order to distinguish “serious breaches of obligations under peremptory norms of general international law” from other types of breaches. The first relates to the character of the obligation breached, which must derive from a peremptory norm of general international law. The second qualifies the intensity of the breach, which must have been serious in nature. Chapter III only applies to those violations of international law that fulfil both criteria.
(2) The first criterion relates to the character of the obligation breached. In order to give rise to the application of this chapter, a breach must concern an obligation arising under a peremptory norm of general international law. In accordance with article 53 of the 1969 Vienna Convention, a peremptory norm of general international law is one which is:
accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
The concept of peremptory norms of general international law is recognized in international practice, in the jurisprudence of international and national courts and tribunals and in legal doctrine.[1881] 642
(3) It is not appropriate to set out examples of the peremptory norms referred to in the text of article 40 itself, any more than it was in the text of article 53 of the 1969 Vienna Convention. The obligations referred to in article 40 arise from those substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values.
(4) Among these prohibitions, it is generally agreed that the prohibition of aggression is to be regarded as peremptory. This is supported, for example, by the Commission’s commentary to what was to become article 53,[1882] 643 uncontradicted statements by Governments in the course of the Vienna Conference on the Law of Treaties,[1883] 644 the submissions of both parties in the Military and Paramilitary Activities in and against Nicaragua case and
[1881] 642 For further discussion of the requirements for identification of a norm as peremptory, see paragraph (5) of the commentary to article 26, with selected references to the case law and literature.
[1882] 643 Yearbook … 1966, vol. II, p. 247–249.
[1883] 644 In the course of the conference, a number of Governments characterized as peremptory the prohibitions against aggression and the illegal use of force: see Official Records of the United Nations Conference on the Law of Treaties, First Session, Vienna, 26 March to 24 May 1968, summary records of the plenary meeting and of the meetings of the Committee of the Whole (United Nations publication, Sales No. E.68.V.7), 52nd meeting, paras. 3, 31 and 43; 53rd meeting, paras. 4, 9, 15, 16, 35, 48, 59 and 69; 54th meeting, paras. 9, 41,46 and 55; 55th meeting, paras. 31 and 42; and 56th meeting, paras. 6, 20, 29 and 51.
Article 40 451
the Court’s own position in that case.[1884] 645 There also seems to be widespread agreement with other examples listed in the Commission’s commentary to article 53: viz. the prohibitions against slavery and the slave trade, genocide, and racial discrimination and apartheid. These practices have been prohibited in widely ratified international treaties and conventions admitting of no exception. There was general agreement among Governments as to the peremptory character of these prohibitions at the Vienna Conference. As to the peremptory character of the prohibition against genocide, this is supported by a number of decisions by national and international courts.[1885] 646
(5) Although not specifically listed in the Commission’s commentary to article 53 of the 1969 Vienna Convention, the peremptory character of certain other norms seems also to be generally accepted. This applies to the prohibition against torture as defined in article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The peremptory character of this prohibition has been confirmed by decisions of international and national bodies.[1886] 647 In the light of the description by ICJ of the basic rules of international humanitarian law applicable in armed conflict as “intransgressible” in character, it would also seem justified to treat these as peremptory.[1887] 648 Finally, the obligation to respect the right of self-determination deserves to be mentioned. As the Court noted in the East Timor case, “[t]he principle of self-determination … is one of the essential principles of contemporary international law”, which gives rise to an obligation to the international community as a whole to permit and respect its exercise.[1888] 649
(6) It should be stressed that the examples given above may not be exhaustive. In addition, article 64 of the 1969 Vienna Convention contemplates that new peremptory norms of general international law may come into existence through the processes of acceptance and recognition by the international community of States as a whole, as referred to in article 53. The examples given here are thus without prejudice to existing or developing rules of international law which fulfil the criteria for peremptory norms under article 53.
(7) Apart from its limited scope in terms of the comparatively small number of norms which qualify as peremptory, article 40 applies a further limitation for the purposes of the chapter, viz. that the breach should itself have been “serious”. A “serious” breach is defined in paragraph 2 as one which involves “a gross or systematic failure by the responsible State to fulfil the obligation” in question. The word “serious” signifies that a certain
[1884] 645 Military and Paramilitary Activities in and against Nicaragua (footnote [30] 36 above), at pp. 100–101, para. 190; see also the separate opinion of magistrate Nagendra Singh (president), p. 153.
[1885] 646 See, for example, ICJ in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures (footnote [1151] 412 above), pp. 439–440; Counter-Claims (footnote [1152] 413 above), p. 243; and the District Court of Jerusalem in the Attorney-General of the Government of Israel v. Adolf Eichmann case, ILR, vol. 36, p. 5 (1961).
[1886] 647 Cf. the United States Court of Appeals, Ninth Circuit, in Siderman de Blake and Others v. The Republic of Argentina and Others, ILR, vol. 103, p. 455, at p. 471 (1992); the United Kingdom Court of Appeal in Al Adsani v. Government of Kuwait and Others, ILR, vol. 107, p. 536, at pp. 540–541 (1996); and the United Kingdom House of Lords in Pinochet (footnote [1154] 415 above), pp. 841 and 881. Cf. the United States Court of Appeals, Second Circuit, in Filartiga v. Pena-Irala , ILR, vol. 77, p. 169, at pp. 177–179 (1980).
[1887] 648 Legality of the Threat or Use of Nuclear Weapons (footnote [48] 54 above), p. 257, para. 79.
[1888] 649 East Timor (ibid.). See Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV), annex, fifth principle.
452 Article 40
order of magnitude of violation is necessary in order not to trivialize the breach and it is not intended to suggest that any violation of these obligations is not serious or is somehow excusable. But relatively less serious cases of breach of peremptory norms can be envisaged, and it is necessary to limit the scope of this chapter to the more serious or systematic breaches. Some such limitation is supported by State practice. For example, when reacting against breaches of international law, States have often stressed their systematic, gross or egregious nature. Similarly, international complaint procedures, for example in the field of human rights, attach different consequences to systematic breaches, e.g. in terms of the non-applicability of the rule of exhaustion of local remedies.[1889] 650
(8) To be regarded as systematic, a violation would have to be carried out in an organized and deliberate way. In contrast, the term “gross” refers to the intensity of the violation or its effects; it denotes violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule. The terms are not of course mutually exclusive; serious breaches will usually be both systematic and gross. Factors which may establish the seriousness of a violation would include the intent to violate the norm; the scope and number of individual violations; and the gravity of their consequences for the victims. It must also be borne in mind that some of the peremptory norms in question, most notably the prohibitions of aggression and genocide, by their very nature require an intentional violation on a large scale.[1890] 651
(9) Article 40 does not lay down any procedure for determining whether or not a serious breach has been committed. It is not the function of the articles to establish new institutional procedures for dealing with individual cases, whether they arise under chapter III of Part Two or otherwise. Moreover, the serious breaches dealt with in this chapter are likely to be addressed by the competent international organizations, including the Security Council and the General Assembly. In the case of aggression, the Security Council is given a specific role by the Charter of the United Nations.
[1889] 650 See the Ireland v. the United Kingdom case (footnote [800] 236 above), para. 159; cf., e.g., the procedure established under Economic and Social Council resolution 1503 (XLVIII), which requires a “consistent pattern of gross and reliably attested violations of human rights”.
[1890] 651 At its twenty-second session, the Commission proposed the following examples as cases denominated as “international crimes”:
“(a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;
“(b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;
“(c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;
“(d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.”
Yearbook … 1976, vol. II (Part Two), pp. 95–96.
Article 40 453
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
European Court of Human Rights
Güzelyurtlu And Others v. Cyprus and Turkey
In the case of Güzelyurtlu And Others v. Cyprus and Turkey, the European Court of Human Rights referred to articles 40 and 41, as well as the commentary to article 41, as relevant international law.[1891] 239
[A/74/83, p. 40]
Inter-American Court of Human Rights
The Obligations in Matters of Human Rights of a State that has Denounced the American Convention on Human Rights and the Charter of the Organization of American States (Interpretation and Scope of articles 1, 2, 27, 29, 30, 31, 32, 33 to 65 and 78 of the American Convention on Human Rights and 3(l), 17, 45, 53, 106 and 143 of the Charter of the Organization of American States)
In an advisory opinion concerning the effects of a State’s denunciation of the American Convention on Human Rights, the Inter-American Court of Human Rights, in an analysis of jus cogens norms, cited articles 40, 41 and 48 and the commentary to article 40, indicating that the obligations contained in article 40 “arise from those substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values”.[1892] 222
[A/77/74, p. 36]
[International arbitral tribunal (under Annex VII to the 1982 United Nations Convention on the Law of the Sea)
Dispute Concerning Costal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russian Federation)
In its award concerning preliminary objections, the arbitral tribunal in Dispute Concerning Costal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russian Federation) indicated that article 41 “imposes upon all States an obligation not to recognize as lawful a situation created by a gross or systematic failure by the responsible State to fulfil an obligation arising under a peremptory norm of general international law”.[1893] 223 Nevertheless, the arbitral tribunal concluded that it did not consider “that the [General Assembly] resolutions to which Ukraine refers can be read to go as far as prohibiting it from recognizing the existence of a dispute over the territorial status of Crimea”.[1894] 224 The tribunal also cited article 40.[1895] 225
[A/77/74, p. 36]]
[1891] 239 ECHR, Grand Chamber, Application No. 36925/07, Judgment, 29 January 2019, paras. 157–158.
[1892] 222 IACHR, Series A, No. 26, Advisory Opinion No. OC-26/20, 9 November 2020, paras. 103–104.
[1893] [223 PCA, Case No. 2017–06, Award (Preliminary Objections), 21 February 2020, para. 170.]
[1894] [224 Ibid., para. 177.]
[1895] [225 Ibid., para. 169.]
454
Article 41. Particular consequences of a serious breach of an obligation
under this chapter
1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law.
Commentary
(1) Article 41 sets out the particular consequences of breaches of the kind and gravity referred to in article 40. It consists of three paragraphs. The first two prescribe special legal obligations of States faced with the commission of “serious breaches” in the sense of article 40, the third takes the form of a saving clause.
(2) Pursuant to paragraph 1 of article 41, States are under a positive duty to cooperate in order to bring to an end serious breaches in the sense of article 40. Because of the diversity of circumstances which could possibly be involved, the provision does not prescribe in detail what form this cooperation should take. Cooperation could be organized in the framework of a competent international organization, in particular the United Nations. However, paragraph 1 also envisages the possibility of non-institutionalized cooperation.
(3) Neither does paragraph 1 prescribe what measures States should take in order to bring to an end serious breaches in the sense of article 40. Such cooperation must be through lawful means, the choice of which will depend on the circumstances of the given situation. It is, however, made clear that the obligation to cooperate applies to States whether or not they are individually affected by the serious breach. What is called for in the face of serious breaches is a joint and coordinated effort by all States to counteract the effects of these breaches. It may be open to question whether general international law at present prescribes a positive duty of cooperation, and paragraph 1 in that respect may reflect the progressive development of international law. But in fact such cooperation, especially in the framework of international organizations, is carried out already in response to the gravest breaches of international law and it is often the only way of providing an effective remedy. Paragraph 1 seeks to strengthen existing mechanisms of cooperation, on the basis that all States are called upon to make an appropriate response to the serious breaches referred to in article 40.
(4) Pursuant to paragraph 2 of article 41, States are under a duty of abstention, which comprises two obligations, first, not to recognize as lawful situations created by serious breaches in the sense of article 40, and, secondly, not to render aid or assistance in maintaining that situation.
(5) The first of these two obligations refers to the obligation of collective non-recognition by the international community as a whole of the legality of situations resulting directly from serious breaches in the sense of article 40.[1896] 652 The obligation applies to “situations” created
[1896] 652 This has been described as “an essential legal weapon in the fight against grave breaches of the basic rules of international law” (C. Tomuschat, “International crimes by States: an endangered
Article 41 455
by these breaches, such as, for example, attempted acquisition of sovereignty over territory through the denial of the right of self-determination of peoples. It not only refers to the formal recognition of these situations, but also prohibits acts which would imply such recognition.
(6) The existence of an obligation of non-recognition in response to serious breaches of obligations arising under peremptory norms already finds support in international practice and in decisions of ICJ. The principle that territorial acquisitions brought about by the use of force are not valid and must not be recognized found a clear expression during the Manchurian crisis of 1931–1932, when the Secretary of State, Henry Stimson, declared that the United States of America—joined by a large majority of members of the League of Nations—would not:
admit the legality of any situation de facto nor … recognize any treaty or agreement entered into between those Governments, or agents thereof, which may impair the … sovereignty, the independence or the territorial and administrative integrity of the Republic of China, … [nor] recognize any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928.[1897] 653
The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations affirms this principle by stating unequivocally that States shall not recognize as legal any acquisition of territory brought about by the use of force.[1898] 654 As ICJ held in Military and Paramilitary Activities in and against Nicaragua, the unanimous consent of States to this declaration “may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves.”[1899] 655
(7) An example of the practice of non-recognition of acts in breach of peremptory norms is provided by the reaction of the Security Council to the Iraqi invasion of Kuwait in 1990. Following the Iraqi declaration of a “comprehensive and eternal merger” with Kuwait, the Security Council in resolution 662 (1990) of 9 August 1990, decided that the annexation had “no legal validity, and is considered null and void”, and called upon all States, international organizations and specialized agencies not to recognize that annexation and to refrain from any action or dealing that might be interpreted as a recognition of it, whether direct or indirect. In fact, no State recognized the legality of the purported annexation, the effects of which were subsequently reversed.
(8) As regards the denial by a State of the right of self-determination of peoples, the advisory opinion of ICJ in the Namibia case is similarly clear in calling for a non-recognition of the situation.[1900] 656 The same obligations are reflected in the resolutions of the Security species?”, International Law: Theory and Practice—Essays in Honour of Eric Suy, K. Wellens, ed. (The Hague, Martinus Nijhoff, 1998), p. 253, at p. 259).
[1897] 653 Secretary of State’s note to the Chinese and Japanese Governments, in Hackworth, Digest of International Law (Washington, D. C., United States Government Printing Office, 1940), vol. I, p. 334; endorsed by Assembly resolutions of 11 March 1932, League of Nations Official Journal, March 1932, Special Supplement No. 101, p. 87. For a review of earlier practice relating to collective non-recognition, see J. Dugard, Recognition and the United Nations (Cambridge, Grotius, 1987), pp. 24–27.
[1898] 654 General Assembly resolution 2625 (XXV), annex, first principle.
[1899] 655 Military and Paramilitary Activities in and against Nicaragua (footnote [30] 36 above), at p. 100, para. 188.
[1900] 656 Namibia case (footnote [690] 176 above), where the Court held that “the termination of the Mandate and the declaration of the illegality of South Africa’s presence in Namibia are opposable to all
456 Article 41
Council and General Assembly concerning the situation in Rhodesia[1901] 657 and the Bantustans in South Africa.[1902] 658 These examples reflect the principle that where a serious breach in the sense of article 40 has resulted in a situation that might otherwise call for recognition, this has nonetheless to be withheld. Collective non-recognition would seem to be a prerequisite for any concerted community response against such breaches and marks the minimum necessary response by States to the serious breaches referred to in article 40.
(9) Under article 41, paragraph 2, no State shall recognize the situation created by the serious breach as lawful. This obligation applies to all States, including the responsible State. There have been cases where the responsible State has sought to consolidate the situation it has created by its own “recognition”. Evidently, the responsible State is under an obligation not to recognize or sustain the unlawful situation arising from the breach. Similar considerations apply even to the injured State: since the breach by definition concerns the international community as a whole, waiver or recognition induced from the injured State by the responsible State cannot preclude the international community interest in ensuring a just and appropriate settlement. These conclusions are consistent with article 30 on cessation and are reinforced by the peremptory character of the norms in question.[1903] 659
(10) The consequences of the obligation of non-recognition are, however, not unqualified. In the Namibia advisory opinion the Court, despite holding that the illegality of the situation was opposable erga omnes and could not be recognized as lawful even by States not members of the United Nations, said that:
the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international cooperation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.[1904] 660
Both the principle of non-recognition and this qualification to it have been applied, for example, by the European Court of Human Rights.[1905] 661
(11) The second obligation contained in paragraph 2 prohibits States from rendering aid or assistance in maintaining the situation created by a serious breach in the sense of article 40. This goes beyond the provisions dealing with aid or assistance in the commission of an internationally wrongful act, which are covered by article 16. It deals with conduct States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law” (p. 56, para. 126).
[1901] 657 Cf. Security Council resolution 216 (1965) of 12 November 1965.
[1902] 658 See, e.g., General Assembly resolution 31/6 A of 26 October 1976, endorsed by the Security Council in its resolution 402 (1976) of 22 December 1976; Assembly resolutions 32/105 N of 14 December 1977 and 34/93 G of 12 December 1979; see also the statements of 21 September 1979 and 15 December 1981 issued by the respective presidents of the Security Council in reaction to the “creation” of Venda and Ciskei (S/13549 and S/14794).
[1903] 659 See also paragraph (7) of the commentary to article 20 and paragraph (4) of the commentary to article 45.
[1904] 660 Namibia case (footnote [690] 176 above), p. 56, para. 125.
[1905] 661 Loizidou, Merits (footnote [573] 160 above), p. 2216; Cyprus v. Turkey (footnote [811] 247 above), paras. 89–98.
Article 41 457
“after the fact” which assists the responsible State in maintaining a situation “opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law”.[1906] 662 It extends beyond the commission of the serious breach itself to the maintenance of the situation created by that breach, and it applies whether or not the breach itself is a continuing one. As to the elements of “aid or assistance”, article 41 is to be read in connection with article 16. In particular, the concept of aid or assistance in article 16 presupposes that the State has “knowledge of the circumstances of the internationally wrongful act”. There is no need to mention such a requirement in article 41, paragraph 2, as it is hardly conceivable that a State would not have notice of the commission of a serious breach by another State.
(12) In some respects, the prohibition contained in paragraph 2 may be seen as a logical extension of the duty of non-recognition. However, it has a separate scope of application insofar as actions are concerned which would not imply recognition of the situation created by serious breaches in the sense of article 40. This separate existence is confirmed, for example, in the resolutions of the Security Council prohibiting any aid or assistance in maintaining the illegal apartheid regime in South Africa or Portuguese colonial rule.[1907] 663 Just as in the case of the duty of non-recognition, these resolutions would seem to express a general idea applicable to all situations created by serious breaches in the sense of article 40.
(13) Pursuant to paragraph 3, article 41 is without prejudice to the other consequences elaborated in Part Two and to possible further consequences that a serious breach in the sense of article 40 may entail. The purpose of this paragraph is twofold. First, it makes it clear that a serious breach in the sense of article 40 entails the legal consequences stipulated for all breaches in chapters I and II of Part Two. Consequently, a serious breach in the sense of article 40 gives rise to an obligation, on behalf of the responsible State, to cease the wrongful act, to continue performance and, if appropriate, to give guarantees and assurances of non-repetition. By the same token, it entails a duty to make reparation in conformity with the rules set out in chapter II of this Part. The incidence of these obligations will no doubt be affected by the gravity of the breach in question, but this is allowed for in the actual language of the relevant articles.
(14) Secondly, paragraph 3 allows for such further consequences of a serious breach as may be provided for by international law. This may be done by the individual primary rule, as in the case of the prohibition of aggression. Paragraph 3 accordingly allows that international law may recognize additional legal consequences flowing from the commission of a serious breach in the sense of article 40. The fact that such further consequences are not expressly referred to in chapter III does not prejudice their recognition in present-day international law, or their further development. In addition, paragraph 3 reflects the conviction that the legal regime of serious breaches is itself in a state of development. By setting out certain basic legal consequences of serious breaches in the sense of article 40, article 41 does not intend to preclude the future development of a more elaborate regime of consequences entailed by such breaches.
[1906] 662 Namibia case (footnote [690] 176 above), p. 56, para. 126.
[1907] 663 See, e.g., Security Council resolutions 218 (1965) of 23 November 1965 on the Portuguese colonies, and 418 (1977) of 4 November 1977 and 569 (1985) of 26 July 1985 on South Africa.
458 Article 41
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International Court of Justice
Jurisdictional Immunities of the State (Germany v. Italy)
In Jurisdictional Immunities of the State (Germany v. Italy), the International Court of Justice rejected the respondent’s argument that a conflict existed “between a rule, or rules, of jus cogens, and the rule of customary law which requires one State to accord immunity to another”.[1908] 196 Instead, the Court held that,
[t]he two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful … . [R]ecognizing the immunity of a foreign State in accordance with customary international law [did] not amount to recognizing as lawful a situation created by the breach of a jus cogens rule, or rendering aid and assistance in maintaining that situation, and so [could not] contravene the principle in Article 41 of the International Law Commission’s Articles on State Responsibility.[1909] 197
[A/68/72, para. 137]
International Criminal Court
Prosecutor (on the application of Victims) v. Bosco Ntaganda
The International Criminal Court in Prosecutor (on the application of Victims) v. Bosco Ntaganda indicated that “as a general principle of law, there is a duty not to recognise situations created by certain serious breaches of international law”, citing article 41, paragraph 2, of the State responsibility articles.[1910] 240
[A/74/83, p. 40]
[Inter-American Court of Human Rights
The Obligations in Matters of Human Rights of a State that has Denounced the American Convention on Human Rights and the Charter of the Organization of American States (Interpretation and Scope of articles 1, 2, 27, 29, 30, 31, 32, 33 to 65 and 78 of the American Convention on Human Rights and 3(l), 17, 45, 53, 106 and 143 of the Charter of the Organization of American States)
In an advisory opinion concerning the effects of a State’s denunciation of the American Convention on Human Rights, the Inter-American Court of Human Rights, in an analysis of jus cogens norms, cited articles 40, 41 and 48 and the commentary to article 40, indicating that the obligations contained in article 40 “arise from those substantive rules
[1908] 196 See footnote [788] 104 above, para. 93.
[1909] 197 Ibid.
[1910] 240 International Criminal Court, Trial Chamber VI, Second decision on the defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, Case No. ICC-01/04–02/06–1707, ICL 1730, 4 January 2017, para. 53 and footnote 131.
Article 41 459
of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values”.[1911] 222
[A/77/74, p. 36]]
International arbitral tribunal (under Annex VII to the 1982 United Nations Convention on the Law of the Sea)
Dispute Concerning Costal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russian Federation)
In its award concerning preliminary objections, the arbitral tribunal in Dispute Concerning Costal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russian Federation) indicated that article 41 “imposes upon all States an obligation not to recognize as lawful a situation created by a gross or systematic failure by the responsible State to fulfil an obligation arising under a peremptory norm of general international law”.[1912] 223 Nevertheless, the arbitral tribunal concluded that it did not consider “that the [General Assembly] resolutions to which Ukraine refers can be read to go as far as prohibiting it from recognizing the existence of a dispute over the territorial status of Crimea”.[1913] 224 The tribunal also cited article 40.[1914] 225
[A/77/74, p. 36]
[1911] [222 IACHR, The Obligations in Matters of Human Rights of a State that has Denounced the American Convention on Human Rights and the Charter of the Organization of American States (Interpretation and Scope of articles 1, 2, 27, 29, 30, 31, 32, 33 to 65 and 78 of the American Convention on Human Rights and 3(l), 17, 45, 53, 106 and 143 of the Charter of the Organization of American States), Series A, No. 26, Advisory Opinion No. OC-26/20, 9 November 2020, paras. 103–104.]
[1912] 223 PCA, Case No. 2017–06, Award (Preliminary Objections), 21 February 2020, para. 170.
[1913] 224 Ibid., para. 177.
[1914] 225 Ibid., para. 169.
460
Part Three
THE IMPLEMENTATION OF THE INTERNATIONAL RESPONSIBILITY
OF A STATE
Part Three deals with the implementation of State responsibility, i.e. with giving effect to the obligations of cessation and reparation which arise for a responsible State under Part Two by virtue of its commission of an internationally wrongful act. Although State responsibility arises under international law independently of its invocation by another State, it is still necessary to specify what other States faced with a breach of an international obligation may do, what action they may take in order to secure the performance of the obligations of cessation and reparation on the part of the responsible State. This, sometimes referred to as the mise-en-oeuvre of State responsibility, is the subject matter of Part Three. Part Three consists of two chapters. Chapter I deals with the invocation of State responsibility by other States and with certain associated questions. Chapter II deals with countermeasures taken in order to induce the responsible State to cease the conduct in question and to provide reparation.
461
Chapter I
INVOCATION OF THE RESPONSIBILITY OF A STATE
Commentary
(1) Part One of the articles identifies the internationally wrongful act of a State generally in terms of the breach of any international obligation of that State. Part Two defines the consequences of internationally wrongful acts in the field of responsibility as obligations of the responsible State, not as rights of any other State, person or entity. Part Three is concerned with the implementation of State responsibility, i.e. with the entitlement of other States to invoke the international responsibility of the responsible State and with certain modalities of such invocation. The rights that other persons or entities may have arising from a breach of an international obligation are preserved by article 33, paragraph 2.
(2) Central to the invocation of responsibility is the concept of the injured State. This is the State whose individual right has been denied or impaired by the internationally wrongful act or which has otherwise been particularly affected by that act. This concept is introduced in article 42 and various consequences are drawn from it in other articles of this chapter. In keeping with the broad range of international obligations covered by the articles, it is necessary to recognize that a broader range of States may have a legal interest in invoking responsibility and ensuring compliance with the obligation in question. Indeed, in certain situations, all States may have such an interest, even though none of them is individually or specially affected by the breach.[1915] 664 This possibility is recognized in article 48. Articles 42 and 48 are couched in terms of the entitlement of States to invoke the responsibility of another State. They seek to avoid problems arising from the use of possibly misleading terms such as “direct” versus “indirect” injury or “objective” versus “subjective” rights.
(3) Although article 42 is drafted in the singular (“an injured State”), more than one State may be injured by an internationally wrongful act and be entitled to invoke responsibility as an injured State. This is made clear by article 46. Nor are articles 42 and 48 mutually exclusive. Situations may well arise in which one State is “injured” in the sense of article 42, and other States are entitled to invoke responsibility under article 48.
(4) Chapter I also deals with a number of related questions: the requirement of notice if a State wishes to invoke the responsibility of another (art. 43), certain aspects of the admissibility of claims (art. 44), loss of the right to invoke responsibility (art. 45), and cases where the responsibility of more than one State may be invoked in relation to the same internationally wrongful act (art. 47).
(5) Reference must also be made to article 55, which makes clear the residual character of the articles. In addition to giving rise to international obligations for States, special rules may also determine which other State or States are entitled to invoke the international responsibility arising from their breach, and what remedies they may seek. This was true, for example, of article 396 of the Treaty of Versailles , which was the subject of the decision
[1915] 664 Cf. the statement by ICJ that “all States can be held to have a legal interest” as concerns breaches of obligations erga omnes, Barcelona Traction (footnote [46] 52 above), p. 32, para. 33, cited in paragraph (2) of the commentary to chapter III of Part Two.
462 Part Three, Chapter I
in the S.S. “Wimbledon” case.[1916] 665 It is also true of article 33 of the European Convention on Human Rights. It will be a matter of interpretation in each case whether such provisions are intended to be exclusive, i.e. to apply as a lex specialis.
[1916] 665 Four States there invoked the responsibility of Germany, at least one of which, Japan, had no specific interest in the voyage of the S.S. “Wimbledon” (footnote [28] 34 above).
463
Article 42. Invocation of responsibility by an injured State
A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to:
(a) that State individually; or
(b) a group of States including that State, or the international community as a whole, and the breach of the obligation:
(i) specially affects that State; or
(ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.
Commentary
(1) Article 42 provides that the implementation of State responsibility is in the first place an entitlement of the “injured State”. It defines this term in a relatively narrow way, drawing a distinction between injury to an individual State or possibly a small number of States and the legal interests of several or all States in certain obligations established in the collective interest. The latter are dealt with in article 48.
