International Law Commission's Articles Research Articles

The Responsibility of the State for the Conduct of its Entities in ICSID Jurisprudence

It is a good omen that the tribunals have started applying International Law Commission's Articles on state’s responsibility in a logical order. But this application has created another inconsistency. Tribunals neither interpret these Articles consistently nor do they apply the same tests developed under an individual Article to determine the attribution of a specific act to a state. This inconsistent attitude is affecting the predictability of investment law. After highlighting the importance of consistency in this subject, this paper suggests the preferable interpretation to be adopted consistently.

Article 38: The Treatment of Interest in International Investment Arbitration

Abstract Given the breadth of topics in the Articles on State Responsibility, the guidance on interest contained in Article 38 could be easily overlooked. Yet discussions on this subject featured prominently in the work of the International Law Commission (ILC) spanning nearly four decades. Article 38 is also intrinsically relevant to international investment arbitration where the coveted remedy is monetary damages. Despite this, investment arbitration practitioners only make passing reference to Article 38 without fully appreciating the history of the ILCs discussions that inform the application of this provision. Facially, Article 38 seems to provide little direction and broadly defers to the discretion of arbitral tribunals on critical issues. On closer examination, however, the final text of Article 38 itself and its Commentary as well as the ILCs preparatory works provide rich insights for those engaged in interest determinations in investment arbitration. This essay analyzes the treatment of Article 38 by investment arbitration tribunals in conjunction with the ILCs discussions on this article and documents a number of areas where divergences between arbitral awards and the ILC Articles and Commentaries have emerged over time.

State Responsibility for the Conduct of Rebels in Situations of Unsuccessful Civil Wars: A Critical Analysis of the Cengiz v Libya Case

Abstract Based on an analysis of State practice and case law, this article examines one basic principle embodied in Article 10 of the International Law Commission Articles (ILC) on State responsibility: the wrongful acts committed by rebels during an insurrection or a civil war are not attributable to the State once the government defeats the insurgency. The article examines how investment tribunals can use Article 10 in the context of investor–State arbitration proceedings involving rebellions and civil wars. I will critically analyse the recent Cengiz v. Libya award rendered in the context of Libya’s civil war. I will show that the Tribunal failed to correctly applied Articles 4 and 10 of the ILC Articles. I will explain how the Tribunal could have made better use of the principles embodied in Article 10 to solve matters of State responsibility and attribution it was facing.

Marchal, Lemaire and Dewez v. Mukeshimana-Ngulinzira and Others; Belgian State v. Mukeshimana-Ngulinzira and Others

179State responsibility — Imputability — International Law Commission Articles on State Responsibility — International Law Commission Draft Articles on the Responsibility of International Organizations — Imputability in context of United Nations peacekeeping operations — Responsibility of troop-contributing countries — Ultimate control — Effective controlWar and armed conflict — Non-international armed conflict — United Nations — Peacekeeping — United Nations Assistance Mission for Rwanda (UNAMIR), 1993 — Rwandan genocide — The law of Belgium

The Once and Future Law of State Responsibility

AbstractThe current (once) international law of state responsibility is shaped by the International Law Commission's Articles on responsibility of States for internationally wrongful acts, generally endorsed in state and judicial practice as consonant with custom. This Essay makes the case that the global pandemic and associated practice may affect foundational elements of the (future) law of state responsibility. It outlines the contours of systemic grain of possible developments by reference to the tension between bilateralism and community interests in international law.

The Responsibility Not to Veto Revisited under the Theory of ‘Consequential Jus Cogens’

In this article, I argue that contemporary international law imposes an obligation upon the UN Security Council permanent members to refrain from using their veto repeatedly in ways that impede the Council from acting against violations of peremptory norms. This obligation not to veto emanates from the duty to cooperate to end violations of peremptory norms as enshrined in Article 41(1) of the International Law Commission Articles on State Responsibility. For this purpose, I demonstrate that the duty to cooperate itself possesses a peremptory character under the theory of ‘consequential jus cogens’, whereby effects of jus cogens norms are themselves peremptory. In doing so, this article contributes to the ongoing debates concerning the legal nature of the effects of jus cogens norms by showing that the theory of ‘consequential jus cogens’ is an application of the generally accepted maxim accessorium sequitur principale and thus forms part of positive international law.

The “International Community’S Interests” Element of the State of Necessity Test: Does It Make the Jus Cogens Limitation on Necessity Superfluous?

