International Law Of State Responsibility Research Articles

The Legal Consequences of a Violation: Reparation/Just Satisfaction/Damages by Human Rights Bodies and Investment Tribunals

Abstract Remedies granted by both human rights courts and investment tribunals are generally based on the international law of state responsibility as codified by the International Law Commission (ILC) in 2001. However, some special rules (leges speciales) do exist in the statutes of human rights courts and in a few international investment agreements. Despite the different scopes of protection of the two areas of international law, there are remarkable similarities in judicial practice, yet important differences remain. This article explores to what extent there is already mutual influence in practice and where there is still room for mutual inspiration. It comes to the conclusion that investment tribunals could take more into consideration that victims may suffer damage, in particular non-material damage, by the mere violation of their rights. Conversely, human rights courts could pay closer attention to economic valuation criteria when it comes to the assessment of material damage.

Frameworks for Accountability: How Domestic Tort Law Can Inform the Development of International Law of State Responsibility in Armed Conflicts

Frameworks for Accountability: How Domestic Tort Law Can Inform the Development of International Law of State Responsibility in Armed Conflicts

James Crawford AC SC FBA (1948–2021): The General Law of State Responsibility and the Specific Case of Investment Claims

It was characteristic of the generosity of spirit of James Crawford—mentor and friend—that, when we wrote last year to ask him whether he would serve as guest editor of this special issue of the Review, he immediately accepted. His passing on 31 May 2021 is a huge loss on a personal level, as well as for the discipline of public international law, a field to which he made an immeasurable contribution over the course of his life in every dimension: as a scholar and teacher; arbitrator and judge; and as law reformer. Professor Freya Baetens has now kindly completed the introductory essay for this issue that she and James co-authored. It falls to me in this preface to say a word about James Crawford’s personal contribution to the development of the general international law of State responsibility and its relation to the special case of investment claims. This is no easy task. Crawford was himself reticent about his own role as the last Special Rapporteur (1997–2001) for the International Law Commission (ILC/the Commission) on the Responsibility of States for Internationally Wrongful Acts, leading to the adoption of draft Articles in 2001 (ARSIWA/the Articles). The record is replete with evidence of his contribution: as author of four reports as Special Rapporteur;2 in the Official Commentaries;3 and subsequently as author of both an introductory text and a detailed monograph;4 an edited collection;5 and several articles on the topic.6 Yet the Articles were, on any view, a collective enterprise, reflecting many voices, both within the Commission and of States. Nevertheless, there is reason to accord particular credit to James for their successful completion and, in turn, for the influence that they have had subsequently in the practice of States and in the decisions of international courts and tribunals. There is also reason to consider that, among all of his many contributions, the conclusion of ARSIWA stands as his most enduring achievement.

Concluding Remarks: ARSIWA - A Reference Text Partially Victim of Its Own Success?

After 40 years of work, the International Law Commission succeeded, 20 years ago, in completing its work of codifying the international law of State responsibility.2 This happy conclusion was reached, in large part, thanks to the intellectual mastery and diligent leadership of the ILC’s special rapporteur on this subject, Professor (later Judge) James Crawford to whom we would like to pay special tribute with this issue. The latter was invited, 10 years later, to make a first assessment in the ICSID Review of the way in which tribunals had so far used this codification text in order to resolve disputes between parties for whose relations it was not originally designed!3 Indeed, the draft codification of the law of responsibility is aimed at relations between two or more States, each with equal sovereignty. Intended to be applied solely...

International Law of State Responsibility and COVID-19: An Ideology Critique

Abstract Despite minimal prospects of success, international lawyers spent the first few months of the global pandemic discussing whether the rules of state responsibility could be invoked against states, especially China, for their acts and omissions regarding COVID-19. In this piece, we take these debates seriously, if not necessarily literally. We argue that the unrealistic nature of these debates does not make them irrelevant. Rather, we propose an ideology critique of state responsibility as a legal field. Our approach is two-fold. First, we argue these debates need to be situated within the rise of geopolitical competition between the US and its allies on the one hand and China on the other. In this context, state responsibility is always laid at the feet of one’s opponents. Secondly, we posit that my emphasising the role of states, recourse to state responsibility renders invisible the role of transnational processes of capitalist production and exchange that have profound effects on nature and set the stage for the emergence and spread of infectious diseases. Drawing from the work of the geographer Neil Smith, we argue against the ‘naturalisation’ of disasters performed much of the international legal discourse about COVID-19.