(2) This chapter is expressed in terms of the invocation by a State of the responsibility of another State. For this purpose, invocation should be understood as taking measures of a relatively formal character, for example, the raising or presentation of a claim against another State or the commencement of proceedings before an international court or tribunal. A State does not invoke the responsibility of another State merely because it criticizes that State for a breach and calls for observance of the obligation, or even reserves its rights or protests. For the purpose of these articles, protest as such is not an invocation of responsibility; it has a variety of forms and purposes and is not limited to cases involving State responsibility. There is in general no requirement that a State which wishes to protest against a breach of international law by another State or remind it of its international responsibilities in respect of a treaty or other obligation by which they are both bound should establish any specific title or interest to do so. Such informal diplomatic contacts do not amount to the invocation of responsibility unless and until they involve specific claims by the State concerned, such as for compensation for a breach affecting it, or specific action such as the filing of an application before a competent international tribunal,[1917] 666 or even the taking of countermeasures. In order to take such steps, i.e. to invoke responsibility in the sense of the articles, some more specific entitlement is needed. In particular, for a State to invoke responsibility on its own account it should have a specific right to do so, e.g. a right of action specifically conferred by a treaty,[1918] 667 or it must be considered an injured State. The purpose of article 42 is to define this latter category.
[1917] 666 An analogous distinction is drawn by article 27, paragraph 2, of the Convention on the Settlement of Investment Disputes between States and Nationals of other States, which distinguishes between the bringing of an international claim in the field of diplomatic protection and “informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute”.
[1918] 667 In relation to article 42, such a treaty right could be considered a lex specialis: see article 55 and commentary.
464 Article 42
(3) A State which is injured in the sense of article 42 is entitled to resort to all means of redress contemplated in the articles. It can invoke the appropriate responsibility pursuant to Part Two. It may also—as is clear from the opening phrase of article 49—resort to countermeasures in accordance with the rules laid down in chapter II of this Part. The situation of an injured State should be distinguished from that of any other State which may be entitled to invoke responsibility, e.g. under article 48 which deals with the entitlement to invoke responsibility in some shared general interest. This distinction is clarified by the opening phrase of article 42, “A State is entitled as an injured State to invoke the responsibility”.
(4) The definition in article 42 is closely modelled on article 60 of the 1969 Vienna Convention, although the scope and purpose of the two provisions are different. Article 42 is concerned with any breach of an international obligation of whatever character, whereas article 60 is concerned with breach of treaties. Moreover, article 60 is concerned exclusively with the right of a State party to a treaty to invoke a material breach of that treaty by another party as grounds for its suspension or termination. It is not concerned with the question of responsibility for breach of the treaty.[1919] 668 This is why article 60 is restricted to “material” breaches of treaties. Only a material breach justifies termination or suspension of the treaty, whereas in the context of State responsibility any breach of a treaty gives rise to responsibility irrespective of its gravity. Despite these differences, the analogy with article 60 is justified. Article 60 seeks to identify the States parties to a treaty which are entitled to respond individually and in their own right to a material breach by terminating or suspending it. In the case of a bilateral treaty, the right can only be that of the other State party, but in the case of a multilateral treaty article 60, paragraph 2, does not allow every other State to terminate or suspend the treaty for material breach. The other State must be specially affected by the breach, or at least individually affected in that the breach necessarily undermines or destroys the basis for its own further performance of the treaty.
(5) In parallel with the cases envisaged in article 60 of the 1969 Vienna Convention, three cases are identified in article 42. In the first case, in order to invoke the responsibility of another State as an injured State, a State must have an individual right to the performance of an obligation, in the way that a State party to a bilateral treaty has vis-à-vis the other State party (subparagraph (a)). Secondly, a State may be specially affected by the breach of an obligation to which it is a party, even though it cannot be said that the obligation is owed to it individually (subparagraph (b) (i)). Thirdly, it may be the case that performance of the obligation by the responsible State is a necessary condition of its performance by all the other States (subparagraph (b) (ii)); this is the so-called “integral” or “interdependent” obligation.[1920] 669 In each of these cases, the possible suspension or termination of the obligation or of its performance by the injured State may be of little value to it as a remedy. Its primary interest may be in the restoration of the legal relationship by cessation and reparation.
(6) Pursuant to subparagraph (a) of article 42, a State is “injured” if the obligation breached was owed to it individually. The expression “individually” indicates that in the circumstances, performance of the obligation was owed to that State. This will necessarily
[1919] 668 Cf. the 1969 Vienna Convention, art. 73.
[1920] 669 The notion of “integral” obligations was developed by Fitzmaurice as Special Rapporteur on the Law of Treaties: see Yearbook … 1957, vol. II, p. 54. The term has sometimes given rise to confusion, being used to refer to human rights or environmental obligations which are not owed on an “all or nothing” basis. The term “interdependent obligations” may be more appropriate.
Article 42 465
be true of an obligation arising under a bilateral treaty between the two States parties to it, but it will also be true in other cases, e.g. of a unilateral commitment made by one State to another. It may be the case under a rule of general international law: thus, for example, rules concerning the non-navigational uses of an international river which may give rise to individual obligations as between one riparian State and another. Or it may be true under a multilateral treaty where particular performance is incumbent under the treaty as between one State party and another. For example, the obligation of the receiving State under article 22 of the Vienna Convention on Diplomatic Relations to protect the premises of a mission is owed to the sending State. Such cases are to be contrasted with situations where performance of the obligation is owed generally to the parties to the treaty at the same time and is not differentiated or individualized. It will be a matter for the interpretation and application of the primary rule to determine into which of the categories an obligation comes. The following discussion is illustrative only.
(7) An obvious example of cases coming within the scope of subparagraph (a) is a bilateral treaty relationship. If one State violates an obligation the performance of which is owed specifically to another State, the latter is an “injured State” in the sense of article 42. Other examples include binding unilateral acts by which one State assumes an obligation vis-à-vis another State; or the case of a treaty establishing obligations owed to a third State not party to the treaty.[1921] 670 If it is established that the beneficiaries of the promise or the stipulation in favour of a third State were intended to acquire actual rights to performance of the obligation in question, they will be injured by its breach. Another example is a binding judgement of an international court or tribunal imposing obligations on one State party to the litigation for the benefit of the other party.[1922] 671
(8) In addition, subparagraph (a) is intended to cover cases where the performance of an obligation under a multilateral treaty or customary international law is owed to one particular State. The scope of subparagraph (a) in this respect is different from that of article 60, paragraph 1, of the 1969 Vienna Convention, which relies on the formal criterion of bilateral as compared with multilateral treaties. But although a multilateral treaty will characteristically establish a framework of rules applicable to all the States parties, in certain cases its performance in a given situation involves a relationship of a bilateral character between two parties. Multilateral treaties of this kind have often been referred to as giving rise to “‘bundles’ of bilateral relations”.[1923] 672
(9) The identification of one particular State as injured by a breach of an obligation under the Vienna Convention on Diplomatic Relations does not exclude that all States parties may have an interest of a general character in compliance with international law and in the continuation of international institutions and arrangements which have been built up over
[1921] 670 Cf. the 1969 Vienna Convention, art. 36.
[1922] 671 See, e.g., Article 59 of the Statute of ICJ.
[1923] 672 See, e.g., K. Sachariew, “State responsibility for multilateral treaty violations: identifying the ‘injured State’ and its legal status”, Netherlands International Law Review, vol. 35, No. 3 (1988), p. 273, at pp. 277–278; B. Simma, “Bilateralism and community interest in the law of State responsibility”, International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne, Y. Dinstein, ed. (Dordrecht, Martinus Nijhoff, 1989), p. 821, at p. 823; C. Annacker, “The legal régime of erga omnes obligations in international law”, Austrian Journal of Public and International Law, vol. 46, No. 2 (1994), p. 131, at p. 136; and D. N. Hutchinson, “Solidarity and breaches of multilateral treaties”, BYBIL, 1988, vol. 59, p. 151, at pp. 154–155.
466 Article 42
the years. In the United States Diplomatic and Consular Staff in Tehran case, after referring to the “fundamentally unlawful character” of the Islamic Republic of Iran’s conduct in participating in the detention of the diplomatic and consular personnel, the Court drew:
the attention of the entire international community, of which Iran itself has been a member since time immemorial, to the irreparable harm that may be caused by events of the kind now before the Court. Such events cannot fail to undermine the edifice of law carefully constructed by mankind over a period of centuries, the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected.[1924] 673
(10) Although discussion of multilateral obligations has generally focused on those arising under multilateral treaties, similar considerations apply to obligations under rules of customary international law. For example, the rules of general international law governing the diplomatic or consular relations between States establish bilateral relations between particular receiving and sending States, and violations of these obligations by a particular receiving State injure the sending State to which performance was owed in the specific case.
(11) Subparagraph (b) deals with injury arising from violations of collective obligations, i.e. obligations that apply between more than two States and whose performance in the given case is not owed to one State individually, but to a group of States or even the international community as a whole. The violation of these obligations only injures any particular State if additional requirements are met. In using the expression “group of States”, article 42, subparagraph (b), does not imply that the group has any separate existence or that it has separate legal personality. Rather, the term is intended to refer to a group of States, consisting of all or a considerable number of States in the world or in a given region, which have combined to achieve some collective purpose and which may be considered for that purpose as making up a community of States of a functional character.
(12) Subparagraph (b) (i) stipulates that a State is injured if it is “specially affected” by the violation of a collective obligation. The term “specially affected” is taken from article 60, paragraph (2) (b), of the 1969 Vienna Convention. Even in cases where the legal effects of an internationally wrongful act extend by implication to the whole group of States bound by the obligation or to the international community as a whole, the wrongful act may have particular adverse effects on one State or on a small number of States. For example a case of pollution of the high seas in breach of article 194 of the United Nations Convention on the Law of the Sea may particularly impact on one or several States whose beaches may be polluted by toxic residues or whose coastal fisheries may be closed. In that case, independently of any general interest of the States parties to the Convention in the preservation of the marine environment, those coastal States parties should be considered as injured by the breach. Like article 60, paragraph (2) (b), of the 1969 Vienna Convention, subparagraph (b) (i) does not define the nature or extent of the special impact that a State must have sustained in order to be considered “injured”. This will have to be assessed on a case-by-case basis, having regard to the object and purpose of the primary obligation breached and the facts of each case. For a
[1924] 673 United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), p. 41–43, paras. 89 and 92.
Article 42 467
State to be considered injured, it must be affected by the breach in a way which distinguishes it from the generality of other States to which the obligation is owed.
(13) In contrast, subparagraph (b) (ii) deals with a special category of obligations, the breach of which must be considered as affecting per se every other State to which the obligation is owed. Article 60, paragraph 2 (c), of the 1969 Vienna Convention recognizes an analogous category of treaties, viz. those “of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations”. Examples include a disarmament treaty,[1925] 674 a nuclear free zone treaty, or any other treaty where each party’s performance is effectively conditioned upon and requires the performance of each of the others. Under article 60, paragraph 2 (c), any State party to such a treaty may terminate or suspend it in its relations not merely with the responsible State but generally in its relations with all the other parties.
(14) Essentially, the same considerations apply to obligations of this character for the purposes of State responsibility. The other States parties may have no interest in the termination or suspension of such obligations as distinct from continued performance, and they must all be considered as individually entitled to react to a breach. This is so whether or not any one of them is particularly affected; indeed they may all be equally affected, and none may have suffered quantifiable damage for the purposes of article 36. They may nonetheless have a strong interest in cessation and in other aspects of reparation, in particular restitution. For example, if one State party to the Antarctic Treaty claims sovereignty over an unclaimed area of Antarctica contrary to article 4 of that Treaty, the other States parties should be considered as injured thereby and as entitled to seek cessation, restitution (in the form of the annulment of the claim) and assurances of non-repetition in accordance with Part Two.
(15) The articles deal with obligations arising under international law from whatever source and are not confined to treaty obligations. In practice, interdependent obligations covered by subparagraph (b) (ii) will usually arise under treaties establishing particular regimes. Even under such treaties it may not be the case that just any breach of the obligation has the effect of undermining the performance of all the other States involved, and it is desirable that this subparagraph be narrow in its scope. Accordingly, a State is only considered injured under subparagraph (b) (ii) if the breach is of such a character as radically to affect the enjoyment of the rights or the performance of the obligations of all the other States to which the obligation is owed.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
World Trade Organization panel
European Communities—Regime for the Importation, Sale and Distribution of Bananas
In its 1997 reports on European Communities—Regime for the Importation, Sale and Distribution of Bananas, the WTO panel, in considering the European Communities argument according to which the United States had “no legal right or interest” in the case (given that its banana production was minimal and its banana exports were nil, and therefore it
[1925] 674 The example given in the commentary of the Commission to what became article 60: Yearbook … 1966, vol. II, p. 255, document A/6309/Rev.1, para. (8).
468 Article 42
had not suffered any nullification or impairment of WTO benefits in respect of trade in bananas as required by article 3.3. and 3.7 of the WTO Dispute Settlement Understanding), considered that a WTO member’s potential interest in trade in goods or services and its interest in a determination of rights and obligations under the WTO agreement were each sufficient to establish a right to pursue a WTO dispute settlement proceeding. The panel was of the view that this result was consistent with decisions of international tribunals: in a footnote,[1926] 210 it referred to relevant findings by the Permanent Court of International Justice and the International Court of Justice, as well as to paragraph 2 (e) and (f) of draft article 40 adopted by the International Law Commission on first reading.[1927] 211
[A/62/62, para. 118]
[1926] 210 WTO, Panel Report, European Communities—Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/R/ECU, WT/DS27/R/MEX, WT/DS27/R/USA, WT/DS27/R/GTM and WT/DS27/R/HND, 22 May 1997, para. 7.50, footnote 361.
[1927] 211 Draft article 40, paragraph 2 (e) and (f) adopted on first reading were amended and incorporated respectively in article 42(b) and article 48, paragraph 1 (a), finally adopted in 2001. The complete text of draft article 40 adopted on first reading is reproduced in footnote [2017] 221 below.
469
Article 43. Notice of claim by an injured State
1. An injured State which invokes the responsibility of another State shall give notice of its claim to that State.
2. The injured State may specify in particular:
(a) the conduct that the responsible State should take in order to cease the wrongful act, if it is continuing;
(b) what form reparation should take in accordance with the provisions of PartTwo.
Commentary
(1) Article 43 concerns the modalities to be observed by an injured State in invoking the responsibility of another State. The article applies to the injured State as defined in article 42, but States invoking responsibility under article 48 must also comply with its requirements.[1928] 675
(2) Although State responsibility arises by operation of law on the commission of an internationally wrongful act by a State, in practice it is necessary for an injured State and/or other interested State(s) to respond, if they wish to seek cessation or reparation. Responses can take a variety of forms, from an unofficial and confidential reminder of the need to fulfil the obligation through formal protest, consultations, etc. Moreover, the failure of an injured State which has notice of a breach to respond may have legal consequences, including even the eventual loss of the right to invoke responsibility by waiver or acquiescence: this is dealt with in article 45.
(3) Article 43 requires an injured State which wishes to invoke the responsibility of another State to give notice of its claim to that State. It is analogous to article 65 of the 1969 Vienna Convention. Notice under article 43 need not be in writing, nor is it a condition for the operation of the obligation to provide reparation. Moreover, the requirement of notification of the claim does not imply that the normal consequence of the non-performance of an international obligation is the lodging of a statement of claim. Nonetheless, an injured or interested State is entitled to respond to the breach and the first step should be to call the attention of the responsible State to the situation, and to call on it to take appropriate steps to cease the breach and to provide redress.
(4) It is not the function of the articles to specify in detail the form which an invocation of responsibility should take. In practice, claims of responsibility are raised at different levels of government, depending on their seriousness and on the general relations between the States concerned. In Certain Phosphate Lands in Nauru, Australia argued that Nauru’s claim was inadmissible because it had “not been submitted within a reasonable time”.[1929]676 The Court referred to the fact that the claim had been raised, and not settled, prior to Nauru’s independence in 1968, and to press reports that the claim had been mentioned by the new President of Nauru in his independence day speech, as well as, inferentially, in subsequent correspondence and discussions with Australian Ministers. However, the Court also noted that:
[1928] 675 See article 48, paragraph (3), and commentary.
[1929] 676 Certain Phosphate Lands in Nauru, Preliminary Objections (footnote [777] 230 above), p. 253, para. 31.
470 Article 43
It was only on 6 October 1983 that the President of Nauru wrote to the Prime Minister of Australia requesting him to “seek a sympathetic reconsideration of Nauru’s position”. [1930] 677
The Court summarized the communications between the parties as follows:
The Court … takes note of the fact that Nauru was officially informed, at the latest by letter of 4 February 1969, of the position of Australia on the subject of rehabilitation of the phosphate lands worked out before 1 July 1967. Nauru took issue with that position in writing only on 6 October 1983. In the meantime, however, as stated by Nauru and not contradicted by Australia, the question had on two occasions been raised by the President of Nauru with the competent Australian authorities. The Court considers that, given the nature of relations between Australia and Nauru, as well as the steps thus taken, Nauru’s Application was not rendered inadmissible by passage of time. [1931] 678
In the circumstances, it was sufficient that the respondent State was aware of the claim as a result of communications from the claimant, even if the evidence of those communications took the form of press reports of speeches or meetings rather than of formal diplomatic correspondence.
(5) When giving notice of a claim, an injured or interested State will normally specify what conduct in its view is required of the responsible State by way of cessation of any continuing wrongful act, and what form any reparation should take. Thus, paragraph 2 (a) provides that the injured State may indicate to the responsible State what should be done in order to cease the wrongful act, if it is continuing. This indication is not, as such, binding on the responsible State. The injured State can only require the responsible State to comply with its obligations, and the legal consequences of an internationally wrongful act are not for the injured State to stipulate or define. But it may be helpful to the responsible State to know what would satisfy the injured State; this may facilitate the resolution of the dispute.
(6) Paragraph 2 (b) deals with the question of the election of the form of reparation by the injured State. In general, an injured State is entitled to elect as between the available forms of reparation. Thus, it may prefer compensation to the possibility of restitution, as Germany did in the Factory at Chorzów case,[1932] 679 or as Finland eventually chose to do in its settlement of the Passage through the Great Belt case.[1933] 680 Or it may content itself with declaratory relief, generally or in relation to a particular aspect of its claim. On the other hand, there are cases where a State may not, as it were, pocket compensation and walk away from an unresolved situation, for example one involving the life or liberty of individuals or the entitlement of a people to their territory or to self-determination. In particular, insofar as there are continuing obligations the performance of which are not simply matters for the two States
[1930] 677 Ibid., p. 254, para. 35.
[1931] 678 Ibid., pp. 254–255, para. 36.
[1932] 679 As PCIJ noted in the Case concerning the Factory at Chorzów, Jurisdiction (footnote [28] 34 above), by that stage of the dispute, Germany was no longer seeking on behalf of the German companies concerned the return of the factory in question or of its contents (p. 17).
[1933] 680 In the Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 12, ICJ did not accept Denmark’s argument as to the impossibility of restitution if, on the merits, it was found that the construction of the bridge across the Great Belt would result in a violation of Denmark’s international obligations. For the terms of the eventual settlement, see M. Koskenniemi, “L’affaire du passage par le Grand-Belt”, Annuaire français de droit international, vol. 38 (1992), p. 905, at p. 940.
Article 43 471
concerned, those States may not be able to resolve the situation by a settlement, just as an injured State may not be able on its own to absolve the responsible State from its continuing obligations to a larger group of States or to the international community as a whole.
(7) In the light of these limitations on the capacity of the injured State to elect the preferred form of reparation, article 43 does not set forth the right of election in an absolute form. Instead, it provides guidance to an injured State as to what sort of information it may include in its notification of the claim or in subsequent communications.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Convention)
Mr Franck Charles Arif v. Republic of Moldova
The arbitral tribunal in Mr Franck Charles Arif v. Republic of Moldova referred to the commentary to article 43 in support of the view that “the general position in international law is that the injured State may elect between the available forms of reparation and may prefer compensation to restitution”.[1934] 230
[A/71/80, para. 154]
International Court of Justice
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom and Marshall Islands v. India)
In Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament between Marshall Islands v. United Kingdom and Marshall Islands v. India, the International Court of Justice cited the commentary to article 44 of the State responsibility articles to “reject the [respondent’s] view that notice or prior negotiations are required” in accordance with article 43 of the State responsibility articles. The International Court of Justice further observed that “[t]he Court’s jurisprudence treats the question of the existence of a dispute as a jurisdictional one that turns on whether there is, in substance, a dispute, not on what form that dispute takes or whether the respondent has been notified”.[1935] 241
[A/74/83, p. 41]
[1934] 230 See footnote [320] 46 above, footnote 264.
[1935] 241 ICJ, Judgment, 5 October 2016, para. 42.
472
Article 44. Admissibility of claims
The responsibility of a State may not be invoked if:
(a) the claim is not brought in accordance with any applicable rule relating to the nationality of claims;
(b) the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.
Commentary
(1) The present articles are not concerned with questions of the jurisdiction of international courts and tribunals, or in general with the conditions for the admissibility of cases brought before such courts or tribunals. Rather, they define the conditions for establishing the international responsibility of a State and for the invocation of that responsibility by another State or States. Thus, it is not the function of the articles to deal with such questions as the requirement for exhausting other means of peaceful settlement before commencing proceedings, or such doctrines as litispendence or election as they may affect the jurisdiction of one international tribunal vis-à-vis another.[1936] 681 By contrast, certain questions which would be classified as questions of admissibility when raised before an international court are of a more fundamental character. They are conditions for invoking the responsibility of a State in the first place. Two such matters are dealt with in article 44: the requirements of nationality of claims and exhaustion of local remedies.
(2) Subparagraph (a) provides that the responsibility of a State may not be invoked other than in accordance with any applicable rule relating to the nationality of claims. As PCIJ said in the Mavrommatis Palestine Concessions case:
It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels.[1937] 682
Subparagraph (a) does not attempt a detailed elaboration of the nationality of claims rule or of the exceptions to it. Rather, it makes it clear that the nationality of claims rule is not only relevant to questions of jurisdiction or the admissibility of claims before judicial bodies, but is also a general condition for the invocation of responsibility in those cases where it is applicable.[1938] 683
[1936] 681 For discussion of the range of considerations affecting jurisdiction and admissibility of international claims before courts, see G. Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour internationale (Paris, Pedone, 1967); Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge, Grotius, 1986), vol. 2, pp. 427–575; and S. Rosenne, The Law and Practice of the International Court, 1920–1996, 3rd ed. (The Hague, Martinus Nijhoff, 1997), vol. II, Jurisdiction.
[1937] 682 Mavrommatis (footnote [800] 236 above), p. 12.
[1938] 683 Questions of nationality of claims will be dealt with in detail in the work of the Commission on diplomatic protection. See first report of the Special Rapporteur for the topic “Diplomatic protection” in Yearbook … 2000, vol. II (Part One), document A/CN.4/506 and Add.1. [Editor’s Note: the Commission subsequently adopted the draft articles on diplomatic protection, in 2006; see Yearbook … 2006, vol. II (Part Two), para. 49.]
Article 44 473
(3) Subparagraph (b) provides that when the claim is one to which the rule of exhaustion of local remedies applies, the claim is inadmissible if any available and effective local remedy has not been exhausted. The paragraph is formulated in general terms in order to cover any case to which the exhaustion of local remedies rule applies, whether under treaty or general international law, and in spheres not necessarily limited to diplomatic protection.
(4) The local remedies rule was described by a Chamber of the Court in the ELSI case as “an important principle of customary international law”.[1939] 684 In the context of a claim brought on behalf of a corporation of the claimant State, the Chamber defined the rule succinctly in the following terms:
for an international claim [sc. on behalf of individual nationals or corporations] to be admissible, it is sufficient if the essence of the claim has been brought before the competent tribunals and pursued as far as permitted by local law and procedures, and without success.[1940] 685
The Chamber thus treated the exhaustion of local remedies as being distinct, in principle, from “the merits of the case”.[1941] 686
(5) Only those local remedies which are “available and effective” have to be exhausted before invoking the responsibility of a State. The mere existence on paper of remedies under the internal law of a State does not impose a requirement to make use of those remedies in every case. In particular, there is no requirement to use a remedy which offers no possibility of redressing the situation, for instance, where it is clear from the outset that the law which the local court would have to apply can lead only to the rejection of any appeal. Beyond this, article 44, subparagraph (b), does not attempt to spell out comprehensively the scope and content of the exhaustion of local remedies rule, leaving this to the applicable rules of international law.[1942] 687
[1939] 684 ELSI (footnote [144] 85 above), p. 42, para. 50. See also Interhandel, Preliminary Objections, I.C.J. Reports 1959, p. 6, at p. 27. On the exhaustion of local remedies rule generally, see, e.g., C. F. Amerasinghe, Local Remedies in International Law (Cambridge, Grotius, 1990); J. Chappez, La règle de l’épuisement des voies de recours internes (Paris, Pedone, 1972); K. Doehring, “Local remedies, exhaustion of”, Encyclopedia of Public International Law, R. Bernhardt, ed. (footnote [1085] 409 above), vol. 3, pp. 238–242; and G. Perrin, “La naissance de la responsabilité internationale et l’épuisement des voies de recours internes dans le projet d’articles de la Commission du droit international”, Festschrift für Rudolf Bindschedler (Bern, Stämpfli, 1980), p. 271. On the exhaustion of local remedies rule in relation to violations of human rights obligations, see, e.g., A. A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law: Its Rationale in the International Protection of Individual Rights (Cambridge University Press, 1983); and E. Wyler, L’illicite et la condition des personnes privées (Paris, Pedone, 1995), pp. 65–89.
[1940] 685 ELSI (footnote [144] 85 above), p. 46, para. 59.
[1941] 686 Ibid., p. 48, para. 63.
[1942] 687 The topic will be dealt with in detail in the work of the Commission on diplomatic protection. See second report of the Special Rapporteur on diplomatic protection in Yearbook … 2001, vol. II (Part One), document A/CN.4/514. (See footnote [1938] 683 above.)
474 Article 44
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal
Case concerning the Air Service Agreement of 27 March 1946 between the United States of America and France
In its 1978 award, the arbitral tribunal established to hear the case concerning the Air Service Agreement of 27 March 1946 between the United States of America and France, to decide on France’s allegation according to which the United States was required, before resorting to arbitration, to wait until the United States company (Pan American World Airways) that considered itself injured had exhausted the local remedies available under French law, referred to the principles appearing in draft article 22, as provisionally adopted by the International Law Commission.[1943] 212 It considered that it was “significant” that the said provision:
establishes the requirement of exhaustion of local remedies only in relation to an obligation of “result”, which obligation “allows that this or an equivalent result may nevertheless be achieved by subsequent conduct of the State”, and which is an obligation “concerning the treatment of aliens”. Leaving aside the choice made in this draft article between the qualification of the rule of exhaustion of local remedies as one of “procedure” or one of “substance”—a matter which the Tribunal considers irrelevant for the present case—it is clear that the juridical character of the rules of international law to be applied in the present case is fundamentally different from that of the rules referred to in the draft article just cited. Indeed, under article I of the Air Service Agreement, “[t]he Contracting Parties grant to each other the rights specified in the Annex hereto … ” (emphasis added), and sections I and II of the annex both mention “the right to conduct air transport services by one or more air carriers of French [United States] nationality designated by the latter country … ” as a right granted by one Government to the other Government. Furthermore, it is obvious that the object and purpose of an air services agreement such as the present one is the conduct of air transport services, the corresponding obligations of the Parties being the admission of such conduct rather than an obligation requiring a “result” to be achieved, let alone one allowing an “equivalent result” to be achieved by conduct subsequent to the refusal of such admission. For the purposes of the issue under discussion, there is a substantial difference between, on the one hand, an obligation of a State to grant to aliens admitted to its territory a treatment corresponding to certain standards, and, on the other hand, an obligation of a State to admit the conduct of air transport services to, from and over its territory. In the latter case, owing to the very nature of international air transport services, there is no substitute for actually permitting the operation of such service, which could normally be regarded as providing an “equivalent result”.[1944] 213
[1943] 212 This provision was amended and incorporated in article 44(b) finally adopted by the ILC in 2001. The text of draft article 22 provisionally adopted was as follows:
Article 22
Exhaustion of local remedies
When the conduct of a State has created a situation not in conformity with the result required of it by an international obligation concerning the treatment to be accorded to aliens, whether natural or juridical persons, but the obligation allows that this or an equivalent result may nevertheless be achieved by subsequent conduct of the State, there is a breach of the obligation only if the aliens concerned have exhausted the effective local remedies available to them without obtaining the treatment called for by the obligation or, where that is not possible, an equivalent treatment. (Yearbook … 1980, vol. II (Part Two), para. 34.)