According to Article 25 par. 1 (b) and Article 26 of the 2001 International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, the concept of general international law peremptory norms and that of interests of “the international community as a whole” play an important role in shaping the state of necessity as one of the circumstances that preclude wrongfulness of States’ conduct under general international law. The limitation on the necessity defense, placed by the international community’s interest condition contained in Article 25 par. 1 (b) of the ILC Articles, serves as a safeguard for the interests protected by the erga omnes international obligations. The concepts of erga omnes and of general international law peremptory norms differ significantly and while all the norms of the latter type give rise to obligations erga omnes, not every such obligation arises out of peremptory norms. This evidences of an autonomous role of the relevant provision of Article 25 par. 1 (b) but not of the jus cogens limitation under Article 26 in the context of the necessity defense. The present article argues that the jus cogens limitation under Article 26 plays a role largely independent from that of Article 25 par. 1 (b) since it is incorrect to see the latter as an absolute guarantee of obligations erga omnes. The present article is a part of a larger project “Circumstances precluding wrongfulness of conduct: the analysis of functional role and applicability parameters in the framework of International Human Rights Law” supported by the Russian Foundation for Basic Research (RFBR Grant No. 18-011-00660).

A DUE DILIGENCE STANDARD OF ATTRIBUTION IN CYBERSPACE

AbstractThe technical and legal challenges of attribution in cyberspace prevent the meaningful operation of the international law framework of State responsibility. Despite the anticipation surrounding its publication, theTallinn Manual 2.0went no further than its predecessor in offering a cogent legal solution to this problem. Instead, the Manual confined its analysis of attribution to the well-known provisions of the International Law Commission's Articles on State Responsibility. This article departs from theTallinn Manual 2.0in arguing that the due diligence principle offers a preferable and appropriate standard of attribution in cyberspace.

AIDING AND ASSISTING: THE MENTAL ELEMENT UNDER ARTICLE 16 OF THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY

AbstractArticle 16 of the International Law Commission's Articles on State Responsibility provides that a State that aids or assists another State in the commission of an internationally wrongful act by the recipient State is internationally responsible, where certain conditions are fulfilled. This article clarifies one of those conditions, namely the difficult and contested issue of what degree of knowledge or intent engages the responsibility of an assisting State under Article 16. The article focuses particularly on assistance in armed conflict and counterterrorism situations, which increasingly feature some form of operational or intelligence cooperation between States.

The Law of International Responsibility

1. Part of the Oxford Commentaries on International Law series, The Law of International Responsibility, edited by James Crawford, Alain Pellet and Simon Olleson, as well as Kate Parlett (assistant editor), is an excellent addition to the growing literature on the topic of international responsibility. 2. Running as long as 1296 pages plus a thick set of preliminaries, this book contains 86 chapters commenting on various aspects of international responsibility, “which may arise in a multifaceted international legal system” (p. v). While critiquing the International Law Commission (ILC) Articles on State Responsibility (2001),1 as well as others such as the ILC Articles on Diplomatic Protection (2006) and its Draft Articles on the Responsibility of International Organization (adopted on first reading in 2009), the 86 chapters are not organized as article-by-article commentaries but by subject matter and conceptual issues. 3. The book is divided into five parts: Part I, Introduction—Responsibility and International Law; Part II, International Responsibility—Development and Relation with Other Laws; Part III, The Sources of International Responsibility; Part IV, The Content of International Responsibility; and Part V, The Implementation of International Responsibility. The first two parts deal with some conceptual, general as well as systemic issues. The last three parts correspond to the first three parts of the ILC Articles on State Responsibility, respectively.

International Law Commission Articles on State Responsibility and Investor-State Arbitration: Do Investors Have Rights?

International Law Commission Articles on State Responsibility and Investor-State Arbitration: Do Investors Have Rights?

Argentine Necessity Case

1State responsibility — Necessity — Whether part of customary international law — Effect of a declaration of necessity on private contracts — Economic necessity based on a State’s inability to pay — Temporary suspension of payments on sovereign bonds — Effect in relations between a State and a private individual under private law — International Law Commission Articles on State Responsibility, Article 25 — Whether declaratory of customary international lawEconomics, trade and finance — Sovereign debt — Foreign currency bonds — State suspending payments in foreign currency due to economic crisis — Whether justified by defence of necessity — The law of the Federal Republic of Germany