[1944] 213 Award, 9 December 1978, para. 31, reproduced in UNRIAA, vol. XVIII [(Sales No. E/F.80.V.7), pp. 431–432.
Article 44 475
On this basis, the arbitral tribunal thus found that its decision should not be postponed until such time as the company had exhausted local remedies.
[A/62/62, para. 119]
International Tribunal for the Law of the Sea
M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea)
In its 1999 judgment in the M/V “SAIGA” (No. 2) case, the Tribunal invoked draft article 22, as adopted by the International Law Commission on first reading,[1945] 214 in the context of determining whether the rule that local remedies must be exhausted was applicable in the said case:
As stated in article 22 of the draft articles on State responsibility adopted on first reading by the International Law Commission, the rule that local remedies must be exhausted is applicable when “the conduct of a State has created a situation not in conformity with the result required of it by an international obligation concerning the treatment to be accorded to aliens … ”. None of the violations of rights claimed by Saint Vincent and the Grenadines, as listed in paragraph 97, can be described as breaches of obligations concerning the treatment to be accorded to aliens. They are all direct violations of the rights of Saint Vincent and the Grenadines. Damage to the persons involved in the operation of the ship arises from those violations. Accordingly, the claims in respect of such damage are not subject to the rule that local remedies must be exhausted.[1946] 215
[A/62/62, para. 120]
International arbitral tribunal (under the ICSID Convention)
Maffezini v. Kingdom of Spain
In its 2000 decision on objections to jurisdiction, the arbitral tribunal constituted to hear the Maffezini v. Spain case, in support of its finding that
where a treaty guarantees certain rights and provides for the exhaustion of domestic remedies before a dispute concerning these guarantees may be referred to an international tribunal, the parties to the dispute retain the right to take the case to that tribunal as long as they have exhausted the available remedies, and this regardless of the outcome of the domestic proceeding … because the international tribunal rather than the domestic court has the final say on the meaning and scope of the international obligations … that are in dispute,
referred to draft article 22 adopted by the International Law Commission on first reading and the commentary thereto.[1947] 216
[A/62/62, para. 121]
[1945] 214 The text of that draft article was identical to that of draft article 22 provisionally adopted by the International Law Commission. (See footnote [1943] 212 above.)
[1946] 215 See footnote [1096] 159 above, para. 98.
[1947] 216 ICSID, Maffezini v. Kingdom of Spain, Case No. ARB/97/7, Decision on Objections to Jurisdiction, 25 January 2000, para. 29 and footnote 5, reproduced in ICSID Review—Foreign Investment Law Journal, vol. 16, No. 1, 2001, p. 12.
476 Article 44
International arbitral tribunal (under the ICSID Additional Facility Rules)
The Loewen Group, Inc. and Raymond L. Loewen v. United States
In its 2003 award, the arbitral tribunal constituted in accordance with chapter 11 NAFTA to hear The Loewen Group, Inc. and Raymond L. Loewen v. United States case, in examining the argument of the respondent that “State responsibility only arises when there is final action by the State’s judicial system as a whole”, referred to article 44 finally adopted by the International Law Commission in 2001:
The local remedies rule which requires a party complaining of a breach of international law by a State to exhaust the local remedies in that State before the party can raise the complaint at the level of international law is procedural in character. Article 44 of the latest International Law Commission draft articles on State responsibility demonstrates that the local remedies rule deals with the admissibility of a claim in international law, not whether the claim arises from a violation or breach of international law … Article 22 of the earlier draft, which had been prepared in 1975, embodied a substantive approach which was strongly criticized by governments (most notably the United Kingdom) and was not followed in Elettronica Sicula Spa (ELSI) United States v. Italy (1989) ICJ 15 at para. 50.[1948] 217
[A/62/62, para. 122]
International arbitral tribunal (under the ICSID Convention)
Philip Morris Brands Sàrl, and others v. Uruguay
The arbitral tribunal in Philip Morris Brands Sàrl, and others v. Uruguay noted that “[t]he reference [by the claimants] to Art. 44 of the ILC Articles is inapposite in that the issue in this case was not one of exhaustion of local remedies”.[1949] 231
[A/71/80, para. 155]
Permanent Court of Arbitration (under UNCITRAL Rules)
ST-AD GmbH v. Republic of Bulgaria
In ST-AD GmbH v. Republic of Bulgaria, the arbitral tribunal relied on, inter alia, article 44, subparagraph (b), in support of the view that “the obligation to exhaust domestic remedies forms part of customary international law, recognised as such in the case law of the ICJ”.[1950] 232 Specifically, the tribunal noted that the article “refers to the exhaustion of any ‘available and effective local remedy’”.[1951] 233
[A/71/80, para. 156]
[1948] 217 NAFTA (ICSID Additional Facility), Case No. ARB(AF)/98/3, Award, 26 June 2003, para. 149, footnote 12, reproduced in ILM, vol. 42, 2003, p. 835 (citing ELSI, see footnote [144] 85 above.).
[1949] 231 ICSID, Case No. ARB/10/7 (formerly FTR Holding S.A., Philip Morris Products S.A., and Abal Hermanos S.A. v. Oriental Republic of Uruguay), Decision on Jurisdiction, 2 July 2013, para. 135.
[1950] 232 PCA, Case No. 2011–06, Award on Jurisdiction, 18 July 2013, para. 365.
[1951] 233 Ibid., footnote 395.
Article 44 477
[International Court of Justice
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom and Marshall Islands v. India)
In Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament between Marshall Islands v. United Kingdom and Marshall Islands v. India, the International Court of Justice cited the commentary to article 44 of the State responsibility articles to “reject the [respondent’s] view that notice or prior negotiations are required” in accordance with article 43 of the State responsibility articles …[1952] 241
[A/74/83, p. 41]]
International arbitral tribunal (under the ICSID Convention)
Philip Morris Brands Sarl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay
The arbitral tribunal in Philip Morris Brands Sarl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay noted that “[t]he reference [by the claimants] to article 44 of the ILC Articles is inapposite in that the issue in this case was not one of exhaustion of local remedies”.[1953] 243
[A/74/83, p. 41]
Permanent Court of Arbitration (under UNCITRAL Rules)
Bank Melli Iran and Bank Saderat Iran v. Kingdom of Bahrain
The arbitral tribunal in Bank Melli Iran and Bank Saderat Iran v. Kingdom of Bahrain cited article 44, subparagraph (b), and the commentary thereto, and indicted that the exhaustion of local remedies was not a requirement to bring arbitral claims. The tribunal noted the explanation in the commentary that the provision is
not concerned with questions of the jurisdiction of international courts and tribunals, or in general with the condition for the admissibility of cases brought before such courts or tribunals. Rather, [it] define[s] the conditions for establishing the international responsibility of a State and for the invocation of that responsibility by another State or States.[1954] 227
[A/77/74, p. 37]
[1952] [241 ICJ, Judgment, 5 October 2016, para. 42.]
[1953] 243 ICSID, Case No. ARB/10/7, Award, 8 July 2016, para. 135.
[1954] 227 See footnote [1407] 157 above, paras. 516–518 and 526.
478
Article 45. Loss of the right to invoke responsibility
The responsibility of a State may not be invoked if:
(a) the injured State has validly waived the claim;
(b) the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim.
Commentary
(1) Article 45 is analogous to article 45 of the 1969 Vienna Convention concerning loss of the right to invoke a ground for invalidating or terminating a treaty. The article deals with two situations in which the right of an injured State or other States concerned to invoke the responsibility of a wrongdoing State may be lost: waiver and acquiescence in the lapse of the claim. In this regard, the position of an injured State as referred to in article 42 and other States concerned with a breach needs to be distinguished. A valid waiver or settlement of the responsibility dispute between the responsible State and the injured State, or, if there is more than one, all the injured States, may preclude any claim for reparation. Positions taken by individual States referred to in article 48 will not have such an effect.
(2) Subparagraph (a) deals with the case where an injured State has waived either the breach itself, or its consequences in terms of responsibility. This is a manifestation of the general principle of consent in relation to rights or obligations within the dispensation of a particular State.
(3) In some cases, the waiver may apply only to one aspect of the legal relationship between the injured State and the responsible State. For example, in the Russian Indemnity case, the Russian embassy had repeatedly demanded from Turkey a certain sum corresponding to the capital amount of a loan, without any reference to interest or damages for delay. Turkey having paid the sum demanded, the tribunal held that this conduct amounted to the abandonment of any other claim arising from the loan.[1955] 688
(4) A waiver is only effective if it is validly given. As with other manifestations of State consent, questions of validity can arise with respect to a waiver, for example, possible coercion of the State or its representative, or a material error as to the facts of the matter, arising perhaps from a misrepresentation of those facts by the responsible State. The use of the term “valid waiver” is intended to leave to the general law the question of what amounts to a valid waiver in the circumstances.[1956] 689 Of particular significance in this respect is the question of consent given by an injured State following a breach of an obligation arising from a peremptory norm of general international law, especially one to which article 40 applies. Since such a breach engages the interest of the international community as a whole, even the consent or acquiescence of the injured State does not preclude that interest from being expressed in order to ensure a settlement in conformity with international law.
(5) Although it may be possible to infer a waiver from the conduct of the States concerned or from a unilateral statement, the conduct or statement must be unequivocal. In Certain Phosphate Lands in Nauru, it was argued that the Nauruan authorities before independ[
1955] 688 Russian Indemnity (footnote [1014] 354 above), p. 446.
[1956] 689 Cf. the position with respect to valid consent under article 20: see paragraphs (4) to (8) of the commentary to article 20.
Article 45 479
ence had waived the rehabilitation claim by concluding an agreement relating to the future of the phosphate industry as well as by statements made at the time of independence. As to the former, the record of negotiations showed that the question of waiving the rehabilitation claim had been raised and not accepted, and the Agreement itself was silent on the point. As to the latter, the relevant statements were unclear and equivocal. The Court held there had been no waiver, since the conduct in question “did not at any time effect a clear and unequivocal waiver of their claims”.[1957] 690
In particular, the statements relied on “[n]otwithstanding some ambiguity in the wording … did not imply any departure from the point of view expressed clearly and repeatedly by the representatives of the Nauruan people before various organs of the United Nations”.[1958] 691
(6) Just as it may explicitly waive the right to invoke responsibility, so an injured State may acquiesce in the loss of that right. Subparagraph (b) deals with the case where an injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim. The article emphasizes conduct of the State, which could include, where applicable, unreasonable delay, as the determining criterion for the lapse of the claim. Mere lapse of time without a claim being resolved is not, as such, enough to amount to acquiescence, in particular where the injured State does everything it can reasonably do to maintain its claim.
(7) The principle that a State may by acquiescence lose its right to invoke responsibility was endorsed by ICJ in Certain Phosphate Lands in Nauru, in the following passage:
The Court recognizes that, even in the absence of any applicable treaty provision, delay on the part of a claimant State may render an application inadmissible. It notes, however, that international law does not lay down any specific time limit in that regard. It is therefore for the Court to determine in the light of the circumstances of each case whether the passage of time renders an application inadmissible.[1959] 692
In the LaGrand case, the Court held the German application admissible even though Germany had taken legal action some years after the breach had become known to it.[1960] 693
(8) One concern of the rules relating to delay is that additional difficulties may be caused to the respondent State due to the lapse of time, e.g. as concerns the collection and presentation of evidence. Thus, in the Stevenson case and the Gentini case, considerations of procedural fairness to the respondent State were advanced.[1961] 694 In contrast, the plea of delay has been rejected if, in the circumstances of a case, the respondent State could not
[1957] 690 Certain Phosphate Lands in Nauru, Preliminary Objections (footnote [777] 230 above), p. 247, para. 13.
[1958] 691 Ibid., p. 250, para. 20.
[1959] 692 Ibid., pp. 253–254, para. 32. The Court went on to hold that, in the circumstances of the case and having regard to the history of the matter, Nauru’s application was not inadmissible on this ground (para. 36). It reserved for the merits any question of prejudice to the respondent State by reason of the delay. See further paragraph (8) of the commentary to article 13.
[1960] 693 LaGrand, Provisional Measures (footnote [150] 91 above) and LaGrand, Judgment (footnote [236] 119 above), at pp. 486–487, paras. 53–57.
[1961] 694 See Stevenson, UNRIAA, vol. IX (Sales No. 59.V.5), p. 385 (1903); and Gentini, ibid., vol. X (Sales No. 60.V.4), p. 551 (1903).
480 Article 45
establish the existence of any prejudice on its part, as where it has always had notice of the claim and was in a position to collect and preserve evidence relating to it.[1962] 695
(9) Moreover, contrary to what may be suggested by the expression “delay”, international courts have not engaged simply in measuring the lapse of time and applying clear-cut time limits. No generally accepted time limit, expressed in terms of years, has been laid down.[1963] 696 The Swiss Federal Department in 1970 suggested a period of 20 to 30 years since the coming into existence of the claim.[1964] 697 Others have stated that the requirements were more exacting for contractual claims than for non-contractual claims.[1965] 698 None of the attempts to establish any precise or finite time limit for international claims in general has achieved acceptance.[1966] 699 It would be very difficult to establish any single limit, given the variety of situations, obligations and conduct that may be involved.
(10) Once a claim has been notified to the respondent State, delay in its prosecution (e.g. before an international tribunal) will not usually be regarded as rendering it inadmissible.[1967] 700 Thus, in Certain Phosphate Lands in Nauru, ICJ held it to be sufficient that Nauru had referred to its claims in bilateral negotiations with Australia in the period preceding the formal institution of legal proceedings in 1989.[1968] 701 In the Tagliaferro case, Umpire Ralston likewise held that despite the lapse of 31 years since the infliction of damage, the claim was admissible as it had been notified immediately after the injury had occurred.[1969] 702
(11) To summarize, a claim will not be inadmissible on grounds of delay unless the circumstances are such that the injured State should be considered as having acquiesced in the lapse of the claim or the respondent State has been seriously disadvantaged. International courts generally engage in a flexible weighing of relevant circumstances in the given case, taking into account such matters as the conduct of the respondent State and the importance of the rights involved. The decisive factor is whether the respondent State has suffered any preju[
1962] 695 See, e.g., Tagliaferro, UNRIAA, vol. X (Sales No. 60.V.4), p. 592, at p. 593 (1903); see also the actual decision in Stevenson (footnote [1961] 694 above), pp. 386–387.
[1963] 696 In some cases time limits are laid down for specific categories of claims arising under specific treaties (e.g. the six-month time limit for individual applications under article 35, paragraph 1, of the European Convention on Human Rights) notably in the area of private law (e.g. in the field of commercial transactions and international transport). See the Convention on the Limitation Period in the International Sale of Goods, as amended by the Protocol to the Convention. By contrast, it is highly unusual for treaty provisions dealing with inter-State claims to be subject to any express time limits.
[1964] 697 Communiqué of 29 December 1970, in Annuaire suisse de droit international, vol. 32 (1976), p. 153.
[1965] 698 C.-A. Fleischhauer, “Prescription”, Encyclopedia of Public International Law (footnote [1085] 409 above), vol. 3, p. 1105, at p. 1107.
[1966] 699 A large number of international decisions stress the absence of general rules, and in particular of any specific limitation period measured in years. Rather, the principle of delay is a matter of appreciation having regard to the facts of the given case. Besides Certain Phosphate Lands in Nauru (footnotes [777] 230 and [779] 232 above), see, e.g. Gentini (footnote [1961] 694 above), p. 561; and the Ambatielos arbitration, ILR, vol. 23 , p. 306, at pp. 314–317 (1956).
[1967] 700 For statements of the distinction between notice of claim and commencement of proceedings, see, e.g. R. Jennings and A. Watts, eds., Oppenheim’s International Law, 9th ed. (Harlow, Longman, 1992), vol. I, Peace, p. 527; and C. Rousseau, Droit international public (Paris, Sirey, 1983), vol. V, p. 182.
[1968] 701 Certain Phosphate Lands in Nauru, Preliminary Objections (footnote [777] 230 above), p. 250, para. 20.
[1969] 702 Tagliaferro (footnote [1962] 695 above), p. 593.
Article 45 481
dice as a result of the delay in the sense that the respondent could have reasonably expected that the claim would no longer be pursued. Even if there has been some prejudice, it may be able to be taken into account in determining the form or extent of reparation.[1970] 703
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International Court of Justice
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)
In its 2005 judgment in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Court invoked its own previous case law and the commentary of the International Law Commission to article 45, as finally adopted in 2001, in relation to the argument, made by the Democratic Republic of the Congo, that Uganda had waived whatever claims it might have had against the Democratic Republic of the Congo as a result of actions or inaction of the Mobutu regime:
The Court observes that waivers or renunciations of claims or rights must either be express or unequivocally implied from the conduct of the State alleged to have waived or renounced its right. In the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), the Court rejected a similar argument of waiver put forth by Australia, which argued that Nauru had renounced certain of its claims; noting the absence of any express waiver, the Court furthermore considered that a waiver of those claims could not be implied on the basis of the conduct of Nauru (Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 247–250, paras. 12–21). Similarly, the International Law Commission, in its commentary on article 45 of the draft articles on responsibility of States for internationally wrongful acts, points out that “[a]lthough it may be possible to infer a waiver from the conduct of the States concerned or from a unilateral statement, the conduct or statement must be unequivocal” ([Yearbook of the International Law Commission, 2001, vol. II (Part Two)], para. 77). In the Court’s view, nothing in the conduct of Uganda in the period after May 1997 can be considered as implying an unequivocal waiver of its right to bring a counter-claim relating to events which occurred during the Mobutu regime.[1971] 218
[A/62/62, para. 123]
World Trade Organization Appellate Body
Peru—Additional Duty on Imports of Certain Agricultural Products
The Appellate Body in Peru—Additional Duty on Imports of Certain Agricultural Products indicated that “there is no need for us to address whether the … ILC Articles 20 and 45 are ‘rules of international law applicable in the relations between the parties’, or the meaning of the term ‘parties’ in both Article 31(3)(a) and (c) of the Vienna Convention”.[1972] 234
[A/71/80, para. 157]
[1970] 703 See article 39 and commentary.
[1971] 218 ICJ, Judgment, 19 December 2005, para. 293.
[1972] 234 See also footnote [977] 126, para. 5.105 (as restated in paras. 5.118 and 6.4).
482 Article 45
International Tribunal for the Law of the Sea
M/V “Norstar” (Panama/Italy)
In M/V “Norstar” (Panama/Italy), the International Tribunal for the Law of the Sea relied on the commentary to article 45 of the State responsibility articles to find “that Panama has not failed to pursue its claim since the time when it first made it, so as to render the Application inadmissible”[1973] 244 and to “rejec[t] the objection raised by Italy based on extinctive prescription”.[1974] 245
[A/74/83, p. 41]
International arbitral tribunal (under the ICSID Convention)
Salini Impregilo S.p.A. v. Argentine Republic
The arbitral tribunal deciding on jurisdiction and admissibility of the claim in Salini Impregilo S.p.A. v. Argentine Republic noted with regard to “extinctive prescription as a matter of international law” that:
this is not mentioned as a separate ground for loss of the right to invoke responsibility in the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts. The ILC rejected the idea that lapse of time alone might entail the loss of a claim. Rather, Article 45(b) specifies that the responsibility of a state may not be invoked if the injured state has validly waived the claim or is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim.[1975] 246
Having regard to all circumstances, the arbitral tribunal concluded that “the delay here was not unreasonable, did not entail any acquiescence by Salini Impregilo in the lapse of its claim and did not trigger the principle of extinctive prescription”.[1976] 247
[A/74/83, p. 41]
[1973] 244 ITLOS, Preliminary Objections, Judgment of 4 November 2016, paras. 310 and 313.
[1974] 245 Ibid., para. 314.
[1975] 246 ICSID, Case No. ARB/15/39, Decision on Jurisdiction and Admissibility, 23 February 2018, para. 85.
[1976] 247 Ibid., para. 91.
483
Article 46. Plurality of injured States
Where several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act.
Commentary
(1) Article 46 deals with the situation of a plurality of injured States, in the sense defined in article 42. It states the principle that where there are several injured States, each of them may separately invoke the responsibility for the internationally wrongful act on its own account.
(2) Several States may qualify as “injured” States under article 42. For example, all the States to which an interdependent obligation is owed within the meaning of article 42, subparagraph (b) (ii), are injured by its breach. In a situation of a plurality of injured States, each may seek cessation of the wrongful act if it is continuing, and claim reparation in respect of the injury to itself. This conclusion has never been doubted, and is implicit in the terms of article 42 itself.
(3) It is by no means unusual for claims arising from the same internationally wrongful act to be brought by several States. For example, in the S.S. “Wimbledon” case, four States brought proceedings before PCIJ under article 386, paragraph 1, of the Treaty of Versailles, which allowed “any interested Power” to apply in the event of a violation of the provisions of the Treaty concerning transit through the Kiel Canal. The Court noted that “each of the four Applicant Powers has a clear interest in the execution of the provisions relating to the Kiel Canal, since they all possess fleets and merchant vessels flying their respective flags”. It held they were each covered by article 386, paragraph 1, “even though they may be unable to adduce a prejudice to any pecuniary interest”.[1977] 704 In fact, only France, representing the operator of the vessel, claimed and was awarded compensation. In the cases concerning the Aerial Incident of 27 July 1955, proceedings were commenced by the United States, the United Kingdom and Israel against Bulgaria concerning the destruction of an Israeli civil aircraft and the loss of lives involved.[1978] 705 In the Nuclear Tests cases, Australia and New Zealand each claimed to be injured in various ways by the French conduct of atmospheric nuclear tests at Mururoa Atoll.[1979] 706
(4) Where the States concerned do not claim compensation on their own account as distinct from a declaration of the legal situation, it may not be clear whether they are claiming as injured States or as States invoking responsibility in the common or general interest under article 48. Indeed, in such cases it may not be necessary to decide into which category they fall, provided it is clear that they fall into one or the other. Where there is more than
[1977] 704 S.S. “Wimbledon” (footnote [28] 34 above), p. 20.
[1978] 705 ICJ held that it lacked jurisdiction over the Israeli claim: Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Judgment, I.C.J. Reports 1959, p. 131, after which the United Kingdom and United States claims were withdrawn. In its Memorial, Israel noted that there had been active coordination of the claims between the various claimant Governments, and added: “One of the primary reasons for establishing coordination of this character from the earliest stages was to prevent, so far as was possible, the Bulgarian Government being faced with double claims leading to the possibility of double damages” (footnote [1033] 363 above), p. 106.
[1979] 706 See Nuclear Tests (Australia v. France) and (New Zealand v. France) (footnote [738] 196 above), pp. 256 and 460, respectively.
484 Article 46
one injured State claiming compensation on its own account or on account of its nationals, evidently each State will be limited to the damage actually suffered. Circumstances might also arise in which several States injured by the same act made incompatible claims. For example, one State may claim restitution whereas the other may prefer compensation. If restitution is indivisible in such a case and the election of the second State is valid, it may be that compensation is appropriate in respect of both claims.[1980] 707 In any event, two injured States each claiming in respect of the same wrongful act would be expected to coordinate their claims so as to avoid double recovery. As ICJ pointed out in its advisory opinion on Reparation for Injuries, “International tribunals are already familiar with the problem of a claim in which two or more national States are interested, and they know how to protect the defendant State in such a case”.[1981] 708
[1980] 707 Cf. Forests of Central Rhodopia, where the arbitrator declined to award restitution, inter alia, on the ground that not all the persons or entities interested in restitution had claimed (footnote [1058] 382 above), p. 1432.
[1981] 708 Reparation for Injuries (footnote [32] 38 above), p. 186.
485
Article 47. Plurality of responsible States
1. Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.
2. Paragraph 1:
(a) does not permit any injured State to recover, by way of compensation, more than the damage it has suffered;
(b) is without prejudice to any right of recourse against the other responsible States.
Commentary
(1) Article 47 deals with the situation where there is a plurality of responsible States in respect of the same wrongful act. It states the general principle that in such cases each State is separately responsible for the conduct attributable to it, and that responsibility is not diminished or reduced by the fact that one or more other States are also responsible for the same act.
(2) Several States may be responsible for the same internationally wrongful act in a range of circumstances. For example, two or more States might combine in carrying out together an internationally wrongful act in circumstances where they may be regarded as acting jointly in respect of the entire operation. In that case the injured State can hold each responsible State to account for the wrongful conduct as a whole. Or two States may act through a common organ which carries out the conduct in question, e.g. a joint authority responsible for the management of a boundary river. Or one State may direct and control another State in the commission of the same internationally wrongful act by the latter, such that both are responsible for the act.[1982] 709
(3) It is important not to assume that internal law concepts and rules in this field can be applied directly to international law. Terms such as “joint”, “joint and several” and “solidary” responsibility derive from different legal traditions[1983] 710 and analogies must be applied with care. In international law, the general principle in the case of a plurality of responsible States is that each State is separately responsible for conduct attributable to it in the sense of article 2. The principle of independent responsibility reflects the position under general international law, in the absence of agreement to the contrary between the States concerned.[1984] 711 In the application of that principle, however, the situation can arise where a single course of conduct is at the same time attributable to several States and is internationally wrongful for each of them. It is to such cases that article 47 is addressed.
(4) In the Certain Phosphate Lands in Nauru case,[1985] 712 Australia, the sole respondent, had administered Nauru as a trust territory under the Trusteeship Agreement on behalf of the three States concerned. Australia argued that it could not be sued alone by Nauru, but only jointly with the other two States concerned. Australia argued that the two States were necessary parties to the case and that in accordance with the principle formulated in
[1982] 709 See article 17 and commentary.
[1983] 710 For a comparative survey of internal laws on solidary or joint liability, see T. Weir, loc. cit. (footnote [1258] 471 above), vol. XI, especially pp. 43–44, sects. 79–81.
[1984] 711 See paragraphs (1) to (5) of the introductory commentary to chapter IV of Part One.
[1985] 712 See footnote [777] 230 above.
486 Article 47
Monetary Gold,[1986] 713 the claim against Australia alone was inadmissible. It also argued that the responsibility of the three States making up the Administering Authority was “solidary” and that a claim could not be made against only one of them. The Court rejected both arguments. On the question of “solidary” responsibility it said:
Australia has raised the question whether the liability of the three States would be “joint and several” (solidaire), so that any one of the three would be liable to make full reparation for damage flowing from any breach of the obligations of the Administering Authority, and not merely a one-third or some other proportionate share. This … is independent of the question whether Australia can be sued alone. The Court does not consider that any reason has been shown why a claim brought against only one of the three States should be declared inadmissible in limine litis merely because that claim raises questions of the administration of the Territory, which was shared with two other States. It cannot be denied that Australia had obligations under the Trusteeship Agreement, in its capacity as one of the three States forming the Administering Authority, and there is nothing in the character of that Agreement which debars the Court from considering a claim of a breach of those obligations by Australia. [1987] 714
The Court was careful to add that its decision on jurisdiction “does not settle the question whether reparation would be due from Australia, if found responsible, for the whole or only for part of the damage Nauru alleges it has suffered, regard being had to the characteristics of the Mandate and Trusteeship Systems … and, in particular, the special role played by Australia in the administration of the Territory”.[1988] 715
(5) The extent of responsibility for conduct carried on by a number of States is sometimes addressed in treaties.[1989] 716 A well-known example is the Convention on International Liability for Damage Caused by Space Objects . Article IV, paragraph 1, provides expressly for “joint and several liability” where damage is suffered by a third State as a result of a collision between two space objects launched by two States. In some cases liability is strict; in others it is based on fault. Article IV, paragraph 2, provides:
In all cases of joint and several liability referred to in paragraph 1 … the burden of compensation for the damage shall be apportioned between the first two States in accordance with the extent to which they were at fault; if the extent of the fault of each of these States cannot be established, the burden of compensation shall be apportioned equally between them. Such apportionment shall be without prejudice to the right of the third State to seek the entire compensation due under this Convention from any or all of the launching States which are jointly and severally liable.[1990] 717
[1986] 713 See footnote [917] 286 above. See also paragraph (11) of the commentary to article 16.
[1987] 714 Certain Phosphate Lands in Nauru, Preliminary Objections (footnote [777] 230 above), pp. 258–259, para. 48.
[1988] 715 Ibid., p. 262, para. 56. The case was subsequently withdrawn by agreement, Australia agreeing to pay by instalments an amount corresponding to the full amount of Nauru’s claim. Subsequently, the two other Governments agreed to contribute to the payments made under the settlement. See Certain Phosphate Lands in Nauru, Order (footnote [779] 232 above) and the settlement agreement (ibid.).
[1989] 716 A special case is the responsibility of the European Union and its member States under “mixed agreements”, where the Union and all or some members are parties in their own name. See, e.g., annex IX to the United Nations Convention on the Law of the Sea. Generally on mixed agreements, see, e.g., A. Rosas, “Mixed Union—mixed agreements”, International Law Aspects of the European Union, M. Koskenniemi, ed. (The Hague, Kluwer, 1998), p. 125.
[1990] 717 See also article V, paragraph 2, which provides for indemnification between States which are jointly and severally liable.
Article 47 487
This is clearly a lex specialis, and it concerns liability for lawful conduct rather than responsibility in the sense of the present articles.[1991] 718 At the same time, it indicates what a regime of “joint and several” liability might amount to so far as an injured State is concerned.
(6) According to paragraph 1 of article 47, where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act. The general rule in international law is that of separate responsibility of a State for its own wrongful acts and paragraph 1 reflects this general rule. Paragraph 1 neither recognizes a general rule of joint and several responsibility, nor does it exclude the possibility that two or more States will be responsible for the same internationally wrongful act. Whether this is so will depend on the circumstances and on the international obligations of each of the States concerned.
(7) Under paragraph 1 of article 47, where several States are each responsible for the same internationally wrongful act, the responsibility of each may be separately invoked by an injured State in the sense of article 42. The consequences that flow from the wrongful act, for example in terms of reparation, will be those which flow from the provisions of Part Two in relation to that State.
(8) Article 47 only addresses the situation of a plurality of responsible States in relation to the same internationally wrongful act. The identification of such an act will depend on the particular primary obligation, and cannot be prescribed in the abstract. Of course, situations can also arise where several States by separate internationally wrongful conduct have contributed to causing the same damage. For example, several States might contribute to polluting a river by the separate discharge of pollutants. In the Corfu Channel incident, it appears that Yugoslavia actually laid the mines and would have been responsible for the damage they caused. ICJ held that Albania was responsible to the United Kingdom for the same damage on the basis that it knew or should have known of the presence of the mines and of the attempt by the British ships to exercise their right of transit, but failed to warn the ships.[1992] 719 Yet, it was not suggested that Albania’s responsibility for failure to warn was reduced, let alone precluded, by reason of the concurrent responsibility of a third State. In such cases, the responsibility of each participating State is determined individually, on the basis of its own conduct and by reference to its own international obligations.
(9) The general principle set out in paragraph 1 of article 47 is subject to the two provisos set out in paragraph 2. Subparagraph (a) addresses the question of double recovery by the injured State. It provides that the injured State may not recover, by way of compensation, more than the damage suffered.[1993] 720 This provision is designed to protect the responsible States, whose obligation to compensate is limited by the damage suffered. The principle is only concerned to ensure against the actual recovery of more than the amount of the damage. It would not exclude simultaneous awards against two or more responsible States,
[1991] 718 See paragraph 4 of the introductory commentary for the distinction between international responsibility for wrongful acts and international liability arising from lawful conduct.
[1992] 719 Corfu Channel, Merits (footnote [29] 35 above), pp. 22–23.
[1993] 720 Such a principle was affirmed, for example, by Permanent Court of International Justice in the Case concerning the Factory at Chorzów, Merits case (footnote [28] 34 above), when it held that a remedy sought by Germany could not be granted “or the same compensation would be awarded twice over” (p. 59); see also ibid., pages 45 and 49.
488 Article 47
but the award would be satisfied so far as the injured State is concerned by payment in full made by any one of them.
(10) The second proviso, in subparagraph (b), recognizes that where there is more than one responsible State in respect of the same injury, questions of contribution may arise between them. This is specifically envisaged, for example, in articles IV, paragraph 2, and V, paragraph 2, of the Convention on International Liability for Damage Caused by Space Objects. On the other hand, there may be cases where recourse by one responsible State against another should not be allowed. Subparagraph (b) does not address the question of contribution among several States which are responsible for the same wrongful act; it merely provides that the general principle stated in paragraph 1 is without prejudice to any right of recourse which one responsible State may have against any other responsible State.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal
In the Matter of an Arbitration before a Tribunal Constituted in Accordance with Article 19 of the Treaty between the French Republic and the United Kingdom of Great Britain and Northern Ireland Concerning the Construction and Operation by Private Concessionaries of a Channel Fixed Link Signed at Canterbury on 12 February 1986 between 1. The Channel Tunnel Group Limited 2. France-Manche S.A. and 1. The Secretary of State for Transport of the Government of the United Kingdom of Great Britain and Northern Ireland 2. Le Ministre de l’équipement, des transports, de l’aménagement du territoire, du tourisme et de la mer du Gouvernement de la République Française (hereinafter the “partial award in the Eurotunnel case”)
In its 2007 partial award in the Eurotunnel case, the arbitral tribunal constituted to hear the case, in examining the Claimants’ thesis of the “joint and several responsibility” of the Respondents (France and the United Kingdom) for the violation of the Treaty concerning the Construction and Operation by Private Concessionaires of a Channel Fixed Link (the “Treaty of Canterbury”) and the Concession Agreement that followed, referred to article 47 finally adopted by the International Law Commission in 2001, and the commentary thereto:
173. It is helpful to start with Article 47 of the ILC Articles on State Responsibility, to which all Parties referred in argument … .
174. As the commentary notes:
The general rule in international law is that of separate responsibility of a State for its own wrongful acts and paragraph 1 reflects this general rule. Paragraph 1 neither recognizes a general rule of joint and several or solidary responsibility, nor does it exclude the possibility that two or more States will be responsible for the same internationally wrongful act. Whether this is so will depend on the circumstances and on the international obligations of each of the States concerned.[1994] 12
[A/62/62/Add.1, para. 8]
[1994] 12 Partial Award in the Eurotunnel case, paras. 173–174.
Article 47 489
Committee on the Rights of the Child
Sacchi et al. v. Argentina, Brazil, France, Germany and Turkey
In five cases—Sacchi et al. v. Argentina,[1995] 228 Brazil,[1996] 229 France,[1997] 230 Germany[1998] 231 and Turkey[1999] 232 respectively—concerning the legal implications of climate change, the Committee on the Rights of the Child referred to the commentary to article 47, finding that “the collective nature of the causation of climate change does not absolve the State party of its individual responsibility that may derive from the harm that the emissions originating within its territory may cause to children, whatever their location”.
[A/77/74, p. 37]
International Court of Justice
Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda)
In its judgment on reparations in Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), the International Court of Justice referred to the commentary to articles 31 and 47, noting that “in certain situations in which multiple causes attributable to two or more actors have resulted in injury, a single actor may be required to make full reparation for the damage suffered … . In other situations, in which the conduct of multiple actors has given rise to injury, responsibility for part of such injury should instead be allocated among those actors”.[2000] 233
[A/77/74, p. 38]
[1995] 228 Sacchi et al. v. Argentina (CRC/C/88/D/104/2019), para. 10.10.
[1996] 229 Sacchi et al. v. Brazil (CRC/C/88/D/105/2019), para. 10.10.
[1997] 230 Sacchi et al. v. France (CRC/C/88/D/106/2019), para. 10.10.
[1998] 231 Sacchi et al. v. Germany (CRC/C/88/D/107/2019), para. 9.10.
[1999] 232 Sacchi et al. v. Turkey (CRC/C/88/D/108/2019), para. 9.10.
[2000] 233 See footnote [1410] 160 above, para. 98.
490
Article 48. Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1.
Commentary
(1) Article 48 complements the rule contained in article 42. It deals with the invocation of responsibility by States other than the injured State acting in the collective interest. A State which is entitled to invoke responsibility under article 48 is acting not in its individual capacity by reason of having suffered injury, but in its capacity as a member of a group of States to which the obligation is owed, or indeed as a member of the international community as a whole. The distinction is underlined by the phrase “[a]ny State other than an injured State” in paragraph 1 of article 48.
(2) Article 48 is based on the idea that in case of breaches of specific obligations protecting the collective interests of a group of States or the interests of the international community as a whole, responsibility may be invoked by States which are not themselves injured in the sense of article 42. Indeed, in respect of obligations to the international community as a whole, ICJ specifically said as much in its judgment in the Barcelona Traction case.[2001] 721 Although the Court noted that “all States can be held to have a legal interest in” the fulfilment of these rights, article 48 refrains from qualifying the position of the States identified in article 48, for example by referring to them as “interested States”. The term “legal interest” would not permit a distinction between articles 42 and 48, as injured States in the sense of article 42 also have legal interests.
(3) As to the structure of article 48, paragraph 1 defines the categories of obligations which give rise to the wider right to invoke responsibility. Paragraph 2 stipulates which forms of responsibility States other than injured States may claim. Paragraph 3 applies the requirements of invocation contained in articles 43, 44 and 45 to cases where responsibility is invoked under article 48, paragraph 1.
[2001] 721 Barcelona Traction (footnote [46] 52 above), p. 32, para. 33.
Article 48 491
(4) Paragraph 1 refers to “[a]ny State other than an injured State”. In the nature of things, all or many States will be entitled to invoke responsibility under article 48, and the term “[a]ny State” is intended to avoid any implication that these States have to act together or in unison. Moreover, their entitlement will coincide with that of any injured State in relation to the same internationally wrongful act in those cases where a State suffers individual injury from a breach of an obligation to which article 48 applies.
(5) Paragraph 1 defines the categories of obligations, the breach of which may entitle States other than the injured State to invoke State responsibility. A distinction is drawn between obligations owed to a group of States and established to protect a collective interest of the group (paragraph 1 (a)), and obligations owed to the international community as a whole (paragraph 1 (b)).[2002] 722
(6) Under paragraph 1 (a), States other than the injured State may invoke responsibility if two conditions are met: first, the obligation whose breach has given rise to responsibility must have been owed to a group to which the State invoking responsibility belongs; and secondly, the obligation must have been established for the protection of a collective interest. The provision does not distinguish between different sources of international law; obligations protecting a collective interest of the group may derive from multilateral treaties or customary international law. Such obligations have sometimes been referred to as “obligations erga omnes partes”.
(7) Obligations coming within the scope of paragraph 1 (a) have to be “collective obligations”, i.e. they must apply between a group of States and have been established in some collective interest.[2003] 723 They might concern, for example, the environment or security of a region (e.g. a regional nuclear free zone treaty or a regional system for the protection of human rights). They are not limited to arrangements established only in the interest of the member States but would extend to agreements established by a group of States in some wider common interest.[2004] 724 But in any event the arrangement must transcend the sphere of bilateral relations of the States parties. As to the requirement that the obligation in question protect a collective interest, it is not the function of the articles to provide an enumeration of such interests. If they fall within paragraph 1 (a), their principal purpose will be to foster a common interest, over and above any interests of the States concerned individually. This would include situations in which States, attempting to set general standards of protection for a group or people, have assumed obligations protecting non-State entities.[2005] 725
[2002] 722 For the extent of responsibility for serious breaches of obligations to the international community as a whole, see Part Two, chap. III and commentary.
[2003] 723 See also paragraph (11) of the commentary to article 42.
[2004] 724 In the S.S. “Wimbledon” (footnote [28] 34 above), the Court noted “[t]he intention of the authors of the Treaty of Versailles to facilitate access to the Baltic by establishing an international regime, and consequently to keep the canal open at all times to foreign vessels of every kind” (p. 23).
[2005] 725 Article 22 of the Covenant of the League of Nations, establishing the Mandate system, was a provision in the general interest in this sense, as were each of the Mandate agreements concluded in accordance with it. Cf., however, the much-criticized decision of ICJ in South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 6, from which article 48 is a deliberate departure.
492 Article 48
(8) Under paragraph 1 (b), States other than the injured State may invoke responsibility if the obligation in question was owed “to the international community as a whole”.[2006]726 The provision intends to give effect to the statement by ICJ in the Barcelona Traction case, where the Court drew “an essential distinction” between obligations owed to particular States and those owed “towards the international community as a whole”.[2007] 727 With regard to the latter, the Court went on to state that “[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes”.
(9) While taking up the essence of this statement, the articles avoid use of the term “obligations erga omnes”, which conveys less information than the Court’s reference to the international community as a whole and has sometimes been confused with obligations owed to all the parties to a treaty. Nor is it the function of the articles to provide a list of those obligations which under existing international law are owed to the international community as a whole. This would go well beyond the task of codifying the secondary rules of State responsibility, and in any event, such a list would be only of limited value, as the scope of the concept will necessarily evolve over time. The Court itself has given useful guidance: in its 1970 judgment it referred, by way of example, to “the outlawing of acts of aggression, and of genocide” and to “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”.[2008] 728 In its judgment in the East Timor case, the Court added the right of self-determination of peoples to this list.[2009] 729
(10) Each State is entitled, as a member of the international community as a whole, to invoke the responsibility of another State for breaches of such obligations. Whereas the category of collective obligations covered by paragraph 1 (a) needs to be further qualified by the insertion of additional criteria, no such qualifications are necessary in the case of paragraph 1 (b). All States are by definition members of the international community as a whole, and the obligations in question are by definition collective obligations protecting interests of the international community as such. Of course, such obligations may at the same time protect the individual interests of States, as the prohibition of acts of aggression protects the survival of each State and the security of its people. Similarly, individual States may be specially affected by the breach of such an obligation, for example a coastal State specially affected by pollution in breach of an obligation aimed at protection of the marine environment in the collective interest.
(11) Paragraph 2 specifies the categories of claim which States may make when invoking responsibility under article 48. The list given in the paragraph is exhaustive, and invocation of responsibility under article 48 gives rise to a more limited range of rights as compared to those of injured States under article 42. In particular, the focus of action by a State under article 48—such State not being injured in its own right and therefore not claiming compensation on its own account—is likely to be on the very question whether a
[2006] 726 For the terminology “international community as a whole”, see paragraph (18) of the commentary to article 25.
[2007] 727 Barcelona Traction (footnote [46] 52 above), p. 32, para. 33, and see paragraphs (2) to (6) of the commentary to chapter III of Part Two.
[2008] 728 Barcelona Traction (ibid.), p. 32, para. 34.
[2009] 729 See footnote [48] 54 above.
Article 48 493
State is in breach and on cessation if the breach is a continuing one. For example, in the S.S. “Wimbledon” case, Japan which had no economic interest in the particular voyage sought only a declaration, whereas France, whose national had to bear the loss, sought and was awarded damages.[2010] 730 In the South West Africa cases, Ethiopia and Liberia sought only declarations of the legal position.[2011] 731 In that case, as the Court itself pointed out in 1971, “the injured entity” was a people, viz. the people of South West Africa.[2012] 732
(12) Under paragraph 2 (a), any State referred to in article 48 is entitled to request cessation of the wrongful act and, if the circumstances require, assurances and guarantees of non-repetition under article 30. In addition, paragraph 2 (b) allows such a State to claim from the responsible State reparation in accordance with the provisions of chapter II of Part Two. In case of breaches of obligations under article 48, it may well be that there is no State which is individually injured by the breach, yet it is highly desirable that some State or States be in a position to claim reparation, in particular restitution. In accordance with paragraph 2 (b), such a claim must be made in the interest of the injured State, if any, or of the beneficiaries of the obligation breached. This aspect of article 48, paragraph 2, involves a measure of progressive development, which is justified since it provides a means of protecting the community or collective interest at stake. In this context it may be noted that certain provisions, for example in various human rights treaties, allow invocation of responsibility by any State party. In those cases where they have been resorted to, a clear distinction has been drawn between the capacity of the applicant State to raise the matter and the interests of the beneficiaries of the obligation.[2013] 733 Thus, a State invoking responsibility under article 48 and claiming anything more than a declaratory remedy and cessation may be called on to establish that it is acting in the interest of the injured party. Where the injured party is a State, its Government will be able authoritatively to represent that interest. Other cases may present greater difficulties, which the present articles cannot solve.[2014] 734 Paragraph 2 (b) can do no more than set out the general principle.
(13) Paragraph 2 (b) refers to the State claiming “[p]erformance of the obligation of reparation in accordance with the preceding articles”. This makes it clear that article 48 States may not demand reparation in situations where an injured State could not do so. For example, a demand for cessation presupposes the continuation of the wrongful act; a demand for restitution is excluded if restitution itself has become impossible.
(14) Paragraph 3 subjects the invocation of State responsibility by States other than the injured State to the conditions that govern invocation by an injured State, specifically article 43 (notice of claim), 44 (admissibility of claims) and 45 (loss of the right to invoke responsibility). These articles are to be read as applicable equally, mutatis mutandis, to a State invoking responsibility under article 48.
[2010] 730 S.S. “Wimbledon” (footnote [28] 34 above), p. 30.
[2011] 731 South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 319; South West Africa, Second Phase, Judgment. (See footnote [2005] 725 above.)
[2012] 732 Namibia case (footnote [690] 176 above), p. 56, para. 127.
[2013] 733 See, e.g., the observations of the European Court of Human Rights in Denmark v. Turkey (friendly settlement), judgment of 5 April 2000, Reports of Judgments and Decisions 2000-IV, pp. 7, 10 and 11, paras. 20 and 23.
[2014] 734 See also paragraphs (3) to (4) of the commentary to article 33.
494 Article 48
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
World Trade Organization panel
European Communities—Regime for the Importation, Sale and Distribution of Bananas
In its 1997 reports on European Communities—Regime for the Importation, Sale and Distribution of Bananas, the WTO panel referred, inter alia, to paragraph 2 (f) of draft article 40 (Meaning of injured State) adopted by the International Law Commission on first reading. The relevant passage is [summarized on pages 467–468] above.
[A/62/62, para. 124]
International Tribunal for the Former Yugoslavia
Prosecutor v. Tihomir Blaškić (“Lasva Valley”)
In its 1997 judgement on the request of the Republic of Croatia for review of the decision of Trial Chamber II of 18 July 1997 in the Blaškić case, the Appeals Chamber noted that article 29 of the Statute of the Tribunal
does not create bilateral relations. Article 29 [of the Statute] imposes an obligation on Member States towards all other Members or, in other words, an “obligation erga omnes partes”. By the same token, article 29 posits a community interest in its observance. In other words, every Member State of the United Nations has a legal interest in the fulfilment of the obligation laid down in article 29 (on the manner in which this legal interest can be exercised … ).[2015] 219
In a first footnote accompanying this text, the Appeals Chamber observed:
As is well known, in the Barcelona Traction, Power & Light Co. case, the International Court of Justice mentioned obligations of States “towards the international community as a whole” and defined them as obligations erga omnes (I.C.J. Reports 1970, p. 33, para. 33). The International Law Commission has rightly made a distinction between such obligations and those erga omnes partes (Yearbook of the International Law Commission, 1992, vol. II, Part Two, p. 39, para. 269). This distinction was first advocated by the Special Rapporteur, G. Arangio-Ruiz, in his third report on State responsibility (see Yearbook … , 1991, vol. II, Part One, p. 35, para. 121; see also his fourth report, ibid., 1992, vol. II, Part One, p. 34, para. 92).[2016] 220
In a second footnote, it added, with regard to the obligation under article 29 of the Statute:
… The fact that the obligation is incumbent on all States while the correlative “legal interest” is only granted to Member States of the United Nations should not be surprising. Only the latter category encompasses the “injured States” entitled to claim the cessation of any breach of article 29 or to promote the taking of remedial measures. See on this matter article 40 of the draft articles on State responsibility adopted on first reading by the International Law Commission (former art. 5 of Part Two). It provides as follows in para. 2 (c): “[injured State means] if the right infringed by the act of a State arises from a binding decision of an international organ other than an international court
[2015] 219 International Tribunal for the Former Yugoslavia, Appeals Chamber, Prosecutor v. Tihomir Blaškić (“Lasva Valley”), Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95–14, 29 October 1997, para. 26 (footnotes omitted). (See footnote [52] 8 above.)
[2016] 220 Ibid., para. 26, footnote 33.
Article 48 495
or tribunal, the State or States which, in accordance with the constituent instrument of the international organization concerned, are entitled to the benefit of that right”, in Official Records of the General Assembly, Fifty-first Session, Supplement No. 10 (A/51/10).[2017] 221
[A/62/62, para. 125]
International Tribunal for the Law of the Sea (Seabed Disputes Chamber)
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area
In its advisory opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, the Seabed Disputes Chamber con[
2017] 221 Ibid., para. 26, footnote 34. Draft article 40, as adopted on first reading, read as follows:
Article 40
Meaning of injured State
1. For the purposes of the present articles, “injured State” means any State a right of which is infringed by the act of another State, if that act constitutes, in accordance with Part One, an internationally wrongful act of that State.
2. In particular, “injured State” means:
(a) If the right infringed by the act of a State arises from a bilateral treaty, the other Statezparty to the treaty;
(b) If the right infringed by the act of a State arises from a judgement or other binding dispute settlement decision of an international court or tribunal, the other State or States parties to the dispute and entitled to the benefit of that right;
(c) If the right infringed by the act of a State arises from a binding decision of an international organ other than an international court or tribunal, the State or States which, in accordance with the constituent instrument of the international organization concerned, are entitled to the benefit of that right;
(d) If the right infringed by the act of a State arises from a treaty provision for a third State, that third State;
(e) If the right infringed by the act of a State arises from a multilateral treaty or from a rule of customary international law, any other State party to the multilateral treaty or bound by the relevant rule of customary international law, if it is established that:
(i) The right has been created or is established in its favour;
(ii) The infringement of the right by the act of a State necessarily affects the enjoyment of the rights or the performance of the obligations of the other States parties to the multilateral treaty or bound by the rule of customary international law; or
(iii) The right has been created or is established for the protection of human rights and fundamental freedoms;
(f) If the right infringed by the act of a State arises from a multilateral treaty, any other State party to the multilateral treaty, if it is established that the right has been expressly stipulated in that treaty for the protection of the collective interests of the States parties thereto.
3. In addition, “injured State” means, if the internationally wrongful act constitutes an international crime, all other States. (Yearbook … 1996, vol. II (Part Two), para. 65.)
In the articles finally adopted in 2001, the International Law Commission followed a different approach in which it distinguished, for purposes of invocation of responsibility, the position of the injured State, defined narrowly (article 42), and that of States other than injured State (article 48). The passages of the judgement of the Appeals Chamber reproduced in the text concern the latter category of States and this is the reason why they are reproduced here with reference to article 48.
496 Article 48
sidered which subjects were entitled to claim compensation for “damage to the Area and its resources constituting the common heritage of mankind, and damage to the marine environment”.[2018] 198 It expressed the opinion that while,
[n]o provision of the Convention can be read as explicitly entitling the Authority to make such a claim[, it] may, however, be argued that such entitlement is implicit in article 137, paragraph 2, of the Convention, which states that the Authority shall act ‘on behalf’ of mankind. Each State Party may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area. In support of this view, reference may be made to article 48 of the ILC Articles on State Responsibility … .[2019] 199
[A/68/72, para. 138]
International Court of Justice
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom and Marshall Islands v. India)
In Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament between Marshall Islands v. United Kingdom and Marshall Islands v. India, the International Court of Justice stated that “Article 48, paragraph 3, applies that requirement [to give notice of a claim under Article 43 of the State responsibility articles] mutatis mutandis to a State other than an injured State which invokes responsibility”.[2020] 248
[A/74/83, p. 42]
[Inter-American Court of Human Rights
The Obligations in Matters of Human Rights of a State that has Denounced the American Convention on Human Rights and the Charter of the Organization of American States (Interpretation and Scope of articles 1, 2, 27, 29, 30, 31, 32, 33 to 65 and 78 of the American Convention on Human Rights and 3(l), 17, 45, 53, 106 and 143 of the Charter of the Organization of American States)
In an advisory opinion concerning the effects of a State’s denunciation of the American Convention on Human Rights, the Inter-American Court of Human Rights, in an analysis of jus cogens norms, cited articles 40, 41 and 48 and the commentary to article 40, indicating that the obligations contained in article 40 “arise from those substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values”.[2021] 222
[A/77/74, p. 36]]
[2018] 198 See footnote [12] 10 above, para. 179.
[2019] 199 Ibid., para. 180.
[2020] 248 ICJ, Judgment, 5 October 2016, para. 42.
[2021] [222 IACHR, Series A, No. 26, Advisory Opinion No. OC-26/20, 9 November 2020, paras. 103–104.]
497
Chapter II
COUNTERMEASURES
Commentary
(1) This chapter deals with the conditions for and limitations on the taking of countermeasures by an injured State. In other words, it deals with measures, which would otherwise be contrary to the international obligations of an injured State vis-à-vis the responsible State. They were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation. Countermeasures are a feature of a decentralized system by which injured States may seek to vindicate their rights and to restore the legal relationship with the responsible State which has been ruptured by the internationally wrongful act.
(2) It is recognized both by Governments and by the decisions of international tribunals that countermeasures are justified under certain circumstances.[2022] 735 This is reflected in article 23 which deals with countermeasures in response to an internationally wrongful act in the context of the circumstances precluding wrongfulness. Like other forms of self-help, countermeasures are liable to abuse and this potential is exacerbated by the factual inequalities between States. Chapter II has as its aim to establish an operational system, taking into account the exceptional character of countermeasures as a response to internationally wrongful conduct. At the same time, it seeks to ensure, by appropriate conditions and limitations, that countermeasures are kept within generally acceptable bounds.
(3) As to terminology, traditionally the term “reprisals” was used to cover otherwise unlawful action, including forcible action, taken by way of self-help in response to a breach.[2023] 736 More recently, the term “reprisals” has been limited to action taken in time of international armed conflict; i.e. it has been taken as equivalent to belligerent reprisals. The term “countermeasures” covers that part of the subject of reprisals not associated with armed conflict, and in accordance with modern practice and judicial decisions the term is used in that sense in this chapter.[2024] 737 Countermeasures are to be contrasted with retorsion, i.e. “unfriendly” conduct which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act. Acts of retorsion may include the prohibition of or limitations upon normal diplomatic
[2022] 735 For the substantial literature, see the bibliographies in E. Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (Dobbs Ferry, N.Y., Transnational, 1984), pp. 179–189; O. Y. Elagab, The Legality of Non-Forcible Counter-Measures in International Law (Oxford, Clarendon Press, 1988), pp. 227–241; L.-A. Sicilianos, Les réactions décentralisées à l’illicite: Des contre-mesures à la légitime défense (Paris, Librairie générale de droit et de jurisprudence, 1990), pp. 501–525; and D. Alland, Justice privée et ordre juridique international: Etude théorique des contre-mesures en droit international public (Paris, Pedone, 1994).