REBELLION AND STATE RESPONSIBILITY: WRONGDOING BY DEMOCRATICALLY ELECTED INSURGENTS

This paper argues that the rule enshrined in article 10 of the International Law Commission's articles on State responsibility, according to which violations of international law by rebels that subsequently seize power are attributable to the State, rests neither on sound precedential nor systemic grounds. It seeks to demonstrate that this provision rather constitutes the outcome of a political choice to lessen impunity and promote accountability in case of violation of international law by non-State actors. Since the rule is not based on any precise precedent nor systemic logic but only on political motives, there is no reason why one could not resort to similar motives to attempt to refine the currently hazy scope of application of that rule. Along this line of reasoning, this paper submits that - contrary to what has been advocated by the ILC and its Special Rapporteur - excluding the responsibility of the State for acts committed by victorious rebels in situations of national reconciliation or power-sharing agreements is not justified. It is argued that the exclusion of the application of the rule of attribution of the victorious rebels should only apply in cases where rebels eventually seize power through democratic elections. It is eventually explained that the ILC's limitation to the scope of application of article 10 could have been more easily justified if the responsibility of the State for acts of victorious rebels had been designed as a rule of attribution of responsibility and not as a rule of attribution of conduct.

Passing the Buck: State Responsibility for Private Military Companies

States hire private military or security companies [PMSCs/contractors] in armed conflict and occupation to fulfil tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. PMSC personnel, like soldiers, can and do violate or act incompatibly with International Humanitarian Law and Human Rights Law. Relying on the International Law Commission's Articles on State Responsibility, the article compares the responsibility of states for such conduct of their soldiers with that which states incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. Positive obligations of states under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to prevent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap – although important – remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state as that of ‘persons forming part of its armed forces’ in the sense of the customary provision enshrined in Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers, which fully eliminates the regulatory gap.

When do the Activities of Private Parties Trigger WTO Rules?

abstractAs scrutiny of government actions affecting international trade relations continues to increase, the relevance of private party actions having an impact on those relations may gain in importance. Since the 1960s, the GATT member states have been cognizant of the role that private parties can play in disrupting the natural competitive economic relationships extant between countries. A handful of GATT and WTO adjudicative determinations over the intervening four and a half decades have initiated the process of fleshing-out the conditions under which GATT/WTO legal disciplines apply to private party action as a consequence of ascribing such action to the government of a relevant member state. What follows reviews those adjudicative determinations and distills the themes and conditions for attribution articulated therein. It also reviews what could be offered GATT/WTO dispute settlement bodies were consideration to be given to the international rules regarding state responsibility for acts of individuals. From an examination of article 8 of the 2001 International Law Commission's articles on state responsibility in particular, it is suggested a somewhat narrow understanding of attribution should obtain, and that such an understanding can be seen as in conformance with the basic thrust of international economic law, extant GATT/WTO case law, and sound policy.

New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement

There is a well-established principle of international law according to which whenever an insurrectional movement succeeds in creating a new state, the new state should be held responsible for obligations arising from internationally wrongful acts committed by the insurrectional movement against third states during the armed struggle for independence. The principle is clearly stated in Article 10(2) of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts. The issue has, surprisingly, not been the object of great attention by legal scholars. This article examines the different possible theoretical foundations in support of this principle. It is submitted that the new state should remain responsible for acts which took place before its independence because there is a 'structural' and 'organic' continuity of the legal personality of the organization of the rebels with that of the new state. There is, however, only limited state practice in support of this principle. The analysis of the concrete application of this principle for different types of succession of states leads the author to conclude that it should find application in all cases because of its fair and equitable consequences.

James Crawford, The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries. Cambridge University Press, Cambridge, 422 pp., DOI: 10.2277/0521013895, GBP 22.99 (paperback), 10.2277/0521813530, GBP 65.00 (hardback),

James Crawford, The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries. Cambridge University Press, Cambridge, 422 pp., DOI: 10.2277/0521013895, GBP 22.99 (paperback), 10.2277/0521813530, GBP 65.00 (hardback),

I Book Review: The International Law Commission's Articles on State Responsibility

I Book Review: The International Law Commission's Articles on State Responsibility

The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries. By James Crawford. Cambridge: Cambridge University Press, 2002. xxxiii +387 pp. 55 hb, 19.95 pb

The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries. By James Crawford. Cambridge: Cambridge University Press, 2002. xxxiii +387 pp. 55 hb, 19.95 pb

The International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts Adopted on Second Reading

In 2001 the International Law Commission finally adopted on second reading the Draft Articles on Responsibility of States for Internationally Wrongful Acts and the commentaries thereto, thereby successfully concluding almost half a century of work on the topic by the ILC. Subsequent to the adoption, the General Assembly welcomed the conclusion of the work of the ILC. This article highlights the main changes made during the second reading 1998–2001, among them the issue of international crimes, the concept of injured state and countermeasures. While the 59 articles are the result of compromise, they undoubtedly are a major achievement in one of the most important and most sensitive areas of international law. Ultimately they may be a useful tool to promote the enforcement of community interests in the international legal system.