[2023] 736 See, e.g., E. de Vattel, The Law of Nations, or the Principles of Natural Law (footnote [1070] 394 above), vol. II, chap. XVIII, p. 342.
[2024] 737 Air Service Agreement (footnotes [992] 339 and [1944] 213 above), p. 443, para. 80; United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), p. 27, para. 53; Military and Paramilitary Activities in and against Nicaragua (footnote [30] 36 above), at p. 106, para. 201; and Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 55, para. 82.
498 Part Three, Chapter II
relations or other contacts, embargoes of various kinds or withdrawal of voluntary aid programmes. Whatever their motivation, so long as such acts are not incompatible with the international obligations of the States taking them towards the target State, they do not involve countermeasures and they fall outside the scope of the present articles. The term “sanction” is also often used as equivalent to action taken against a State by a group of States or mandated by an international organization. But the term is imprecise: Chapter VII of the Charter of the United Nations refers only to “measures”, even though these can encompass a very wide range of acts, including the use of armed force (Articles 39, 41 and 42). Questions concerning the use of force in international relations and of the legality of belligerent reprisals are governed by the relevant primary rules. On the other hand, the articles are concerned with countermeasures as referred to in article 23. They are taken by an injured State in order to induce the responsible State to comply with its obligations under Part Two. They are instrumental in character and are appropriately dealt with in Part Three as an aspect of the implementation of State responsibility.
(4) Countermeasures are to be clearly distinguished from the termination or suspension of treaty relations on account of the material breach of a treaty by another State, as provided for in article 60 of the 1969 Vienna Convention. Where a treaty is terminated or suspended in accordance with article 60, the substantive legal obligations of the States parties will be affected, but this is quite different from the question of responsibility that may already have arisen from the breach.[2025] 738 Countermeasures involve conduct taken in derogation from a subsisting treaty obligation but justified as a necessary and proportionate response to an internationally wrongful act of the State against which they are taken. They are essentially temporary measures, taken to achieve a specified end, whose justification terminates once the end is achieved.
(5) This chapter does not draw any distinction between what are sometimes called “reciprocal countermeasures” and other measures. That term refers to countermeasures which involve suspension of performance of obligations towards the responsible State “if such obligations correspond to, or are directly connected with, the obligation breached”.[2026] 739 There is no requirement that States taking countermeasures should be limited to suspension of performance of the same or a closely related obligation.[2027] 740 A number of considerations support this conclusion. First, for some obligations, for example those concerning the protection of human rights, reciprocal countermeasures are inconceivable. The obligations in question have a non-reciprocal character and are not only due to other States but to the individuals themselves.[2028] 741 Secondly, a limitation to reciprocal countermeasures assumes that the injured State will be in a position to impose the same or related measures as the responsible State, which may not be so. The obligation may be a unilateral one or the injured State may already have performed its side of the bargain. Above all, considerations of good order and humanity preclude many measures of a reciprocal nature. This conclu[
2025] 738 On the respective scope of the codified law of treaties and the law of State responsibility, see paragraphs (3) to (7) of the introductory commentary to chapter V of Part One.
[2026] 739 See the sixth report of the Special Rapporteur on State responsibility, William Riphagen, article 8 of Part Two of the draft articles, Yearbook … 1985, vol. II (Part One), p. 10, document A/CN.4/389.
[2027] 740 Contrast the exception of non-performance in the law of treaties, which is so limited: see paragraph (9) of the introductory commentary to chapter V of Part One.
[2028] 741 Cf. Ireland v. United Kingdom (footnote [800] 236 above).
Part Three, Chapter II 499
sion does not, however, end the matter. Countermeasures are more likely to satisfy the requirements of necessity and proportionality if they are taken in relation to the same or a closely related obligation, as in the Air Service Agreement arbitration.[2029] 742
(6) This conclusion reinforces the need to ensure that countermeasures are strictly limited to the requirements of the situation and that there are adequate safeguards against abuse. Chapter II seeks to do this in a variety of ways. First, as already noted, it concerns only non-forcible countermeasures (art. 50, para. 1 (a)). Secondly, countermeasures are limited by the requirement that they be directed at the responsible State and not at third parties (art. 49, paras. 1 and 2). Thirdly, since countermeasures are intended as instrumental—in other words, since they are taken with a view to procuring cessation of and reparation for the internationally wrongful act and not by way of punishment—they are temporary in character and must be as far as possible reversible in their effects in terms of future legal relations between the two States (arts. 49, paras. 2 and 3, and 53). Fourthly, countermeasures must be proportionate (art. 51). Fifthly, they must not involve any departure from certain basic obligations (art. 50, para. 1), in particular those under peremptory norms of general international law.
(7) This chapter also deals to some extent with the conditions of the implementation of countermeasures. In particular, countermeasures cannot affect any dispute settlement procedure which is in force between the two States and applicable to the dispute (art. 50, para. 2 (a)). Nor can they be taken in such a way as to impair diplomatic or consular inviolability (art. 50, para. 2 (b)). Countermeasures must be preceded by a demand by the injured State that the responsible State comply with its obligations under Part Two, must be accompanied by an offer to negotiate, and must be suspended if the internationally wrongful act has ceased and the dispute is submitted in good faith to a court or tribunal with the authority to make decisions binding on the parties (art. 52, para. 3).
(8) The focus of the chapter is on countermeasures taken by injured States as defined in article 42. Occasions have arisen in practice of countermeasures being taken by other States, in particular those identified in article 48, where no State is injured or else on behalf of and at the request of an injured State. Such cases are controversial and the practice is embryonic. This chapter does not purport to regulate the taking of countermeasures by States other than the injured State. It is, however, without prejudice to the right of any State identified in article 48, paragraph 1, to take lawful measures against a responsible State to ensure cessation of the breach and reparation in the interest of the injured State or the beneficiaries of the obligation breached (art. 54).
(9) In common with other chapters of these articles, the provisions on countermeasures are residual and may be excluded or modified by a special rule to the contrary (see article 55). Thus, a treaty provision precluding the suspension of performance of an obligation under any circumstances will exclude countermeasures with respect to the performance of the obligation. Likewise, a regime for dispute resolution to which States must resort in the event of a dispute, especially if (as with the WTO dispute settlement system) it requires an authorization to take measures in the nature of countermeasures in response to a proven breach.[2030] 743
[2029] 742 See footnotes [992] 339 and [1944] 213 above.
[2030] 743 See Marrakesh Agreement establishing the World Trade Organization, annex 2 (Understanding on Rules and Procedures governing the Settlement of Disputes), arts. 1, 3, para. 7, and 22.
500 Part Three, Chapter II
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International Court of Justice
Gabčíkovo-Nagymaros Project (Hungary/Slovakia)
In its 1997 judgment in the Gabčíkovo-Nagymaros Project case, the Court relied, inter alia, on draft articles 47 to 50, as adopted by the International Law Commission on first reading,[2031] 222 to establish the conditions relating to resort to countermeasures:
In order to be justifiable, a countermeasure must meet certain conditions (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment, I.C.J. Reports 1986, p. 127, para. 249. See also Arbitral Award of 9 December 1978 in the case concerning the Air Service Agreement of 27 March 1946 between the United States of America and France, United Nations, Reports of International Arbitral Awards (RIAA), vol. XVIII, pp. 443 et seq.; also articles 47 to 50 of the draft articles on State responsibility adopted by the International Law Commission on first reading, Official Records of the General Assembly, Fifty-first Session, Supplement No. 10 (A/51/10), pp. 144–145.)[2032] 223
[A/62/62, para. 126]
World Trade Organization panel
Mexico—Tax Measures on Soft Drinks and Other Beverages
In its 2005 report on Mexico—Tax Measures on Soft Drinks and Other Beverages, the panel noted that the European Communities (which was a third party in the proceedings) had criticized Mexico’s invocation of article XX(d) of GATT 1994[2033] 224 as a justification for the measures at issue by invoking the articles finally adopted by the International Law Commission in 2001, which it considered a codification of customary international law on the conditions imposed on countermeasures. According to the European Communities:
[2031] 222 These provisions were amended and incorporated in articles 49 to 52 finally adopted by the International Law Commission in 2001, which constitute, together with articles 53 and 54, chapter II of Part Three of the articles.
[2032] 223 See footnote [31] 37 above, at p. 55, para. 83.
[2033] 224 Mexico had argued that the challenged tax measures were “designed to secure compliance” by the United States with NAFTA, a law that was considered not inconsistent with the provisions of GATT 1994. The relevant part of article XX (General exceptions) of GATT 1994 reads as follows:
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
…
(d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices; …
Part Three, Chapter II 501
5.54. At a systemic level, Mexico’s interpretation would transform article XX(d) of GATT 1994 into an authorization of countermeasures within the meaning of public international law. It must be assumed, however, that if the contracting parties had intended such an interpretation, they would have expressed this in a clearer way. Moreover, under customary international law, as codified in the International Law Commission’s articles on responsibility of States for internationally wrongful acts, countermeasures are subject to strict substantive and procedural conditions, which are not contained in article XX(d) of GATT 1994.
5.55. The EC notes that Mexico has not so far justified its measure as a countermeasure under customary international law. Such a justification would already meet the objection that the Mexican measure does not only apply to products from the United States, but from anywhere. In any event, should Mexico still attempt such a justification, then this would also raise the difficult question of whether the concept of countermeasures is available to justify the violation of WTO obligations. In accordance with article 50 of the International Law Commission’s articles on responsibility of States for internationally wrongful acts, this would not be the case if the WTO agreements are to be considered as a lex specialis precluding the taking of countermeasures. This complex question has been addressed in the report of the International Law Commission at its fifty-third session.[2034] 225
The panel considered that the phrase “to secure compliance” in article XX(d) was to be interpreted as meaning “to enforce compliance” and that therefore the said provision was concerned with action at a domestic rather than international level; it thus further found that the challenged measures taken by Mexico were not covered under that provision.[2035] 226 In that context, the panel referred itself to the text of article 49 in support of its interpretation of article XX(d):
… it is worth noting that the draft articles on responsibility of States for internationally wrongful acts adopted by the International Law Commission do not speak of enforcement when addressing the use of countermeasures. Rather, paragraph 1 of article 49 states that “[a]n injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under Part Two”. Nor is the notion of enforcement used in the commentary on the articles, except in regard to procedures within the European Union, which because of its unique structures and procedures is obviously a special case.[2036] 227
[A/62/62, para. 127]
[2034] 225 WTO, Panel Report, WT/DS308/R, 7 October 2005, paras. 5.54–5.55 (footnotes omitted).
[2035] 226 This conclusion was later upheld by the WTO Appellate Body in Mexico—Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, 6 March 2006.
[2036] 227 WTO, Panel Report, WT/DS308/R, 7 October 2005, para. 8.180 (footnotes omitted).
502
Article 49. Object and limits of countermeasures
1. An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under Part Two.
2. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.
3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.
Commentary
(1) Article 49 describes the permissible object of countermeasures taken by an injured State against the responsible State and places certain limits on their scope. Countermeasures may only be taken by an injured State in order to induce the responsible State to comply with its obligations under Part Two, namely, to cease the internationally wrongful conduct, if it is continuing, and to provide reparation to the injured State.[2037] 744 Countermeasures are not intended as a form of punishment for wrongful conduct, but as an instrument for achieving compliance with the obligations of the responsible State under Part Two. The limited object and exceptional nature of countermeasures are indicated by the use of the word “only” in paragraph 1 of article 49.
(2) A fundamental prerequisite for any lawful countermeasure is the existence of an internationally wrongful act which injured the State taking the countermeasure. This point was clearly made by ICJ in the Gabčíkovo-Nagymaros Project case, in the following passage:
In order to be justifiable, a countermeasure must meet certain conditions …
In the first place it must be taken in response to a previous international wrongful act of another State and must be directed against that State.[2038] 745
(3) Paragraph 1 of article 49 presupposes an objective standard for the taking of countermeasures, and in particular requires that the countermeasure be taken against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations of cessation and reparation. A State taking countermeasures acts at its peril, if its view of the question of wrongfulness turns out not to be well founded. A State which resorts to countermeasures based on its unilateral assessment of the situation does so at its own risk and may incur responsibility for its own wrongful conduct in
[2037] 744 For these obligations, see articles 30 and 31 and commentaries.
[2038] 745 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 55, para. 83. See also “Naulilaa” (footnote [990] 337 above), p. 1027; “Cysne” (footnote [991] 338 above), p. 1057. At the 1930 Hague Conference, all States which responded on this point took the view that a prior wrongful act was an indispensable prerequisite for the adoption of reprisals; see League of Nations, Conference for the Codification of International Law, Bases of Discussion … (footnote [147] 88 above), p. 128.
Article 49 503
the event of an incorrect assessment.[2039] 746 In this respect, there is no difference between countermeasures and other circumstances precluding wrongfulness.[2040] 747
(4) A second essential element of countermeasures is that they “must be directed against”[2041] 748 a State which has committed an internationally wrongful act, and which has not complied with its obligations of cessation and reparation under Part Two of the present articles.[2042] 749 The word “only” in paragraph 1 applies equally to the target of the countermeasures as to their purpose and is intended to convey that countermeasures may only be adopted against a State which is the author of the internationally wrongful act. Countermeasures may not be directed against States other than the responsible State. In a situation where a third State is owed an international obligation by the State taking countermeasures and that obligation is breached by the countermeasure, the wrongfulness of the measure is not precluded as against the third State. In that sense the effect of countermeasures in precluding wrongfulness is relative. It concerns the legal relations between the injured State and the responsible State.[2043] 750
(5) This does not mean that countermeasures may not incidentally affect the position of third States or indeed other third parties. For example, if the injured State suspends transit rights with the responsible State in accordance with this chapter, other parties, including third States, may be affected thereby. If they have no individual rights in the matter they cannot complain. The same is true if, as a consequence of suspension of a trade agreement, trade with the responsible State is affected and one or more companies lose business or even go bankrupt. Such indirect or collateral effects cannot be entirely avoided.
(6) In taking countermeasures, the injured State effectively withholds performance for the time being of one or more international obligations owed by it to the responsible State, and paragraph 2 of article 49 reflects this element. Although countermeasures will normally take the form of the non-performance of a single obligation, it is possible that a particular measure may affect the performance of several obligations simultaneously. For this reason, paragraph 2 refers to “obligations” in the plural. For example, freezing of the assets of a State might involve what would otherwise be the breach of several obligations to that State under different agreements or arrangements. Different and coexisting obligations might be affected by the same act. The test is always that of proportionality, and a State which has committed an internationally wrongful act does not thereby make
[2039] 746 The tribunal’s remark in the Air Service Agreement case (footnotes [992] 339 and [1944] 213 above), to the effect that “each State establishes for itself its legal situation vis-à-vis other States” (p. 443, para. 81) should not be interpreted in the sense that the United States would have been justified in taking countermeasures whether or not France was in breach of the Agreement. In that case the tribunal went on to hold that the United States was actually responding to a breach of the Agreement by France, and that its response met the requirements for countermeasures under international law, in particular in terms of purpose and proportionality. The tribunal did not decide that an unjustified belief by the United States as to the existence of a breach would have been sufficient.
[2040] 747 See paragraph (8) of the introductory commentary to chapter V of Part One.
[2041] 748 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), pp. 55–56, para. 83.
[2042] 749 In the Gabčíkovo-Nagymaros Project case ICJ held that the requirement had been satisfied, in that Hungary was in continuing breach of its obligations under a bilateral treaty, and Czechoslovakia’s response was directed against it on that ground.
[2043] 750 On the specific question of human rights obligations, see article 50, paragraph (1) (b), and commentary.
504 Article 49
itself the target for any form or combination of countermeasures, irrespective of their severity or consequences.[2044] 751
(7) The phrase “for the time being” in paragraph 2 indicates the temporary or provisional character of countermeasures. Their aim is the restoration of a condition of legality as between the injured State and the responsible State, and not the creation of new situations which cannot be rectified whatever the response of the latter State to the claims against it.[2045] 752 Countermeasures are taken as a form of inducement, not punishment: if they are effective in inducing the responsible State to comply with its obligations of cessation and reparation, they should be discontinued and performance of the obligation resumed.
(8) Paragraph 1 of article 49 refers to the obligations of the responsible State “under Part Two”. It is to ensuring the performance of these obligations that countermeasures are directed. In many cases the main focus of countermeasures will be to ensure cessation of a continuing wrongful act, but they may also be taken to ensure reparation, provided the other conditions laid down in chapter II are satisfied. Any other conclusion would immunize from countermeasures a State responsible for an internationally wrongful act if the act had ceased, irrespective of the seriousness of the breach or its consequences, or of the State’s refusal to make reparation for it. In this context an issue arises whether countermeasures should be available where there is a failure to provide satisfaction as demanded by the injured State, given the subsidiary role this remedy plays in the spectrum of reparation.[2046] 753 In normal situations, satisfaction will be symbolic or supplementary and it would be highly unlikely that a State which had ceased the wrongful act and tendered compensation to the injured State could properly be made the target of countermeasures for failing to provide satisfaction as well. This concern may be adequately addressed by the application of the notion of proportionality set out in article 51.[2047] 754
(9) Paragraph 3 of article 49 is inspired by article 72, paragraph 2, of the 1969 Vienna Convention, which provides that when a State suspends a treaty it must not, during the suspension, do anything to preclude the treaty from being brought back into force. By analogy, States should as far as possible choose countermeasures that are reversible. In the Gabčíkovo-Nagymaros Project case, the existence of this condition was recognized by the Court, although it found that it was not necessary to pronounce on the matter. After concluding that “the diversion of the Danube carried out by Czechoslovakia was not a lawful countermeasure because it was not proportionate”, the Court said:
It is therefore not required to pass upon one other condition for the lawfulness of a countermeasure, namely that its purpose must be to induce the wrongdoing State to comply with its obligations under international law, and that the measure must therefore be reversible.[2048] 755
[2044] 751 See article 51 and commentary. In addition, the performance of certain obligations may not be withheld by way of countermeasures in any circumstances: see article 50 and commentary.
[2045] 752 This notion is further emphasized by articles 49, paragraph 3, and 53 (termination of countermeasures).
[2046] 753 See paragraph (1) of the commentary to article 37.
[2047] 754 Similar considerations apply to assurances and guarantees of non-repetition. See article 30, subparagraph (b), and commentary.
[2048] 755 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), pp. 56–57, para. 87.
Article 49 505
However, the duty to choose measures that are reversible is not absolute. It may not be possible in all cases to reverse all of the effects of countermeasures after the occasion for taking them has ceased. For example, a requirement of notification of some activity is of no value after the activity has been undertaken. By contrast, inflicting irreparable damage on the responsible State could amount to punishment or a sanction for non-compliance, not a countermeasure as conceived in the articles. The phrase “as far as possible” in paragraph 3 indicates that if the injured State has a choice between a number of lawful and effective countermeasures, it should select one which permits the resumption of performance of the obligations suspended as a result of countermeasures.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
World Trade Organization panel
Mexico—Tax Measures on Soft Drinks and Other Beverages
In its 2005 report on Mexico—Tax Measures on Soft Drinks and Other Beverages, the panel, in relation to Mexico’s argument according to which the measures at issue were a response to the persistent refusal of the United States to respond to Mexico’s repeated efforts to resolve the dispute, referred, in a footnote and without any further comment, to a passage of the International Law Commission’s commentary to article 49 finally adopted in 2001:
As the International Law Commission noted in its commentary on countermeasures, “[a] second essential element of countermeasures is that they ‘must be directed against’ a State which has committed an internationally wrongful act … This does not mean that countermeasures may not incidentally affect the position of third States or indeed other third parties … Similarly if, as a consequence of suspension of a trade agreement, trade with the responsible State is affected and one or more companies lose business or even go bankrupt. Such indirect or collateral effects cannot be entirely avoided.”[2049] 228
[A/62/62, para. 128]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the United Mexican States
In its 2007 award, the tribunal established to hear the case of Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. Mexico referred to article 49 of the State responsibility articles as follows:
The Tribunal takes as an authoritative statement of customary international law on countermeasures the position of the International Court of Justice [in the Gabčíkovo-Nagymaros case], as confirmed by the ILC Articles.[2050] 67
[2049] 228 WTO, Panel Report, WT/DS308/R, 7 October 2005, para. 4.335, footnote 73. The passage referred to is taken from paragraphs (4) and (5) of the commentary to article 49 (Yearbook of the International Law Commission, 2001, vol. II (Part Two), para. 77).
[2050] 67 Archer Daniels Midland Company (footnote [3] 4 above), para. 125.
506 Article 49
One of the issues before the tribunal was to decide whether a tax had been enacted by Mexico “in order to induce” the United States to comply with its NAFTA obligations, as required by article 49 of the State responsibility articles. Following an analysis of the facts, the tribunal held that that was not the case, and accordingly the tax was not a valid countermeasure within the meaning of article 49 of the State responsibility articles.[2051] 68
[A/65/76, para. 45]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Corn Products International Inc., v. The United Mexican States
In its 2008 Decision on Responsibility, the tribunal established to consider the case of Corn Products International Inc. v. Mexico was presented with a defence raised by the respondent that its imposition of a tax, which the tribunal found violated its obligations under NAFTA, was justified as a lawful countermeasure taken in response to a prior violation by the State of nationality of the applicant, the United States. One of the central issues for consideration by the tribunal was whether the countermeasures regime under the State responsibility articles was applicable to claims by individual investors under Chapter XI of NAFTA. The tribunal proceeded from the position, reflected in the commentary to article 49 (which it cited in extenso), that “[i]t is a well established feature of the law relating to countermeasures that a countermeasure must be directed against the State which has committed the prior wrongful act”.[2052] 69 The tribunal further noted the distinction, drawn in paragraphs (4) and (5) of the commentary to article 49, between a countermeasure extinguishing or otherwise affecting the “rights” as opposed to the “interests” of a third party and stated:
A countermeasure cannot … extinguish or otherwise affect the rights of a party other than the State responsible for the prior wrongdoing. On the other hand, it can affect the interests of such a party.[2053] 70
The issue then was “whether an investor within the meaning of article 1101 of the NAFTA has rights of its own, distinct from those of the State of its nationality, or merely interests. If it is the former, then a countermeasure taken by Mexico in response to an unlawful act on the part of the United States will not preclude wrongfulness as against [the investor], even though it may operate to preclude wrongfulness against the United States”.[2054] 71 The tribunal subsequently held that NAFTA did confer upon investors substantive rights separate and distinct from those of the State of which they are nationals, and accordingly that a countermeasure ostensibly taken against the United States could not deprive investors of such rights, and thus could not be raised as a circumstance precluding wrongfulness in the relation to a violation of the investor’s rights.[2055] 72 The tribunal was further confronted with the question of whether the requirements for a lawful countermeasure, as relied upon by the respondent, had been satisfied. In particular, the requirement of a prior
[2051] 68 Ibid., paras. 134–151.
[2052] 69 Corn Products International Inc. (footnote [4] 5 above), para. 163.
[2053] 70 Ibid., para. 164, emphasis in the original.
[2054] 71 Ibid., para. 165.
[2055] 72 Ibid., paras. 167 and 176.
Article 49 507
violation of international law, which it considered to be “an absolute precondition on the right to take countermeasures”, as supported by, inter alia, article 49, paragraph 1, of the State responsibility articles (which it cited together with the corresponding sentence in the commentary[2056] 73). In its view, “[i]t [was] plainly not open to this Tribunal to dispense with a fundamental prerequisite of this kind”.[2057] 74 The difficulty the tribunal faced was that it lacked jurisdiction to ascertain whether the allegations of the respondent against the United States, in support of the respondent’s defence of lawful countermeasures, were well founded or not, since the United States was not a party to the proceedings. As such, it could not uphold the respondent’s defence since it had not established one of the requirements of a valid countermeasure.[2058] 75 The tribunal cited, inter alia, the following extract from the commentary to article 49:
A State which resorts to countermeasures based on its unilateral assessment of the situation does so at its own risk and may incur responsibility for its own wrongful conduct in the event of an incorrect assessment.[2059] 76
[A/65/76, para. 46]
Arbitrations under article 22(6) of the WTO Dispute Settlement Understanding and articles 4(11) and 7(10) of the WTO Agreement on Subsidies and Countervailing Measures
United States—Subsidies on Upland Cotton, Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement and United States—Subsidies on Upland Cotton, Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 7.10 of the SCM Agreement
In two decisions taken in 2009, the arbitrator in the United States—Subsidies on Upland Cotton, Recourse to Arbitration case considered the reference to “appropriate countermeasures” under article 4, paragraph 10 (and separately under article 7, paragraph 10), of the Agreement on Subsidies and Countervailing Measures (SCM Agreement), and held, inter alia:
4.40 We note that the term ‘countermeasures’ is the general term used by the ILC in the context of its Draft Articles on State Responsibility, to designate temporary measures that injured States may take in response to breaches of obligations under international law.
4.41 We agree that this term, as understood in public international law, may usefully inform our understanding of the same term, as used in the SCM Agreement. Indeed, we find that the term ‘countermeasures’, in the SCM Agreement, describes measures that are in the nature of countermeasures as defined in the ILC’s Draft Articles on State Responsibility.
4.42 At this stage of our analysis, we therefore find that the term ‘countermeasures’ essentially characterizes the nature of the measures to be authorized, i.e. temporary measures that would otherwise be contrary to obligations under the WTO Agreement and that are taken in response to a breach of
[2056] 73 Paragraph (2): “A fundamental prerequisite for any lawful countermeasure is the existence of an internationally wrongful act which injured the State taking the countermeasure.”
[2057] 74 Corn Products International Inc. (footnote [4] 5 above), paras. 185–187.
[2058] 75 Ibid., para. 189.
[2059] 76 Ibid., para. 187, quoting from paragraph (3) of the commentary to article 49 (footnote omitted).
508 Article 49
an obligation under the SCM Agreement. This is also consistent with the meaning of this term in public international law as reflected in the ILC Articles on State Responsibility.[2060] 77
The arbitrator, in making the assertion that “[t]he fact that countermeasures … serve to induce compliance does not in and of itself provide specific indications as to the level of countermeasures that may be permissible … ”, held that such “distinction is also found under general rules of international law, as reflected in the ILC’s Articles on State Responsibility”. He proceeded to recall that “[a]rticle 49 of [the] Draft Articles defines ‘inducing compliance’ as the only legitimate object of countermeasures, while a separate provision, Article 51, addresses the question of the permissible level of countermeasures, which is defined in relation to proportionality to the injury suffered, taking into account the gravity of the breach”.[2061] 78
[A/65/76, para. 47]
[2060] 77 WTO, Case No. WT/DS267/ARB/2, Decision by the Arbitrator, 31 August 2009, paras. 4.30–4.32 (footnotes omitted). See also the discussion under article 55 below.
[2061] 78 Ibid., paras. 4.113 and 4.61, respectively.
509
Article 50. Obligations not affected by countermeasures
1. Countermeasures shall not affect:
(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law.
2. A State taking countermeasures is not relieved from fulfilling its obligations:
(a) under any dispute settlement procedure applicable between it and the responsible State;
(b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents.
Commentary
(1) Article 50 specifies certain obligations the performance of which may not be impaired by countermeasures. An injured State is required to continue to respect these obligations in its relations with the responsible State, and may not rely on a breach by the responsible State of its obligations under Part Two to preclude the wrongfulness of any non-compliance with these obligations. So far as the law of countermeasures is concerned, they are sacrosanct.
(2) The obligations dealt with in article 50 fall into two basic categories. Paragraph 1 deals with certain obligations, which by reason of their character, must not be the subject of countermeasures at all. Paragraph 2 deals with certain obligations relating in particular to the maintenance of channels of communication between the two States concerned, including machinery for the resolution of their disputes.
(3) Paragraph 1 of article 50 identifies four categories of fundamental substantive obligations which may not be affected by countermeasures: (a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations; (b) obligations for the protection of fundamental human rights; (c) obligations of a humanitarian character prohibiting reprisals; and (d) other obligations under peremptory norms of general international law.
(4) Paragraph 1 (a) deals with the prohibition of the threat or use of force as embodied in the Charter of the United Nations, including the express prohibition of the use of force in Article 2, paragraph 4. It excludes forcible measures from the ambit of permissible countermeasures under chapter II.
(5) The prohibition of forcible countermeasures is spelled out in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, by which the General Assembly proclaimed that “States have a duty to refrain from acts of reprisal involving the use of
510 Article 50
force.”[2062] 756 The prohibition is also consistent with the prevailing doctrine as well as a number of authoritative pronouncements of international judicial[2063] 757 and other bodies.[2064] 758
(6) Paragraph 1 (b) provides that countermeasures may not affect obligations for the protection of fundamental human rights. In the “Naulilaa” arbitration, the tribunal stated that a lawful countermeasure must be “limited by the requirements of humanity and the rules of good faith applicable in relations between States”.[2065] 759 The Institut de droit international in its 1934 resolution stated that in taking countermeasures a State must “abstain from any harsh measure which would be contrary to the laws of humanity or the demands of the public conscience”.[2066] 760 This has been taken further as a result of the development since 1945 of international human rights. In particular, the relevant human rights treaties identify certain human rights which may not be derogated from even in time of war or other public emergency.[2067] 761
(7) In its general comment No. 8 (1997) the Committee on Economic, Social and Cultural Rights discussed the effect of economic sanctions on civilian populations and especially on children. It dealt both with the effect of measures taken by international organizations, a topic which falls outside the scope of the present articles,[2068] 762 as well as with countermeasures imposed by individual States or groups of States. It stressed that “whatever the circumstances, such sanctions should always take full account of the provisions of the International Covenant on Economic, Social and Cultural Rights”,[2069] 763 and went on to state that:
it is essential to distinguish between the basic objective of applying political and economic pressure upon the governing elite of a country to persuade them to conform to international law, and the collateral infliction of suffering upon the most vulnerable groups within the targeted country.[2070] 764
Analogies can be drawn from other elements of general international law. For example, paragraph 1 of article 54 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) stipulates unconditionally that “[s]tarvation of civilians as a method of warfare is prohibited.”[2071] 765
[2062] 756 General Assembly resolution 2625 (XXV), annex, first principle. The Final Act of the Conference on Security and Co-operation in Europe also contains an explicit condemnation of forcible measures. Part of Principle II of the Declaration on Principles Guiding Relations between Participating States embodied in the first “Basket” of that Final Act reads: “Likewise [the participating States] will also refrain in their mutual relations from any act of reprisal by force”.
[2063] 757 See especially Corfu Channel, Merits (footnote [29] 35 above), p. 35; and Military and Paramilitary Activities in and against Nicaragua (footnote [30] 36 above), p. 127, para. 249.
[2064] 758 See, e.g., Security Council resolutions 111 (1956) of 19 January 1956, 171 (1962) of 9 April 1962, 188 (1964) of 9 April 1964, 316 (1972) of 26 June 1972, 332 (1973) of 21 April 1973, 573 (1985) of 4 October 1985 and 1322 (2000) of 7 October 2000. See also General Assembly resolution 41/38 of 20 November 1986.
[2065] 759 “Naulilaa” (footnote [990] 337 above), p. 1026.
[2066] 760 Annuaire de l’Institut de droit international, vol. 38 (1934), p. 710.
[2067] 761 See article 4 of the International Covenant on Civil and Political Rights; article 15 of the European Convention on Human Rights; and article 27 of the American Convention on Human Rights.
[2068] 762 See below, article 59 and commentary.
[2069] 763 E/C.12/1997/8, para. 1.
[2070] 764 Ibid., para. 4.
[2071] 765 See also paragraph 2 of article 54 (“objects indispensable to the survival of the civilian population”) and article 75. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II).
Article 50 511
Likewise, the final sentence of paragraph 2 of article 1 of the International Covenant on Economic, Social and Cultural Rights and of the International Covenant on Civil and Political Rights states that “In no case may a people be deprived of its own means of subsistence”.
(8) Paragraph 1 (c) deals with the obligations of humanitarian law with regard to reprisals and is modelled on article 60, paragraph 5, of the 1969 Vienna Convention.[2072] 766 The paragraph reflects the basic prohibition of reprisals against individuals, which exists in international humanitarian law. In particular, under the Geneva Convention relative to the Treatment of Prisoners of War of 1929, the Geneva Conventions of 12 August 1949 and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) of 1977, reprisals are prohibited against defined classes of protected persons, and these prohibitions are very widely accepted.[2073] 767
(9) Paragraph 1 (d) prohibits countermeasures affecting obligations under peremptory norms of general international law. Evidently, a peremptory norm, not subject to derogation as between two States even by treaty, cannot be derogated from by unilateral action in the form of countermeasures. Subparagraph (d) reiterates for the purposes of the present chapter the recognition in article 26 that the circumstances precluding wrongfulness elaborated in chapter V of Part One do not affect the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law. The reference to “other” obligations under peremptory norms makes it clear that subparagraph (d) does not qualify the preceding subparagraphs, some of which also encompass norms of a peremptory character. In particular, subparagraphs (b) and (c) stand on their own. Subparagraph (d) allows for the recognition of further peremptory norms creating obligations which may not be the subject of countermeasures by an injured State.[2074] 768
(10) States may agree between themselves on other rules of international law which may not be the subject of countermeasures, whether or not they are regarded as peremptory norms under general international law. This possibility is covered by the lex specialis provision in article 55 rather than by the exclusion of countermeasures under article 50, paragraph 1 (d). In particular, a bilateral or multilateral treaty might renounce the possibility of countermeasures being taken for its breach, or in relation to its subject matter. This is the case, for example, with the European Union treaties, which have their own system of enforcement.[2075] 769 Under the dispute settlement system of WTO, the prior authorization of the Dispute Settlement Body is required before a member can suspend conces[
2072] 766 Paragraph 5 of article 60 of the 1969 Vienna Convention precludes a State from suspending or terminating for material breach any treaty provision “relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties”. This paragraph was added at the Vienna Conference on the Law of Treaties on a vote of 88 votes in favour, none against and 7 abstentions.
[2073] 767 See K. J. Partsch, “Reprisals”, Encyclopedia of Public International Law, R. Bernhardt, ed. (Amsterdam, Elsevier, 2000), vol. 4, p. 200, at pp. 203–204; and S. Oeter, “Methods and means of combat”, D. Fleck, ed., op. cit., p. 105, at pp. 204–207, paras. 476–479, with references to relevant provisions.
[2074] 768 See paragraphs (4) to (6) of the commentary to article 40.
[2075] 769 On the exclusion of unilateral countermeasures in European Union law, see, for example, joined cases 90 and 91–63 (Commission of the European Economic Community v. Grand Duchy of Luxembourg and Kingdom of Belgium), Reports of cases before the Court, p. 625, at p. 631 (1964); case 52/75 (Commission of the European Communities v. Italian Republic), ibid., p. 277, at p. 284 (1976); case 232/78 (Commission of the European Economic Communities v. French Republic), ibid., p. 2729 (1979); and case
512 Article 50
sions or other obligations under the WTO agreements in response to a failure of another member to comply with recommendations and rulings of a WTO panel or the Appellate Body.[2076] 770 Pursuant to article 23 of the WTO Dispute Settlement Understanding (DSU), members seeking “the redress of a violation of obligations or other nullification or impairment of benefits” under the WTO agreements, “shall have recourse to, and abide by” the DSU rules and procedures. This has been construed both as an “exclusive dispute resolution clause” and as a clause “preventing WTO members from unilaterally resolving their disputes in respect of WTO rights and obligations”.[2077] 771 To the extent that derogation clauses or other treaty provisions (e.g. those prohibiting reservations) are properly interpreted as indicating that the treaty provisions are “intransgressible”,[2078] 772 they may entail the exclusion of countermeasures.
(11) In addition to the substantive limitations on the taking of countermeasures in paragraph 1 of article 50, paragraph 2 provides that countermeasures may not be taken with respect to two categories of obligations, viz. certain obligations under dispute settlement procedures applicable between it and the responsible State, and obligations with respect to diplomatic and consular inviolability. The justification in each case concerns not so much the substantive character of the obligation but its function in relation to the resolution of the dispute between the parties which has given rise to the threat or use of countermeasures.
(12) The first of these, contained in paragraph 2 (a), applies to “any dispute settlement procedure applicable” between the injured State and the responsible State. This phrase refers only to dispute settlement procedures that are related to the dispute in question and not to other unrelated issues between the States concerned. For this purpose the dispute should be considered as encompassing both the initial dispute over the internationally wrongful act and the question of the legitimacy of the countermeasure(s) taken in response.
(13) It is a well-established principle that dispute settlement provisions must be upheld notwithstanding that they are contained in a treaty which is at the heart of the dispute and the continued validity or effect of which is challenged. As ICJ said in Appeal Relating to the Jurisdiction of the ICAO Council:
Nor in any case could a merely unilateral suspension per se render jurisdictional clauses inoperative, since one of their purposes might be, precisely, to enable the validity of the suspension to be tested.[2079] 773
Similar reasoning underlies the principle that dispute settlement provisions between the injured and the responsible State and applicable to their dispute may not be suspended by way of countermeasures. Otherwise, unilateral action would replace an agreed provision C-5/94 (The Queen. v. Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd.), Reports of cases before the Court of Justice and the Court of First Instance, p. I–2553 (1996).
[2076] 770 See Marrakesh Agreement establishing the World Trade Organization, annex 2 (Understanding on Rules and Procedures governing the Settlement of Disputes), arts. 3, para. 7 and 22.
[2077] 771 See WTO, Report of the Panel, United States–Sections 301–310 of the Trade Act of 1974 (footnote [94] 73 above), paras. 7.35–7.46.
[2078] 772 To use the synonym adopted by ICJ in its advisory opinion on Legality of the Threat or Use of Nuclear Weapons (footnote [48] 54 above), p. 257, para. 79.
[2079] 773 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 46, at p. 53. See also S. M. Schwebel, International Arbitration: Three Salient Problems (Cambridge, Grotius, 1987), pp. 13–59.
Article 50 513
capable of resolving the dispute giving rise to the countermeasures. The point was affirmed by the Court in the United States Diplomatic and Consular Staff in Tehran case:
In any event, any alleged violation of the Treaty [of Amity] by either party could not have the effect of precluding that party from invoking the provisions of the Treaty concerning pacific settlement of disputes.[2080] 774
(14) The second exception in paragraph 2 (b) limits the extent to which an injured State may resort, by way of countermeasures, to conduct inconsistent with its obligations in the field of diplomatic or consular relations. An injured State could envisage action at a number of levels. To declare a diplomat persona non grata, to terminate or suspend diplomatic relations, to recall ambassadors in situations provided for in the Vienna Convention on Diplomatic Relations—such acts do not amount to countermeasures in the sense of this chapter. At a second level, measures may be taken affecting diplomatic or consular privileges, not prejudicing the inviolability of diplomatic or consular personnel or of premises, archives and documents. Such measures may be lawful as countermeasures if the requirements of this chapter are met. On the other hand, the scope of prohibited countermeasures under article 50, paragraph 2 (b), is limited to those obligations which are designed to guarantee the physical safety and inviolability (including the jurisdictional immunity) of diplomatic agents, premises, archives and documents in all circumstances, including armed conflict.[2081] 775 The same applies, mutatis mutandis, to consular officials.
(15) In the United States Diplomatic and Consular Staff in Tehran case, ICJ stressed that “diplomatic law itself provides the necessary means of defence against, and sanction for, illicit activities by members of diplomatic or consular missions”,[2082] 776 and it concluded that violations of diplomatic or consular immunities could not be justified even as countermeasures in response to an internationally wrongful act by the sending State. As the Court said:
The rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse.[2083] 777
If diplomatic or consular personnel could be targeted by way of countermeasures, they would in effect constitute resident hostages against perceived wrongs of the sending State, undermining the institution of diplomatic and consular relations. The exclusion of any countermeasures infringing diplomatic and consular inviolability is thus justified on functional grounds. It does not affect the various avenues for redress available to the receiving State under the terms of the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations.[2084] 778 On the other hand, no reference need be made
[2080] 774 United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), p. 28, para. 53.
[2081] 775 See, e.g., Vienna Convention on Diplomatic Relations, arts. 22, 24, 29, 44 and 45.
[2082] 776 United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), p. 38, para. 83.
[2083] 777 Ibid., p. 40, para. 86. Cf. article 45, subparagraph (a), of the Vienna Convention on Diplomatic Relations; article 27, paragraph 1 (a), of the Vienna Convention on Consular Relations (premises, property and archives to be protected “even in case of armed conflict”).
[2084] 778 See articles 9, 11, 26, 36, paragraph 2, 43 (b) and 47, paragraph 2 (a), of the Vienna Convention on Diplomatic Relations; and articles 10, paragraph 2, 12, 23, 25 (b), subparagraph (c) and article 35,
514 Article 50
in article 50, paragraph 2 (b), to multilateral diplomacy. The representatives of States to international organizations are covered by the reference to diplomatic agents. As for officials of international organizations themselves, no retaliatory step taken by a host State to their detriment could qualify as a countermeasure since it would involve non-compliance not with an obligation owed to the responsible State but with an obligation owed to a third party, i.e. the international organization concerned.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International Tribunal for the Former Yugoslavia
Prosecutor v. Zoran Kupreškić, Mirjian Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Šantić (“Lasva Valley”)
In its 2000 judgement in the Kupreškić et al. (“Lasva Valley”) case, the Trial Chamber invoked draft article 50(d) adopted on first reading[2085] 229 to confirm its finding that there existed a rule in international law that prohibited belligerent reprisals against civilians and fundamental rights of human beings. It stated that:
… the reprisal killing of innocent persons, more or less chosen at random, without any requirement of guilt or any form of trial, can safely be characterized as a blatant infringement of the most fundamental principles of human rights. It is difficult to deny that a slow but profound transformation of humanitarian law under the pervasive influence of human rights has occurred. As a result belligerent reprisals against civilians and fundamental rights of human beings are absolutely inconsistent legal concepts. This trend towards the humanization of armed conflict is among other things confirmed by the works of the United Nations International Law Commission on State responsibility. Article 50(d) of the draft articles on State responsibility, adopted on first reading in 1996, prohibits as countermeasures any “conduct derogating from basic human rights”.[2086] 230
In the same context, the Trial Chamber again relied on draft article 50(d) adopted on first reading, which it considered authoritative, to confirm its interpretation of the relevant rules of international law. It observed that:
The existence of this rule was authoritatively confirmed, albeit indirectly, by the International Law Commission. In commenting on subparagraph d of article 14 (now article 50) of the draft articles on State responsibility, which excludes from the regime of lawful countermeasures any conduct derogating from basic human rights, the Commission noted that article 3 common to the four 1949 Geneva Conventions “prohibits any reprisals in non-international armed conflicts with respect to the expressly prohibited acts as well as any other reprisal incompatible with the absolute requirement of humane treatment”. It follows that, in the opinion of the Commission, reprisals against civilians in the combat zone are also prohibited. This view, according to the Trial Chamber, is correct. However, it must be supplemented by two propositions. First, common article 3 has by now become customary international law. Secondly, as the International Court of Justice rightly held
paragraph (3), of the Vienna Convention on Consular Relations.
[2085] 229 The relevant subparagraph was amended and incorporated in article 50, paragraph 1 (b), finally adopted by the International Law Commission in 2001.
[2086] 230 International Tribunal for the Former Yugoslavia, Trial Chamber, Prosecutor v. Zoran Kupreškić, Mirjian Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Šantić (“Lasva Valley”), Judgement, Case No. IT-95–16-T, 14 January 2000, para. 529 (footnote omitted).
Article 50 515
in Nicaragua, it encapsulates fundamental legal standards of overarching value applicable both in international and internal armed conflicts. Indeed, it would be absurd to hold that while reprisals against civilians entailing a threat to life and physical safety are prohibited in civil wars, they are allowed in international armed conflicts as long as the civilians are in the combat zone.[2087] 231
[A/62/62, para. 129]
Eritrea-Ethiopia Claims Commission
Prisoners of War—Eritrea’s Claim 17, Partial Award
In its 2003 partial award on Prisoners of War—Eritrea’s Claim 17, the Eritrea-Ethiopia Claims Commission noted that Eritrea had claimed inter alia that:
Ethiopia’s suspension of prisoner of war exchanges cannot be justified as a non-forcible countermeasure under the law of state responsibility because, as article 50 of the International Law Commission’s articles on responsibility of States for internationally wrongful acts emphasizes, such measures may not affect “obligations for the protection of fundamental human rights”, or “obligations of a humanitarian character prohibiting reprisals”.[2088] 232
The Claims Commission did not refer explicitly to the International Law Commission articles in its subsequent reasoning, but it considered that Eritrea’s arguments were “well founded in law”, although they were considered insufficient to establish that Ethiopia had violated its repatriation obligation.[2089] 233
[A/62/62, para. 130]
International arbitral tribunal (under Annex VII to the 1982 United Nations Convention on the Law of the Sea)
In the matter of an Arbitration Between Guyana and Suriname
In its 2007 award in the Guyana v. Suriname case, the arbitral tribunal constituted to hear the case, after holding that certain military action taken by Suriname constituted a threat of the use of force in contravention of the United Nations Convention on the Law of the Sea of 1982, the Charter of the United Nations and general international law, was faced with a claim by Suriname that the measures were nevertheless lawful countermeasures since they were taken in response to an internationally wrongful act by Guyana. The tribunal held that “[i]t is a well established principle of international law that countermeasures may not involve the use of force” and continued:
This is reflected in the ILC Draft Articles on State Responsibility at Article 50(1)(a), which states that countermeasures shall not affect ‘the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations’. As the commentary to the ILC Draft Articles mentions, this principle is consistent with the jurisprudence emanating from international judicial bodies. It is also contained in the Declaration on Principles of International Law concerning Friendly Relations
[2087] 231 Ibid., para. 534 (footnotes omitted).
[2088] 232 Eritrea-Ethiopia Claims Commission, Prisoners of War—Eritrea’s Claim 17, Partial Award, 1 July 2003, para. 159.
[2089] 233 Ibid., para. 160.
516 Article 50
and Cooperation among States in accordance with the Charter of the United Nations, the adoption of which, according to the ICJ, is an indication of State’s opinio juris as to customary international law on the question.[2090] 79
[A/65/76, para. 48]
International arbitral tribunal (under the ICSID Additional Facility Rules)
Corn Products International Inc., v. The United Mexican States
The tribunal established to hear the case of Corn Products International Inc., v. Mexico, in its 2008 Decision on Responsibility, relied on article 50 of the State responsibility articles to draw the inference that adverse rulings by a WTO panel and Appellate Body did not preclude the respondent from raising the defence of countermeasures in the case of alleged violations of obligations under NAFTA.[2091] 80
[A/65/76, para. 49]
[2090] 79 Guyana v. Suriname (footnote [967] 19 above), para. 446 (footnote omitted).
[2091] 80 Corn Products International Inc. (footnote [4] 5 above), para. 158. See article 22 above.
517
Article 51. Proportionality
Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.
Commentary
(1) Article 51 establishes an essential limit on the taking of countermeasures by an injured State in any given case, based on considerations of proportionality. It is relevant in determining what countermeasures may be applied and their degree of intensity. Proportionality provides a measure of assurance inasmuch as disproportionate countermeasures could give rise to responsibility on the part of the State taking such measures.
(2) Proportionality is a well-established requirement for taking countermeasures, being widely recognized in State practice, doctrine and jurisprudence. According to the award in the “Naulilaa” case:
even if one were to admit that the law of nations does not require that the reprisal should be approximately in keeping with the offence, one should certainly consider as excessive and therefore unlawful reprisals out of all proportion to the act motivating them.[2092] 779
(3) In the Air Service Agreement arbitration,[2093] 780 the issue of proportionality was examined in some detail. In that case there was no exact equivalence between France’s refusal to allow a change of gauge in London on flights from the west coast of the United States and the United States’ countermeasure which suspended Air France flights to Los Angeles altogether. The tribunal nonetheless held the United States measures to be in conformity with the principle of proportionality because they “do not appear to be clearly disproportionate when compared to those taken by France”. In particular, the majority said:
It is generally agreed that all counter-measures must, in the first instance, have some degree of equivalence with the alleged breach: this is a well-known rule … It has been observed, generally, that judging the “proportionality” of counter-measures is not an easy task and can at best be accomplished by approximation. In the Tribunal’s view, it is essential, in a dispute between States, to take into account not only the injuries suffered by the companies concerned but also the importance of the questions of principle arising from the alleged breach. The Tribunal thinks that it will not suffice, in the present case, to compare the losses suffered by Pan Am on account of the suspension of the projected services with the losses which the French companies would have suffered as a result of the counter-measures; it will also be necessary to take into account the importance of the positions of principle which were taken when the French authorities prohibited changes of gauge in third countries. If the importance of the issue is viewed within the framework of the general air transport policy adopted by the United States Government and implemented by the conclusion of a large number of international agreements with countries other than France, the measures taken by the United States do not appear to be clearly disproportionate when compared to those taken by France. Neither Party has provided the Tribunal with evidence that would be sufficient to affirm or reject the existence of proportionality in these terms, and the Tribunal must be satisfied with a very approximative appreciation. [2094] 781
[2092] 779 “Naulilaa” (footnote [990] 337 above), p. 1028.
[2093] 780 Air Service Agreement (footnotes [992] 339 and [1944] 213 above), para. 83.
[2094] 781 Ibid.; Reuter, dissenting, accepted the tribunal’s legal analysis of proportionality but suggested that there were “serious doubts on the proportionality of the counter-measures taken by the
518 Article 51
In that case the countermeasures taken were in the same field as the initial measures and concerned the same routes, even if they were rather more severe in terms of their economic effect on the French carriers than the initial French action.
(4) The question of proportionality was again central to the appreciation of the legality of possible countermeasures taken by Czechoslovakia in the Gabčíkovo-Nagymaros Project case.[2095] 782 ICJ, having accepted that Hungary’s actions in refusing to complete the Project amounted to an unjustified breach of the Treaty on the Construction and Operation of the Gabčíkovo-Nagymaros Barrage System of 1977, went on to say:
In the view of the Court, an important consideration is that the effects of a countermeasure must be commensurate with the injury suffered, taking account of the rights in question.
In 1929, the Permanent Court of International Justice, with regard to navigation on the River Oder, stated as follows:
“[the] community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the user [sic] of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others” …
Modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well …
The Court considers that Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube—with the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetköz—failed to respect the proportionality which is required by international law …
The Court thus considers that the diversion of the Danube carried out by Czechoslovakia was not a lawful countermeasure because it was not proportionate.
Thus, the Court took into account the quality or character of the rights in question as a matter of principle and (like the tribunal in the Air Service Agreement case) did not assess the question of proportionality only in quantitative terms.
(5) In other areas of the law where proportionality is relevant (e.g. self-defence), it is normal to express the requirement in positive terms, even though, in those areas as well, what is proportionate is not a matter which can be determined precisely.[2096] 783 The positive formulation of the proportionality requirement is adopted in article 51. A negative formulation might allow too much latitude, in a context where there is concern as to the possible abuse of countermeasures.
(6) Considering the need to ensure that the adoption of countermeasures does not lead to inequitable results, proportionality must be assessed taking into account not only the purely “quantitative” element of the injury suffered, but also “qualitative” factors such as the importance of the interest protected by the rule infringed and the seriousness of the breach. Article 51 relates proportionality primarily to the injury suffered but “taking into account” two
United States, which the tribunal has been unable to assess definitely” (p. 448).
[2095] 782 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 56, paras. 85 and 87, citing Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 1929, P.C.I.J., Series A, No. 23, p. 27.
[2096] 783 E. Cannizzaro, Il principio della proporzionalità nell’ordinamento internazionale (Milan, Giuffrè, 2000).
Article 51 519
further criteria: the gravity of the internationally wrongful act, and the rights in question. The reference to “the rights in question” has a broad meaning, and includes not only the effect of a wrongful act on the injured State but also on the rights of the responsible State. Furthermore, the position of other States which may be affected may also be taken into consideration.
(7) Proportionality is concerned with the relationship between the internationally wrongful act and the countermeasure. In some respects proportionality is linked to the requirement of purpose specified in article 49: a clearly disproportionate measure may well be judged not to have been necessary to induce the responsible State to comply with its obligations but to have had a punitive aim and to fall outside the purpose of countermeasures enunciated in article 49. Proportionality is, however, a limitation even on measures which may be justified under article 49. In every case a countermeasure must be commensurate with the injury suffered, including the importance of the issue of principle involved and this has a function partly independent of the question whether the countermeasure was necessary to achieve the result of ensuring compliance.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
World Trade Organization panel
United States—Import Measures on Certain Products From the European Communities
In its 2000 report on United States—Import Measures on Certain Products from the European Communities, the panel noted that the suspension of concessions or other obligations authorized by the Dispute Settlement Body—which is the remedial action available, in last resort, for WTO members under the WTO Dispute Settlement Understanding—was “essentially retaliatory in nature”. In a footnote, it further referred to the conditions imposed on countermeasures under the International Law Commission articles, and in particular draft article 49, as adopted on first reading:[2097] 234
… Under general international law, retaliation (also referred to as reprisals or countermeasures) has undergone major changes in the course of the twentieth century, specially, as a result of the prohibition of the use of force (jus ad bellum). Under international law, these types of countermeasures are now subject to requirements, such as those identified by the International Law Commission in its work on state responsibility (proportionality, etc. … see article [49] of the draft). However, in WTO, countermeasures, retaliations and reprisals are strictly regulated and can take place only within the framework of the WTO Dispute Settlement Understanding.[2098] 235
[A/62/62, para. 131]
[2097] 234 Although the original text of the quoted passage inadvertently refers to draft article 43 with regard to the issue of proportionality, the draft article adopted on first reading that dealt with that issue was draft article 49, which was amended and incorporated in article 51 finally adopted by the International Law Commission in 2001. The text of draft article 49 adopted on first reading was the following:
Article 49
Proportionality
Countermeasures taken by an injured State shall not be out of proportion to the degree of gravity of the internationally wrongful act and the effects thereof on the injured State. (Yearbook … 1996, vol. II (Part Two), para. 65.)
[2098] 235 WTO, Panel Report, WT/DS165/R, 17 July 2000, para. 6.23, footnote 100.
520 Article 51
World Trade Organization Appellate Body
United States—Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan
In its 2001 report on United States—Cotton Yarn, the Appellate Body considered that its interpretation according to which article 6.4, second sentence, of the agreement on textiles and clothing did not permit the attribution of the totality of serious damage to one Member, unless the imports from that Member alone had caused all the serious damage
[was] supported further by the rules of general international law on State responsibility, which require that countermeasures in response to breaches by states of their international obligations be commensurate with the injury suffered.[2099] 236
This sentence was followed by a footnote that reproduced the complete text of article 51 finally adopted by the International Law Commission in 2001.
[A/62/62, para. 132]
United States—Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea
In its 2002 report on United States—Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, the Appellate Body again referred to article 51 finally adopted by the International Law Commission in 2001, which it considered as reflecting customary international law rules on State responsibility, to support its interpretation of the first sentence of article 5.1 of the agreement on safeguards:
We note … the customary international law rules on State responsibility, to which we also referred in US—Cotton Yarn. We recalled there that the rules of general international law on State responsibility require that countermeasures in response to breaches by States of their international obligations be proportionate to such breaches. Article 51 of the International Law Commission’s draft articles on responsibility of States for internationally wrongful acts provides that “countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question”. Although article 51 is part of the International Law Commission’s draft articles, which do not constitute a binding legal instrument as such, this provision sets out a recognized principle of customary international law. We observe also that the United States has acknowledged this principle elsewhere. In its comments on the International Law Commission’s draft articles, the United States stated that “under customary international law a rule of proportionality applies to the exercise of countermeasures”.[2100] 237
[A/62/62, para. 133]
[2099] 236 WTO Appellate Body, WT/DS192/AB/R, 8 October 2001, para. 120.
[2100] 237 WTO Appellate Body Report, WT/DS202/AB/R, 15 February 2002, para. 259 (footnotes omitted).
Article 51 521
International arbitral tribunal (under the ICSID Additional Facility Rules)
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the United Mexican States
In its 2007 award, the tribunal established to hear the case of Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. Mexico referred to article 51 of the State responsibility articles in recalling that, as per the requirement of proportionality, countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.[2101] 81 Reference was further made to paragraph (7) of the commentary to article 51, which provides:
(7) Proportionality is concerned with the relationship between the international wrongful act and the countermeasure. In some respects proportionality is linked to the requirement of purpose specified in article 49: a clearly disproportionate measure may well be judged not to have been necessary to induce the responsible State to comply with its obligations but to have had a punitive aim and to fall outside the purpose of countermeasures enunciated in article 49.[2102] 82
In casu, the tribunal found that Mexico’s aim to secure compliance by the United States of its obligations under Chapters Seven and Twenty of NAFTA could have been attained by other measures not impairing the investment protection standards. Accordingly, it held that a tax imposed by Mexico, ostensibly to secure such compliance, did not meet the proportionality requirement for the validity of countermeasures under customary international law.[2103] 83
[A/65/76, para. 50]
Arbitrations under article 22(6) of the WTO Dispute Settlement Understanding and articles 4(11) and 7(10) of the WTO Agreement on Subsidies and Countervailing Measures
United States—Subsidies on Upland Cotton, Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement and United States—Subsidies on Upland Cotton, Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 7.10 of the SCM Agreement
In two decisions taken in 2009, the arbitrator in the United States—Subsidies on Upland Cotton, Recourse to Arbitration case referred to article 51 of the State responsibility articles in noting that the articles maintain a general distinction between the purpose of countermeasures and the level of permissible countermeasures.[2104] 84
[A/65/76, para. 51]
[2101] 81 Archer Daniels Midland Company (footnote [3] 4 above), para. 152.
[2102] 82 Yearbook of the International Law Commission, 2001, Volume II (Part Two), p. 135.
[2103] 83 Archer Daniels Midland Company (footnote [3] 4 above), para. 160.
[2104] 84 Case No. WT/DS267/ARB/1, Decision by the Arbitrator, 31 August 2009, para. 4.113, and Case No. WT/DS267/ARB/2, Decision by the Arbitrator, 31 August 2009, para. 4.61. See also the discussion under article 49 above.
522
Article 52. Conditions relating to resort to countermeasures
1. Before taking countermeasures, an injured State shall:
(a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under Part Two;
(b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State.
2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are necessary to preserve its rights.
3. Countermeasures may not be taken, and if already taken must be suspended without undue delay if:
(a) the internationally wrongful act has ceased; and
(b) the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties.
4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures in good faith.
Commentary
(1) Article 52 lays down certain procedural conditions relating to the resort to countermeasures by the injured State. Before taking countermeasures an injured State is required to call on the responsible State in accordance with article 43 to comply with its obligations under Part Two. The injured State is also required to notify the responsible State that it intends to take countermeasures and to offer to negotiate with that State. Notwithstanding this second requirement, the injured State may take certain urgent countermeasures to preserve its rights. If the responsible State has ceased the internationally wrongful act and the dispute is before a competent court or tribunal, countermeasures may not be taken; if already taken, they must be suspended. However, this requirement does not apply if the responsible State fails to implement dispute settlement procedures in good faith. In such a case countermeasures do not have to be suspended and may be resumed.
(2) Overall, article 52 seeks to establish reasonable procedural conditions for the taking of countermeasures in a context where compulsory third party settlement of disputes may not be available, immediately or at all.[2105] 784 At the same time, it needs to take into account the possibility that there may be an international court or tribunal with authority to make decisions binding on the parties in relation to the dispute. Countermeasures are a form of self-help, which responds to the position of the injured State in an international system in which the impartial settlement of disputes through due process of law is not yet guaranteed. Where a third party procedure exists and has been invoked by either party to the dispute, the requirements of that procedure, e.g. as to interim measures of protection, should substitute as far as possible for countermeasures. On the other hand, even where an international court or tribunal has jurisdiction over a dispute and authority to indicate interim measures of protection, it may be that the responsible State is not cooperating in that process. In such cases the remedy of countermeasures necessarily revives.
[2105] 784 See above, paragraph (7) of the commentary to the present chapter.
Article 52 523
(3) The system of article 52 builds upon the observations of the tribunal in the Air Service Agreement arbitration.[2106] 785 The first requirement, set out in paragraph 1 (a), is that the injured State must call on the responsible State to fulfil its obligations of cessation and reparation before any resort to countermeasures. This requirement (sometimes referred to as “sommation”) was stressed both by the tribunal in the Air Service Agreement arbitration[2107] 786 and by ICJ in the Gabčíkovo-Nagymaros Project case.[2108] 787 It also appears to reflect a general practice.[2109] 788
(4) The principle underlying the notification requirement is that, considering the exceptional nature and potentially serious consequences of countermeasures, they should not be taken before the other State is given notice of a claim and some opportunity to present a response. In practice, however, there are usually quite extensive and detailed negotiations over a dispute before the point is reached where some countermeasures are contemplated. In such cases the injured State will already have notified the responsible State of its claim in accordance with article 43, and it will not have to do it again in order to comply with paragraph 1 (a).
(5) Paragraph 1 (b) requires that the injured State which decides to take countermeasures should notify the responsible State of that decision to take countermeasures and offer to negotiate with that State. Countermeasures can have serious consequences for the target State, which should have the opportunity to reconsider its position faced with the proposed countermeasures. The temporal relationship between the operation of subparagraphs (a) and (b) of paragraph 1 is not strict. Notifications could be made close to each other or even at the same time.
(6) Under paragraph 2, however, the injured State may take “such urgent countermeasures as are necessary to preserve its rights” even before any notification of the intention to do so. Under modern conditions of communications, a State which is responsible for an internationally wrongful act and which refuses to cease that act or provide any redress therefore may also seek to immunize itself from countermeasures, for example by withdrawing assets from banks in the injured State. Such steps can be taken within a very short time, so that the notification required by paragraph 1 (b) might frustrate its own purpose. Hence, paragraph 2 allows for urgent countermeasures which are necessary to preserve the rights of the injured State: this phrase includes both its rights in the subject matter of the dispute and its right to take countermeasures. Temporary stay orders, the temporary freezing of assets and similar measures could fall within paragraph 2, depending on the circumstances.
(7) Paragraph 3 deals with the case in which the wrongful act has ceased and the dispute is submitted to a court or tribunal which has the authority to decide it with binding effect for the parties. In such a case, and for so long as the dispute settlement procedure is being implemented in good faith, unilateral action by way of countermeasures is not justified. Once the conditions in paragraph 3 are met, the injured State may not take countermeasures; if already taken, they must be suspended “without undue delay”. The phrase “without undue delay” allows a limited tolerance for the arrangements required to suspend the measures in question.
[2106] 785 Air Service Agreement (footnotes [992] 339 and [1944] 213 above), pp. 445–446, paras. 91 and 94–96.
[2107] 786 Ibid., p. 444, paras. 85–87.
[2108] 787 Gabčíkovo-Nagymaros Project (footnote [31] 37 above), p. 56, para. 84.
[2109] 788 A. Gianelli, Adempimenti preventivi all’adozione di contromisure internazionali (Milan, Giuffrè, 1997).
524 Article 52
(8) A dispute is not “pending before a court or tribunal” for the purposes of paragraph 3 (b) unless the court or tribunal exists and is in a position to deal with the case. For these purposes a dispute is not pending before an ad hoc tribunal established pursuant to a treaty until the tribunal is actually constituted, a process which will take some time even if both parties are cooperating in the appointment of the members of the tribunal.[2110] 789 Paragraph 3 is based on the assumption that the court or tribunal to which it refers has jurisdiction over the dispute and also the power to order provisional measures. Such power is a normal feature of the rules of international courts and tribunals.[2111] 790 The rationale behind paragraph 3 is that once the parties submit their dispute to such a court or tribunal for resolution, the injured State may request it to order provisional measures to protect its rights. Such a request, provided the court or tribunal is available to hear it, will perform a function essentially equivalent to that of countermeasures. Provided the order is complied with it will make countermeasures unnecessary pending the decision of the tribunal. The reference to a “court or tribunal” is intended to refer to any third party dispute settlement procedure, whatever its designation. It does not, however, refer to political organs such as the Security Council. Nor does it refer to a tribunal with jurisdiction between a private party and the responsible State, even if the dispute between them has given rise to the controversy between the injured State and the responsible State. In such cases, however, the fact that the underlying dispute has been submitted to arbitration will be relevant for the purposes of articles 49 and 51, and only in exceptional cases will countermeasures be justified.[2112] 791
(9) Paragraph 4 of article 52 provides a further condition for the suspension of countermeasures under paragraph 3. It comprehends various possibilities, ranging from an initial refusal to cooperate in the procedure, for example by non-appearance, through non-compliance with a provisional measures order, whether or not it is formally binding, through to refusal to accept the final decision of the court or tribunal. This paragraph also applies to situations where a State party fails to cooperate in the establishment of the relevant tribunal or fails to appear before the tribunal once it is established. Under the circumstances of paragraph 4, the limitations to the taking of countermeasures under paragraph 3 do not apply.
[2110] 789 Hence, paragraph 5 of article 290 of the United Nations Convention on the Law of the Sea provides for ITLOS to deal with provisional measures requests “[p]ending the constitution of an arbitral tribunal to which the dispute is being submitted”.
[2111] 790 The binding effect of provisional measures orders under Part XI of the United Nations Convention on the Law of the Sea is assured by paragraph 6 of article 290. For the binding effect of provisional measures orders under Article 41 of the Statute of ICJ, see the decision in LaGrand, Judgment (footnote [236] 119 above), pp. 501–504, paras. 99–104.
[2112] 791 Under the Convention on the Settlement of Investment Disputes between States and Nationals of other States, the State of nationality may not bring an international claim on behalf of a claimant individual or company “in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute” (art. 27, para. 1); see C. H. Schreuer, The ICSID Convention: A Commentary (Cambridge University Press, 2001) pp. 397–414. This excludes all forms of invocation of responsibility by the State of nationality, including the taking of countermeasures. See paragraph (2) of the commentary to article 42.
Article 52 525
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
World Trade Organization Appellate Body
United States—Continued Suspension of Obligations in the EC—Hormones Dispute
In its 2008 report, the WTO Appellate Body in the United States—Continued Suspension of Obligations in the EC—Hormones Dispute, declined to uphold the argument of the European Communities that the latter’s position was consistent with the approach in article 52, paragraph 3, of the State responsibility articles, i.e. requiring that countermeasures be suspended if the internationally wrongful act has ceased and the dispute is pending before a tribunal that has the authority to make decisions binding upon the parties.[2113] 85
[A/65/76, para. 52]
[2113] 85 WTO Appellate Body, Case No. AB-2008–5, Report of the Appellate Body, 14 November 2008, para. 382 (“the Articles on State Responsibility do not lend support to the European Communities’ position”). See article 53. See also WTO Appellate Body, Canada—Continued Suspension of Obligations in the EC—Hormones Dispute, Case No. AB-2008–6, Report of the Appellate Body, 14 November 2008, para. 382.
526
Article 53. Termination of countermeasures
Countermeasures shall be terminated as soon as the responsible State has complied with its obligations under Part Two in relation to the internationally wrongful act.
Commentary
(1) Article 53 deals with the situation where the responsible State has complied with its obligations of cessation and reparation under Part Two in response to countermeasures taken by the injured State. Once the responsible State has complied with its obligations under Part Two, no ground is left for maintaining countermeasures, and they must be terminated forthwith.
(2) The notion that countermeasures must be terminated as soon as the conditions which justified them have ceased is implicit in the other articles in this chapter. In view of its importance, however, article 53 makes this clear. It underlines the specific character of countermeasures under article 49.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
World Trade Organization Appellate Body
United States—Continued Suspension of Obligations in the EC—Hormones Dispute
In its 2008 report, the WTO Appellate Body in the United States—Continued Suspension of Obligations in the EC—Hormones Dispute, held that
… Article 53 provides that countermeasures must be terminated as soon as the State ‘has complied with its obligations’ in relation to the internationally wrongful act. Thus, relevant principles under international law, as reflected in the Articles on State Responsibility, support the proposition that countermeasures may continue until such time as the responsible State has ceased the wrongful act by fully complying with its obligations.[2114] 86
[A/65/76, para. 53]
[2114] 86 Ibid.
527
Article 54. Measures taken by States other than an injured State
This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.
Commentary
(1) Chapter II deals with the right of an injured State to take countermeasures against a responsible State in order to induce that State to comply with its obligations of cessation and reparation. However, “injured” States, as defined in article 42, are not the only States entitled to invoke the responsibility of a State for an internationally wrongful act under chapter I of this Part. Article 48 allows such invocation by any State, in the case of the breach of an obligation to the international community as a whole, or by any member of a group of States, in the case of other obligations established for the protection of the collective interest of the group. By virtue of article 48, paragraph 2, such States may also demand cessation and performance in the interests of the beneficiaries of the obligation breached. Thus, with respect to the obligations referred to in article 48, such States are recognized as having a legal interest in compliance. The question is to what extent these States may legitimately assert a right to react against unremedied breaches.[2115] 792
(2) It is vital for this purpose to distinguish between individual measures, whether taken by one State or by a group of States each acting in its individual capacity and through its own organs on the one hand, and institutional reactions in the framework of international organizations on the other. The latter situation, for example where it occurs under the authority of Chapter VII of the Charter of the United Nations, is not covered by the articles.[2116] 793 More generally, the articles do not cover the case where action is taken by an international organization, even though the member States may direct or control its conduct.[2117] 794
(3) Practice on this subject is limited and rather embryonic. In a number of instances, States have reacted against what were alleged to be breaches of the obligations referred to in article 48 without claiming to be individually injured. Reactions have taken such forms as economic sanctions or other measures (e.g. breaking off air links or other contacts). Examples include the following:
– United States–Uganda (1978). In October 1978, the United States Congress adopted legislation prohibiting exports of goods and technology to, and all imports from, Uganda.[2118] 795 The legislation recited that “[t]he Government of Uganda … has committed geno[
2115] 792 See, e.g., M. Akehurst, “Reprisals by third States”, BYBIL, 1970, vol. 44, p. 1; J. I. Charney, “Third State remedies in international law”, Michigan Journal of International Law, vol. 10, No. 1 (1989), p. 57; Hutchinson, loc. cit. (footnote [1923] 672 above); Sicilianos, op. cit. (footnote [2022] 735 above), pp. 110–175; B. Simma, “From bilateralism to community interest in international law”, Collected Courses … , 1994–VI (The Hague, Martinus Nijhoff, 1997), vol. 250, p. 217; and J. A. Frowein, “Reactions by not directly affected States to breaches of public international law”, Collected Courses … , 1994–IV (Dordrecht, Martinus Nijhoff, 1995), vol. 248, p. 345.
[2116] 793 See article 59 and commentary.
[2117] 794 See article 57 and commentary.
[2118] 795 Uganda Embargo Act, Public Law 95–435 of 10 October 1978, United States Statutes at Large 1978, vol. 92, part 1 (Washington D. C., United States Government Printing Office, 1980), pp. 1051–1053.
528 Article 54
cide against Ugandans” and that the “United States should take steps to dissociate itself from any foreign government which engages in the international crime of genocide”.[2119] 796
– Certain Western countries–Poland and the Soviet Union (1981). On 13 December 1981, the Polish Government imposed martial law and subsequently suppressed demonstrations and detained many dissidents.[2120] 797 The United States and other Western countries took action against both Poland and the Soviet Union. The measures included the suspension, with immediate effect, of treaties providing for landing rights of Aeroflot in the United States and LOT in the United States, Great Britain, France, the Netherlands, Switzerland and Austria.[2121] 798 The suspension procedures provided for in the respective treaties were disregarded.[2122] 799
– Collective measures against Argentina (1982). In April 1982, when Argentina took control over part of the Falkland Islands (Malvinas), the Security Council called for an immediate withdrawal.[2123] 800 Following a request by the United Kingdom, European Community members, Australia, Canada and New Zealand adopted trade sanctions. These included a temporary prohibition on all imports of Argentine products, which ran contrary to article XI:1 and possibly article III of the General Agreement on Tariffs and Trade. It was disputed whether the measures could be justified under the national security exception provided for in article XXI (b) (iii) of the Agreement.[2124] 801 The embargo adopted by the European countries also constituted a suspension of Argentina’s rights under two sectoral agreements on trade in textiles and trade in mutton and lamb,[2125] 802 for which security exceptions of the Agreement did not apply.
– United States–South Africa (1986). When in 1985, the Government of South Africa declared a state of emergency in large parts of the country, the Security Council recommended the adoption of sectoral economic boycotts and the freezing of cultural and sports relations.[2126] 803 Subsequently, some countries introduced measures which went beyond those recommended by the Security Council. The United States Congress adopted the Comprehensive Anti-Apartheid Act which suspended landing rights of South African
[2119] 796 Ibid., sects. 5(a) and (b).
[2120] 797 RGDIP, vol. 86 (1982), pp. 603–604.
[2121] 798 Ibid., p. 606.
[2122] 799 See, e.g., article 15 of the Air Transport Agreement between the Government of the United States of America and the Government of the Polish People’s Republic of 1972 (United States Treaties and Other International Agreements, vol. 23, part 4 (1972), p. 4269); and article 17 of the United States-Union of Soviet Socialist Republics Civil Air Transport Agreement of 1966, ILM, vol. 6, No. 1 (January 1967), p. 82 and vol. 7, No. 3 (May 1968), p. 571.
[2123] 800 Security Council resolution 502 (1982) of 3 April 1982.
[2124] 801 Western States’ reliance on this provision was disputed by other GATT members; cf. communiqué of Western countries, GATT document L. 5319/Rev.1 and the statements by Spain and Brazil, GATT document C/M/157, pp. 5–6. For an analysis, see M. J. Hahn, Die einseitige Aussetzung von GATT-Verpflichtungen als Repressalie (Unilateral Suspension of GATT Obligations as Reprisal (English summary)) (Berlin, Springer, 1996), pp. 328–334.
[2125] 802 The treaties are reproduced in Official Journal of the European Communities, No. L 298 of 26 November 1979, p. 2; and No. L 275 of 18 October 1980, p. 14.
[2126] 803 Security Council resolution 569 (1985) of 26 July 1985. For further references, see Sicilianos, op. cit. (footnote [2022] 735 above), p. 165.
Article 54 529
Airlines on United States territory.[2127] 804 This immediate suspension was contrary to the terms of the 1947 United States of America and Union of South Africa Agreement relating to air services between their respective territories[2128] 805 and was justified as a measure which should encourage the Government of South Africa “to adopt reforms leading to the establishment of a non-racial democracy”.[2129] 806
– Collective measures against Iraq (1990). On 2 August 1990, Iraqi troops invaded and occupied Kuwait. The Security Council immediately condemned the invasion. European Community member States and the United States adopted trade embargoes and decided to freeze Iraqi assets.[2130] 807 This action was taken in direct response to the Iraqi invasion with the consent of the Government of Kuwait.
– Collective measures against the Federal Republic of Yugoslavia (1998). In response to the humanitarian crisis in Kosovo, the member States of the European Community adopted legislation providing for the freezing of Yugoslav funds and an immediate flight ban.[2131] 808 For a number of countries, such as France, Germany and the United Kingdom, the latter measure implied the non-performance of bilateral aviation agreements.[2132] 809 Because of doubts about the legitimacy of the action, the British Government initially was prepared to follow the one-year denunciation procedure provided for in article 17 of its agreement with Yugoslavia. However, it later changed its position and denounced flights with immediate effect. Justifying the measure, it stated that “President Milosevic’s … worsening record on human rights, means that, on moral and political grounds, he has forfeited the right of his Government to insist upon the 12 months notice which would normally apply.”[2133] 810 The Federal Republic of Yugoslavia protested these measures as “unlawful, unilateral and an example of the policy of discrimination”.[2134] 811
(4) In some other cases, certain States similarly suspended treaty rights in order to exercise pressure on States violating collective obligations. However, they did not rely on a right to take countermeasures, but asserted a right to suspend the treaty because of a fundamental change of circumstances. Two examples may be given:
– Netherlands–Suriname (1982). In 1980, a military Government seized power in Suriname. In response to a crackdown by the new Government on opposition movements in December 1982, the Dutch Government suspended a bilateral treaty on development
[2127] 804 For the text of this provision, see ILM, vol. 26, No. 1 (January 1987), p. 79 (sect. 306).
[2128] 805 United Nations, Treaty Series, vol. 66, p. 239 (art. VI).
[2129] 806 For the implementation order, see ILM (footnote [2127] 804 above), p. 105.
[2130] 807 See, e.g., President Bush’s Executive Orders of 2 August 1990, reproduced in AJIL, vol. 84, No. 4 (October 1990), pp. 903–905.
[2131] 808 Common positions of 7 May and 29 June 1998, Official Journal of the European Communities, No. L 143 of 14 May 1998, p. 1 and No. L 190 of 4 July 1998, p. 3; implemented through Council Regulations 1295/98, ibid., No. L 178 of 23 June 1998, p. 33 and 1901/98, ibid., No. L 248 of 8 September 1998, p. 1.
[2132] 809 See, e.g., United Kingdom, Treaty Series No. 10 (1960) (London, H. M. Stationery Office, 1960); and Recueil des Traités et Accords de la France, 1967, No. 69.
[2133] 810 BYBIL, 1998, vol. 69, p. 581; see also BYBIL, 1999, vol. 70, pp. 555–556.
[2134] 811 Statement of the Government of the Federal Republic of Yugoslavia on the suspension of flights of Yugoslav Airlines of 10 October 1999.
530 Article 54
assistance under which Suriname was entitled to financial subsidies.[2135] 812 While the treaty itself did not contain any suspension or termination clauses, the Dutch Government stated that the human rights violations in Suriname constituted a fundamental change of circumstances which gave rise to a right of suspension.[2136] 813
– European Community member States–the Federal Republic of Yugoslavia (1991). In the autumn of 1991, in response to resumption of fighting within the Federal Republic of Yugoslavia, European Community members suspended and later denounced the 1983 Cooperation Agreement with Yugoslavia.[2137] 814 This led to a general repeal of trade preferences on imports and thus went beyond the weapons embargo ordered by the Security Council in resolution 713 (1991) of 25 September 1991. The reaction was incompatible with the terms of the Cooperation Agreement, which did not provide for the immediate suspension but only for denunciation upon six months’ notice. Justifying the suspension, European Community member States explicitly mentioned the threat to peace and security in the region. But as in the case of Suriname, they relied on fundamental change of circumstances, rather than asserting a right to take countermeasures.[2138] 815
(5) In some cases, there has been an apparent willingness on the part of some States to respond to violations of obligations involving some general interest, where those States could not be considered “injured States” in the sense of article 42. It should be noted that in those cases where there was, identifiably, a State primarily injured by the breach in question, other States have acted at the request and on behalf of that State.[2139] 816
(6) As this review demonstrates, the current state of international law on countermeasures taken in the general or collective interest is uncertain. State practice is sparse and involves a limited number of States. At present, there appears to be no clearly recognized entitlement of States referred to in article 48 to take countermeasures in the collective interest. Consequently, it is not appropriate to include in the present articles a provision concerning the question whether other States, identified in article 48, are permitted to take countermeasures in order to induce a responsible State to comply with its obligations. Instead, chapter II includes a saving clause which reserves the position and leaves the resolution of the matter to the further development of international law.
(7) Article 54 accordingly provides that the chapter on countermeasures does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against the responsible State to ensure cessa[
2135] 812 Tractatenblad van het Koninkrijk der Nederlanden, No. 140 (1975). See H.-H. Lindemann, “The repercussions resulting from the violation of human rights in Surinam on the contractual relations between the Netherlands and Surinam”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 44 (1984), p. 64, at pp. 68–69.
[2136] 813 R. C. R. Siekmann, “Netherlands State practice for the parliamentary year 1982–1983”, NYIL, 1984, vol. 15, p. 321.
[2137] 814 Official Journal of the European Communities, No. L 41 of 14 February 1983, p. 1; No. L 315 of 15 November 1991, p. 1, for the suspension; and No. L 325 of 27 November 1991, p. 23, for the denunciation.
[2138] 815 See also the decision of the European Court of Justice in A. Racke GmbH and Co. v. Hauptzollamt Mainz, case C-162/96, Reports of cases before the Court of Justice and the Court of First Instance, 1998–6, p. I–3655, at pp. 3706–3708, paras. 53–59.
[2139] 816 Cf. Military and Paramilitary Activities in and against Nicaragua (footnote [30] 36 above) where ICJ noted that action by way of collective self-defence could not be taken by a third State except at the request of the State subjected to the armed attack (p. 105, para. 199).
Article 54 531
tion of the breach and reparation in the interest of the injured State or the beneficiaries of the obligation breached. The article speaks of “lawful measures” rather than “countermeasures” so as not to prejudice any position concerning measures taken by States other than the injured State in response to breaches of obligations for the protection of the collective interest or those owed to the international community as a whole.
532
Part Four
GENERAL PROVISIONS
This Part contains a number of general provisions applicable to the articles as a whole, specifying either their scope or certain matters not dealt with. First, article 55 makes it clear by reference to the lex specialis principle that the articles have a residual character. Where some matter otherwise dealt with in the articles is governed by a special rule of international law, the latter will prevail to the extent of any inconsistency. Correlatively, article 56 makes it clear that the articles are not exhaustive, and that they do not affect other applicable rules of international law on matters not dealt with. There follow three saving clauses. Article 57 excludes from the scope of the articles questions concerning the responsibility of international organizations and of States for the acts of international organizations. The articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State, and this is made clear by article 58. Finally, article 59 reserves the effects of the Charter of the United Nations itself.
533
Article 55. Lex specialis
These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.
Commentary
(1) When defining the primary obligations that apply between them, States often make special provision for the legal consequences of breaches of those obligations, and even for determining whether there has been such a breach. The question then is whether those provisions are exclusive, i.e. whether the consequences which would otherwise apply under general international law, or the rules that might otherwise have applied for determining a breach, are thereby excluded. A treaty may expressly provide for its relationship with other rules. Often, however, it will not do so and the question will then arise whether the specific provision is to coexist with or exclude the general rule that would otherwise apply.
(2) Article 55 provides that the articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or its legal consequences are determined by special rules of international law. It reflects the maxim lex specialis derogat legi generali. Although it may provide an important indication, this is only one of a number of possible approaches towards determining which of several rules potentially applicable is to prevail or whether the rules simply coexist. Another gives priority, as between the parties, to the rule which is later in time.[2140] 817 In certain cases the consequences that follow from a breach of some overriding rule may themselves have a peremptory character. For example, States cannot, even as between themselves, provide for legal consequences of a breach of their mutual obligations which would authorize acts contrary to peremptory norms of general international law. Thus, the assumption of article 55 is that the special rules in question have at least the same legal rank as those expressed in the articles. On that basis, article 55 makes it clear that the present articles operate in a residual way.
(3) It will depend on the special rule to establish the extent to which the more general rules on State responsibility set out in the present articles are displaced by that rule. In some cases, it will be clear from the language of a treaty or other text that only the consequences specified are to flow. Where that is so, the consequence will be “determined” by the special rule and the principle embodied in article [55] will apply. In other cases, one aspect of the general law may be modified, leaving other aspects still applicable. An example of the former is the WTO Understanding on Rules and Procedures governing the Settlement of Disputes as it relates to certain remedies.[2141] 818 An example of the latter is article 41 of Protocol No. 11 to the European Convention on Human Rights.[2142] 819 Both
[2140] 817 See paragraph 3 of article 30 of the 1969 Vienna Convention.
[2141] 818 See Marrakesh Agreement establishing the World Trade Organization, annex 2, especially art. 3, para. 7, which provides for compensation “only if the immediate withdrawal of the measure is impractical and as a temporary measure pending the withdrawal of the measure which is inconsistent with a covered agreement”. For WTO purposes, “compensation” refers to the future conduct, not past conduct, and involves a form of countermeasure. See article 22 of the Understanding. On the distinction between cessation and reparation for WTO purposes, see, e.g., Report of the Panel, Australia–Subsidies Provided to Producers and Exporters of Automotive Leather (footnote [1205] 431 above).
[2142] 819 See paragraph (2) of the commentary to article 32.
534 Article 55
concern matters dealt with in Part Two of the articles. The same considerations apply to Part One. Thus, a particular treaty might impose obligations on a State but define the “State” for that purpose in a way which produces different consequences than would otherwise flow from the rules of attribution in chapter II.[2143] 820 Or a treaty might exclude a State from relying on force majeure or necessity.
(4) For the lex specialis principle to apply it is not enough that the same subject matter is dealt with by two provisions; there must be some actual inconsistency between them, or else a discernible intention that one provision is to exclude the other. Thus, the question is essentially one of interpretation. For example, in the Neumeister case, the European Court of Human Rights held that the specific obligation in article 5, paragraph 5, of the European Convention on Human Rights for compensation for unlawful arrest or detention did not prevail over the more general provision for compensation in article 50. In the Court’s view, to have applied the lex specialis principle to article 5, paragraph 5, would have led to “consequences incompatible with the aim and object of the Convention”.[2144] 821 It was sufficient, in applying article 50, to take account of the specific provision.[2145] 822
(5) Article 55 is designed to cover both “strong” forms of lex specialis, including what are often referred to as self-contained regimes, as well as “weaker” forms such as specific treaty provisions on a single point, for example, a specific treaty provision excluding restitution. PCIJ referred to the notion of a self-contained regime in the S.S. “Wimbledon” case with respect to the transit provisions concerning the Kiel Canal in the Treaty of Versailles,[2146] 823 as did ICJ in the United States Diplomatic and Consular Staff in Tehran case with respect to remedies for abuse of diplomatic and consular privileges.[2147] 824
(6) The principle stated in article 55 applies to the articles as a whole. This point is made clear by the use of language (“the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State”) which reflects the content of each of Parts One, Two and Three.
[2143] 820 Thus, article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment only applies to torture committed “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. This is probably narrower than the bases for attribution of conduct to the State in Part One, chapter II. Cf. “federal” clauses, allowing certain component units of the State to be excluded from the scope of a treaty or limiting obligations of the federal State with respect to such units (e.g. article 34 of the Convention for the Protection of the World Cultural and Natural Heritage).
[2144] 821 Neumeister v. Austria, Eur. Court H.R., Series A, No. 17 (1974), paras. 28–31, especially para. 30.
[2145] 822 See also Mavrommatis (footnote [800] 236 above), pp. 29–33; Marcu Colleanu v. German State, Recueil des décisions des tribunaux arbitraux mixtes institués par les traités de paix (Paris, Sirey, 1930), vol. IX, p. 216 (1929); WTO, Report of the Panel, Turkey–Restrictions on Imports of Textile and Clothing Products (footnote [502] 130 above), paras. 9.87–9.95; Case concerning a dispute between Argentina and Chile concerning the Beagle Channel, UNRIAA, vol. XXI (Sales No. E/F. 95.V.2), p. 53, at p. 100, para. 39 (1977). See further C. W. Jenks, “The conflict of law‑making treaties”, BYBIL, 1953, vol. 30, p. 401; M. McDougal, H. D. Lasswell and J. C. Miller, The Interpretation of International Agreements and World Public Order: Principles of Content and Procedure (New Haven Press, 1994), pp. 200–206; and P. Reuter, Introduction to the Law of Treaties (footnote [945] 300 above), para. 201.
[2146] 823 S.S. “Wimbledon” (footnote [28] 34 above), pp. 23–24.
[2147] 824 United States Diplomatic and Consular Staff in Tehran (footnote [80] 59 above), at p. 40, para. 86. See paragraph (15) of the commentary to article 50 and also B. Simma, “Self-contained regimes”, NYIL, 1985, vol. 16, p. 111.
Article 55 535
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International arbitral tribunal (under the ICSID Additional Facility Rules)
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the United Mexican States
In its 2007 award, the tribunal established to hear the case of Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the United Mexican States considered the question of the relationship between the State responsibility articles and NAFTA. It recalled that
… the ILC Articles may be derogated from by treaty, as expressly recognized in Article 55 in relation to lex specialis … Accordingly, customary international law does not affect the conditions for the existence of a breach of the investment protection obligations under the NAFTA, as this is a matter which is specifically governed by Chapter Eleven [of NAFTA][2148] 87
and further that
[t]he customary international law [rules] that the ILC Articles codify do not apply to matters which are specifically governed by lex specialis—i.e., Chapter Eleven of the NAFTA in the present case.[2149] 88
However, notwithstanding its finding regarding Chapter Eleven of NAFTA, the tribunal went on to add that “customary international law continues to govern all matters not covered by Chapter Eleven” and that, “[i]n the context of Chapter Eleven, customary international law—as codified in the ILC Articles therefore operates in a residual way”. This was confirmed by article 1131, paragraph 1, of NAFTA, endorsing the Tribunal’s mandate to “… decide the issues in dispute in accordance with [NAFTA] and applicable rules of international law”.[2150] 89 This latter finding of the continued application of the State responsibility articles related to the tribunal’s treatment of the question of countermeasures. It held that “Chapter Eleven neither provides nor specifically prohibits the use of countermeasures. Therefore, the question of whether the countermeasures defence is available to the Respondent is not a question of lex specialis, but of customary international law”. Since, other than the special situation provided for in article 2019 of NAFTA, no provision is made for countermeasures, the tribunal held that “the default regime under customary international law applies to the present situation”.[2151] 90
[A/65/76, para. 54]
Arbitrations under article 22(6) of the WTO Dispute Settlement Understanding and articles 4(11) and 7(10) of the WTO Agreement on Subsidies and Countervailing Measures
United States—Subsidies on Upland Cotton, Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement and United States—
[2148] 87 See footnote [3] 4 above, para. 116.
[2149] 88 Ibid., para. 118.
[2150] 89 Ibid., para. 119.
[2151] 90 Ibid., para. 122.
536 Article 55
Subsidies on Upland Cotton, Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 7.10 of the SCM Agreement
In two decisions taken in 2009, the arbitrator in the United States—Subsidies on Upland Cotton, Recourse to Arbitration case noted that “by their own terms, the Articles of the ILC on State Responsibility do not purport to prevail over any specific provisions relating to the areas it covers that would be contained in specific legal instruments”, and quoted the following passage from the commentary to Part Three, Chapter II (“Countermeasures”) of the State responsibility articles:
In common with other chapters of these articles, the provisions on countermeasures are residual and may be excluded or modified by a special rule to the contrary (see article 55). Thus, a treaty provision precluding the suspension of performance of an obligation under any circumstances will exclude countermeasures with respect to the performance of the obligation. Likewise, a regime for dispute resolution to which States must resort in the event of a dispute, especially if (as with the WTO dispute settlement system) it requires an authorization to take measures in the nature of countermeasures in response to a proven breach.[2152] 91
[A/65/76, para. 55]
World Trade Organization panel
United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China
In United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, the panel, after finding that there existed “no basis for the assertion that as a general matter the Appellate Body and panels have found that the Draft Articles [on State responsibility] must be ‘taken into account’ as ‘rules of international law applicable in the relations between the parties’ in interpreting the WTO Agreement”,[2153] 200 and that “even by their own terms, the Draft Articles ‘do not attempt to define the content of the international obligations the breach of which gives rise to responsibility’”,[2154] 201 recalled that the State responsibility articles also contain a provision on lex specialis.[2155] 202 The panel then proceeded to explain why it considered article 1.1 of the SCM Agreement to be a special rule of international law:
[w]e view the taxonomy set forth in Article 1.1 of the SCM Agreement at heart as an attribution rule in the sense that it identifies what sorts of entities are and are not part of ‘government’ for purposes of the Agreement, as well as when ‘private’ actors may be said to be acting on behalf of ‘government’. This has precisely to do with ‘the content or implementation of the international responsibility of a State’ for purposes of the SCM Agreement, a further indication that the Draft Articles are not relevant to interpreting Article 1.1 of the SCM Agreement.[2156] 203
[A/68/72, para. 139]
[2152] 91 Case No. WT/DS267/ARB/1, Decision by the Arbitrator, 31 August 2009, footnote 129, and Case No. WT/DS267/ARB/2, Decision by the Arbitrator, 31 August 2009, footnote 69, quoting paragraph (9) of the introductory commentary to Part Three, Chapter II.
[2153] 200 See footnote [7] 5 above, para. 8.89.
[2154] 201 Ibid., para. 8.90 (quoting para. (1) of the General commentary of the State responsibility articles).
[2155] 202 Ibid., para. 8.90.
[2156] 203 Ibid. (quoting, inter alia, article 55).
Article 55 537
World Trade Organization Appellate Body
United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China
In United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, the Appellate Body considered the scope and meaning of article 55 of the State responsibility articles in the following terms:
[a]s we see it, Article 55 of the ILC Articles does not speak to the question of whether, for the purpose of interpreting Article 1.1(a)(1) of the SCM Agreement, a panel or the Appellate Body can take into account provisions of the ILC Articles … Article 55 addresses the question of which rule to apply where there are multiple rules addressing the same subject matter. The question in the present case, however, is not whether certain of the ILC Articles are to be applied … There is no doubt that the provision being applied in the present case is Article 1.1(a)(1). Rather, the question is, whether, when interpreting the terms of Article 1.1(a)(1), the relevant provisions of the ILC Articles may be taken into account as one among several interpretative elements. Thus, the treaty being applied is the SCM Agreement, and the attribution rules of the ILC Articles are to be taken into account in interpreting the meaning of the terms of that treaty. Article 55 of the ILC Articles does not speak to the issue of how the latter should be done.[2157] 204
[A/68/72, para. 140]
International arbitral tribunal (under the ICSID Convention)
Adel A Hamadi Al Tamimi v. Sultanate of Oman
In Adel A Hamadi Al Tamimi v. Sultanate of Oman, the arbitral tribunal accepted the respondent’s submission that “contracting parties to a treaty may, by specific provision (lex specialis), limit the circumstances under which the acts of an entity will be attributed to the State. To the extent that the parties have elected to do so, any broader principles of State responsibility under customary international law or as represented in the ILC Articles cannot be directly relevant”.[2158] 236
[A/71/80, para. 158]
Permanent Court of Arbitration (under UNCITRAL Rules)
Mesa Power Group v. Government of Canada
In Mesa Power Group v. Government of Canada, the arbitral tribunal referred to article 55 of the State responsibility articles when finding that “Article 1503(2) [of NAFTA] constitutes a lex specialis that excludes the application of Article 5 of the ILC Articles”.[2159] 249
[A/74/83, p. 42]
[2157] 204 See footnote [13] 11 above, para. 316.
[2158] 236 See footnote [340] 66 above, para. 321 (footnote omitted).
[2159] 249 PCA, Case No. 2012–17, Award, 24 March 2016, paras. 359, 362 and 365.
538 Article 55
International arbitral tribunal (under the ICSID Convention)
Vestey Group Limited v. Bolivarian Republic of Venezuela
The arbitral tribunal in Vestey Group Limited v. Bolivarian Republic of Venezuela cited article 55 to note that “States are free to derogate from this general framework of responsibility”.[2160] 250
[A/74/83, p. 42]
[2160] 250 ICSID, Case No. ARB/06/4, Award, 15 April 2016, para. 326 and footnote 307.
539
Article 56. Questions of State responsibility not regulated by these articles
The applicable rules of international law continue to govern questions concerning the responsibility of a State for an internationally wrongful act to the extent that they are not regulated by these articles.
Commentary
(1) The present articles set out by way of codification and progressive development the general secondary rules of State responsibility. In that context, article 56 has two functions. First, it preserves the application of the rules of customary international law concerning State responsibility on matters not covered by the articles. Secondly, it preserves other rules concerning the effects of a breach of an international obligation which do not involve issues of State responsibility but stem from the law of treaties or other areas of international law. It complements the lex specialis principle stated in article 55. Like article 55, it is not limited to the legal consequences of wrongful acts but applies to the whole regime of State responsibility set out in the articles.
(2) As to the first of these functions, the articles do not purport to state all the consequences of an internationally wrongful act even under existing international law and there is no intention of precluding the further development of the law on State responsibility. For example, the principle of law expressed in the maxim ex injuria jus non oritur may generate new legal consequences in the field of responsibility.[2161] 825 In this respect, article 56 mirrors the preambular paragraph of the 1969 Vienna Convention which affirms that “the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention”. However, matters of State responsibility are not only regulated by customary international law but also by some treaties; hence article 56 refers to the “applicable rules of international law”.
(3) A second function served by article 56 is to make it clear that the present articles are not concerned with any legal effects of a breach of an international obligation which do not flow from the rules of State responsibility, but stem from the law of treaties or other areas of law. Examples include the invalidity of a treaty procured by an unlawful use of force,[2162] 826 the exclusion of reliance on a fundamental change of circumstances where the change in question results from a breach of an international obligation of the invoking State to any other State party,[2163] 827 or the termination of the international obligation violated in the case of a material breach of a bilateral treaty.[2164] 828
[2161] 825 Another possible example, related to the determination whether there has been a breach of an international obligation, is the so-called principle of “approximate application”, formulated by Sir Hersch Lauterpacht in Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion, I.C.J. Reports 1956, p. 23, at p. 46. In the Gabčíkovo-Nagymaros Project case (footnote [31] 37 above), the Court said that “even if such a principle existed, it could by definition only be employed within the limits of the treaty in question” (p. 53, para. 76). See also S. Rosenne, Breach of Treaty (footnote [1150] 411 above), pp. 96–101.
[2162] 826 1969 Vienna Convention, art. 52.
[2163] 827 Ibid., art. 62, para. 2 (b).
[2164] 828 Ibid., art. 60, para 1.
540 Article 56
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
Eritrea-Ethiopia Claims Commission
Ethiopia’s Damages Claims, Final Award, 17 August 2009 and Eritrea’s Damages Claims, Final Award, 17 August 2009
In its 2009 final award on Ethiopia’s Damages Claims, the Eritrea-Ethiopia Claims Commission noted that the “size of the Parties’ claims raised potentially serious questions involving the intersection of the law of State responsibility with fundamental human rights norms”. It recalled that an earlier version of the State responsibility articles had included a qualification that “[i]n no case may a people be deprived of its own means of subsistence”, which was also reflected in article 1, paragraph 2, of both Human Rights Covenants.[2165] 92 The Claims Commission proceeded to confirm that, while such qualification was not included in the 2001 text, that did “not alter the fundamental human rights law rule of common Article 1(2) in the Covenants, which unquestionably applies to the Parties”.[2166] 93
[A/65/76, para. 56]
[2165] 92 See article 31.
[2166] 93 Ethiopia’s Damages Claims (footnote [1280] 47 above), para. 19, and Eritrea’s Damages Claims (footnote [1280] 47 above), para. 19.
541
Article 57. Responsibility of an international organization
These articles are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization.
Commentary
(1) Article 57 is a saving clause which reserves two related issues from the scope of the articles. These concern, first, any question involving the responsibility of international organizations, and secondly, any question concerning the responsibility of any State for the conduct of an international organization.
(2) In accordance with the articles prepared by the Commission on other topics, the expression “international organization” means an “intergovernmental organization”.[2167] 829 Such an organization possesses separate legal personality under international law,[2168] 830 and is responsible for its own acts, i.e. for acts which are carried out by the organization through its own organs or officials.[2169] 831 By contrast, where a number of States act together through their own organs as distinct from those of an international organization, the conduct in question is that of the States concerned, in accordance with the principles set out in chapter II of Part One. In such cases, as article 47 confirms, each State remains responsible for its own conduct.
(3) Just as a State may second officials to another State, putting them at its disposal so that they act for the purposes of and under the control of the latter, so the same could occur as between an international organization and a State. The former situation is covered by article 6. As to the latter situation, if a State seconds officials to an international organization so that they act as organs or officials of the organization, their conduct will be attributable to the organization, not the sending State, and will fall outside the scope of the articles. As to the converse situation, in practice there do not seem to be convincing examples of organs of international organizations which have been “placed at the disposal of” a State in the sense of article 6,[2170] 832 and there is no need to provide expressly for the possibility.
[2167] 829 See article 2, paragraph 1 (i), of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (hereinafter “the 1986 Vienna Convention”).
[2168] 830 A firm foundation for the international personality of the United Nations is laid in the advisory opinion of the Court in Reparation for Injuries (footnote [32] 38 above), at p. 179.
[2169] 831 As the Court has observed, “the question of immunity from legal process is distinct from the issue of compensation for any damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity. The United Nations may be required to bear responsibility for the damage arising from such acts”, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (footnote [50] 56 above).
[2170] 832 Cf. Yearbook … 1974, vol. II (Part One), pp. 286–290. The High Commissioner for the Free City of Danzig was appointed by the League of Nations Council and was responsible to it; see Treatment of Polish Nationals (footnote [134] 75 above). Although the High Commissioner exercised powers in relation to Danzig, it is doubtful that he was placed at the disposal of Danzig within the meaning of article 6. The position of the High Representative, appointed pursuant to annex 10 of the General Framework Agreement for Peace in Bosnia and Herzegovina of 14 December 1995, is also unclear. The Constitutional Court of Bosnia and Herzegovina has held that the High Representative has a dual role, both as an international agent and as an official in certain circumstances acting in and for Bosnia and
542 Article 57
(4) Article 57 also excludes from the scope of the articles issues of the responsibility of a State for the acts of an international organization, i.e. those cases where the international organization is the actor and the State is said to be responsible by virtue of its involvement in the conduct of the organization or by virtue of its membership of the organization. Formally, such issues could fall within the scope of the present articles since they concern questions of State responsibility akin to those dealt with in chapter IV of Part One. But they raise controversial substantive questions as to the functioning of international organizations and the relations between their members, questions which are better dealt with in the context of the law of international organizations.[2171] 833
(5) On the other hand article 57 does not exclude from the scope of the articles any question of the responsibility of a State for its own conduct, i.e. for conduct attributable to it under chapter II of Part One, not being conduct performed by an organ of an international organization. In this respect the scope of article 57 is narrow. It covers only what is sometimes referred to as the derivative or secondary liability of member States for the acts or debts of an international organization.[2172] 834
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International Tribunal for the Former Yugoslavia
Prosecutor v. Dragan Nikolić (“Sušica Camp”)
In its 2002 decision on defence motion challenging the exercise of jurisdiction by the tribunal in the Nikolić (“Sušica Camp”) case, Trial Chamber II needed to consider the situation in which “some unknown individuals arrested the Accused in the territory of the [Federal Republic of Yugoslavia] and brought him across the border with Bosnia and Herzegovina and into the custody of SFOR”.[2173] 238 In this context, the Trial Chamber noted Herzegovina; in the latter respect, the High Representative’s acts are subject to constitutional control. See Case U 9/00 on the Law on the State Border Service, Official Journal of Bosnia and Herzegovina, No. 1/01 of 19 January 2001.
[2171] 833 This area of international law has acquired significance following controversies, inter alia, over the International Tin Council: J. H. Rayner (Mincing Lane) Ltd. v. Department of Trade and Industry, case 2 A.C. 418 (1990) (England, House of Lords); Maclaine Watson and Co., Ltd. v. Council and Commission of the European Communities, case C-241/87, Reports of cases before the Court of Justice and the Court of First Instance, 1990–5, p. I–1797; and the Arab Organization for Industrialization (Westland Helicopters Ltd. v. Arab Organization for Industrialization, ILR, vol. 80, p. 595 (1985) (International Chamber of Commerce Award); Arab Organization for Industrialization v. Westland Helicopters Ltd., ibid., p. 622 (1987) (Switzerland, Federal Supreme Court); Westland Helicopters Ltd. v. Arab Organization for Industrialization, ibid., vol. 108, p. 564 (1994) (England, High Court). See also Waite and Kennedy v. Germany, Eur. Court H.R., Reports, 1999–I, p. 393 (1999).
[2172] 834 See the work of the Institute of International Law under R. Higgins, Yearbook of the Institute of International Law, vol. 66–I (1995), p. 251, and vol. 66–II (1996), p. 444. See also P. Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant Editions de l’Université de Bruxelles, 1998). See further WTO, Report of the Panel, Turkey: Restrictions on Imports of Textile and Clothing Products (footnote [502] 130).
[2173] 238 International Tribunal for the Former Yugoslavia, Trial Chamber II, Prosecutor v. Dragan Nikolić (“Sušica Camp”), Decision on Defence Motion Challenging the Exercise of Jurisdiction by the TriArticle
57 543
in particular, quoting article 57 finally adopted by the International Law Commission in 2001, that the Commission’s articles were “primarily directed at the responsibilities of States and not at those of international organizations or entities”.[2174] 239
[A/62/62, para. 134]bunal, 9 October 2002, Case No. IT-94–2-PT, para. 57.
[2174] 239 Ibid., para. 60. For the complete passage, see [pp. 174–175] above.
544
Article 58. Individual responsibility
These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.
Commentary
(1) Article 58 makes clear that the articles as a whole do not address any question of the individual responsibility under international law of any person acting on behalf of a State. It clarifies a matter which could be inferred in any case from the fact that the articles only address issues relating to the responsibility of States.
(2) The principle that individuals, including State officials, may be responsible under international law was established in the aftermath of the Second World War. It was included in the London Charter of 1945 which established the Nuremberg Tribunal[2175] 835 and was subsequently endorsed by the General Assembly.[2176] 836 It underpins more recent developments in the field of international criminal law, including the two ad hoc tribunals and the Rome Statute of the International Criminal Court.[2177] 837 So far this principle has operated in the field of criminal responsibility, but it is not excluded that developments may occur in the field of individual civil responsibility.[2178] 838 As a saving clause, article 58 is not intended to exclude that possibility; hence the use of the general term “individual responsibility”.
(3) Where crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them. In certain cases, in particular aggression, the State will by definition be involved. Even so, the question of individual responsibility is in principle distinct from the question of State responsibility.[2179] 839 The State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out.[2180] 840 Nor may those officials hide behind the State in respect of their own responsibility for conduct of theirs which is contrary to rules of international law which are applicable to them. The former principle is reflected, for example, in article 25, paragraph 4, of the Rome Statute of the International Criminal Court, which provides that “[n]o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.” The latter is reflected, for example, in the
[2175] 835 See footnote [1873] 636 above.
[2176] 836 General Assembly resolution 95 (I) of 11 December 1946. See also the Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, elaborated by the International Law Commission, Yearbook … 1950, vol. II, p. 374, document A/1316.
[2177] 837 See paragraph (6) of the commentary to chapter III of Part Two.
[2178] 838 See, e.g., article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, dealing with compensation for victims of torture.
[2179] 839 See, e.g., Streletz, Kessler and Krenz v. Germany (application Nos. 34044/96, 35532/97 and 44801/98), judgment of 22 March 2001, Eur. Court H.R., Reports, 2001–II: “If the GDR still existed, it would be responsible from the viewpoint of international law for the acts concerned. It remains to be established that alongside that State responsibility the applicants individually bore criminal responsibility at the material time” (para. 104).
[2180] 840 Prosecution and punishment of responsible State officials may be relevant to reparation, especially satisfaction: see paragraph (5) of the commentary to article 36.
Article 58 545
well-established principle that official position does not excuse a person from individual criminal responsibility under international law.[2181] 841
(4) Article 58 reflects this situation, making it clear that the articles do not address the question of the individual responsibility under international law of any person acting on behalf of a State. The term “individual responsibility” has acquired an accepted meaning in the light of the Rome Statute and other instruments; it refers to the responsibility of individual persons, including State officials, under certain rules of international law for conduct such as genocide, war crimes and crimes against humanity.
DECISIONS OF INTERNATIONAL COURTS, TRIBUNALS AND OTHER BODIES
International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
In its 2007 judgment in the Genocide case, the Court, in response to the Respondent’s argument that the nature of the Genocide Convention was such as to exclude from its scope State responsibility for genocide and the other enumerated acts, referred to article 58 finally adopted by the International Law Commission in 2001, and the commentary thereto:
The Court observes that that duality of responsibility continues to be a constant feature of international law. This feature is reflected in Article 25, paragraph 4, of the Rome Statute for the International Criminal Court, now accepted by 104 States: ‘No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.’ The Court notes also that the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts (Annex to General Assembly resolution 56/83, 12 December 2001) … affirm in Article 58 the other side of the coin: ‘These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.’ In its commentary on this provision, the Commission said:
“Where crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them. In certain cases, in particular aggression, the State will by definition be involved. Even so, the question of individual responsibility is in principle distinct from the question of State responsibility. The State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out.” (ILC commentary on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, [Yearbook of the International Law Commission, 2001, vol. II (Part Two)], article 58, para. (3).)
The Commission quoted Article 25, paragraph 4, of the Rome Statute, and concluded as follows:
“Article 58 … [makes] it clear that the Articles do not address the question of the individual responsibility under international law of any person acting on behalf of a State. The term ‘individual responsibility’ has acquired an accepted meaning in light of the Rome Statute and
[2181] 841 See, e.g., the Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Principle III (footnote [2176] 836 above), p. 375; and article 27 of the Rome Statute of the International Criminal Court.
546 Article 58
other instruments; it refers to the responsibility of individual persons, including State officials, under certain rules of international law for conduct such as genocide, war crimes and crimes against humanity.”[2182] 13
[A/62/62/Add.1, para. 9]
European Court of Human Rights
Jones and Others v. the United Kingdom
In Jones and Others v. the United Kingdom, the European Court of Human Rights cited article 58 as relevant international law, noting that “Article 58 clarifies the position in respect of simultaneous individual responsibility”.[2183] 237 It also referred to the article in support of the finding that “there is no doubt that individuals may in certain circumstances also be personally liable for wrongful acts which engage the State’s responsibility, and that this personal liability exists alongside the State’s liability for the same acts”.[2184] 238 With regard to the existence of “a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials”, the Court more specifically observed that “[t]aking the applicants’ arguments at their strongest, there is evidence of recent debate surrounding … the interaction between State immunity and the rules on attribution in the Draft Articles on State Responsibility”.[2185] 239
[A/71/80, para. 159]
[2182] 13 See footnote [283] 3 above, para. 173.
[2183] 237 See footnote [323] 49 above, para. 109.
[2184] 238 Ibid., para. 207.
[2185] 239 Ibid., para. 213.
547
Article 59. Charter of the United Nations
These articles are without prejudice to the Charter of the United Nations.
Commentary
(1) In accordance with Article 103 of the Charter of the United Nations, “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” The focus of Article 103 is on treaty obligations inconsistent with obligations arising under the Charter. But such conflicts can have an incidence on issues dealt with in the articles, as for example in the Lockerbie cases.[2186] 842 More generally, the competent organs of the United Nations have often recommended or required that compensation be paid following conduct by a State characterized as a breach of its international obligations, and article 103 may have a role to play in such cases.
(2) Article 59 accordingly provides that the articles cannot affect and are without prejudice to the Charter of the United Nations. The articles are in all respects to be interpreted in conformity with the Charter.
[2186] 842 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 3; (Libyan Arab Jamahiriya v. United States of America), ibid., p. 114.