Attributing Conduct in the Law of State Responsibility: Lessons from Dutch Courts Applying the Control Standard in the Context of International Military Operations

In two decisions of 2019, the Dutch courts have come up with novel interpretations of the ‘control-based’ standard of attribution in the international law of State responsibility. This is a standard of attribution that is laid down in Article 8 of the International Law Commission‘s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), which is, by and large, reflective of customary international law. The traditional understanding of Article 8 ARSIWA is that it applies to relations between States and private persons or entities, in particular armed groups: conduct of a non-State armed group is attributed to a State to the extent that the State exercises control over that group. However, the Dutch courts have extended the scope of application of Article 8 ARSIWA to conduct of organs of international organisations (the UN) as well as foreign States (<em>i.e.</em>, States other than the Netherlands). Internationally speaking, this is a novel interpretation of Article 8 ARSIWA, for which there are no precedents. After introducing the Dutch courts’ reasoning in these cases, the contribution zooms out and inquires what the Dutch evolutions imply for the development of the controlbased attribution standard in the international law of State responsibility. The author argues that the relatively peculiar interpretation of Article 8 ARSIWA, as applying to interactions between States and international organisations and between States inter se, is practically viable in a narrow range of scenarios characterised by relatively strong politico-military relations and hierarchies.

International Law of State Responsibility and COVID-19: an Ideology Critique

In its initial stages, the international legal discourse around COVID-19 focused heavily on two narrow questions: first, the international legality of lockdowns, and secondly whether China could be held legally responsible for the pandemic. In September 2020, Donald Trump called upon the UN to find China responsible for COVID-19. Similarly, Australia called for a fact finding mission over the question of China’s state responsibility. For its part China has rebuffed such claims, at one point seeming to place responsibility for the pandemic with the WHO or, more recently, with imported frozen food that allegedly triggered a super-spreader event at the Wuhan food market. These accusations are not simply of concern to a small number of government-employed international lawyers. The popular international law blog EJIL:Talk! announced in late 2020 that its most read post for the year was a piece by Peter Tzeng on the possibility of holding China internationally responsible for the pandemic. Tzeng’s piece was part of – and itself generated – a flurry of academic commentary on China’s potential legal responsibility. Of course, one could retort here that the combination of veto rights at the UN Security Council, the absence of obvious grounds for ICJ jurisdiction and the operation of sovereign immunity make the possibility of China (or any other state for that matter) facing proceedings over COVID-19 wildly implausible. Questions of proof – both in the light of non-cooperation but also sheer uncertainty – and causation make the suggestion that anyone will be held internationally responsible sound like a cruel joke. One would be tempted to dismiss, then, these discussions as being irrelevant, as the expressions of an out-of-touch profession on the part of lawyers and simple rhetoric on the part of states.However, it is important to resist this ‘realist’ impulse. It cannot explain why these ‘impossible’ accusations have recurred with such frequency in the discourse around the pandemic. Indeed, from this perspective it is the sheer implausibility of these legal schemes that makes their popularity worth interrogating. Why, in such a practice-orientated field as law, does such an seemingly impracticalset of accusations recur? Our argument is that law, including international law, has many functions: it represses, it distributes resources, opportunities and violence, and it produces representations of our relationship with the world, or, in other words, it operates as an ideology. Our intervention is concerned with this latter, ideological function of law. In particular, we seek to detect and critique the specific representations about the relationship between states, capital, and global disaster that are implicitly articulated through discussions of state responsibility for the pandemic.

The League of Nations and the International Law of State Responsibility

The League of Nations set up The Hague codification conference that focused, among three specific agendas, on the responsibility of states for damage caused in their territory to the person or property of foreigners. Scholarship has dominantly ignored or considered the work of the League of Nations in the law of state responsibility as a failure, starting the story of the codification with the International Law Commission. This article proposes to rethink the dominant view and claims that the League of Nations’s codification process not only initiated, but substantially contributed to the codification of the law of state responsibility, leading to lasting methods, concepts, principles and norms that have been integrated in the contemporary canon of the rules of state responsibility.

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 League of Nations and the International Law of State Responsibility

Abstract The League of Nations set up The Hague codification conference that focused, among three specific agendas, on the responsibility of states for damage caused in their territory to the person or property of foreigners. Scholarship has dominantly ignored or considered the work of the League of Nations in the law of state responsibility as a failure, starting the story of the codification with the International Law Commission. This article proposes to rethink the dominant view and claims that the League of Nations’ codification process not only initiated, but substantially contributed to the codification of the law of state responsibility, leading to lasting methods, concepts, principles and norms that have been integrated in the contemporary canon of the rules of state responsibility.

A Case Against Crippling Compensation in International Law of State Responsibility

AbstractThe obligation of States to provide full reparation for internationally wrongful acts, including by full compensation, is one of the bedrock principles of international law. The article challenges this principle for cases where compensation is crippling for the responsible State or its peoples, which can occur when State responsibility is implemented before international courts and tribunals. The International Law Commission's decision not to qualify full reparation for instances of crippling compensation in its influential Articles on State responsibility was an unpersuasive legal position to adopt in 2001, and its rationale has aged badly. However, the failure by States and other actors to challenge it in the following two decades signified its endorsement by the international legal process. Nevertheless, the case against the permissibility of crippling compensation in modern international law can still be made, both on a case‐by‐case basis and at the level of customary secondary rules of State responsibility.

Reflections on the role of due diligence in clarifying State discretionary powers in developing Arctic natural resources

AbstractThis article argues that the concept of diligence provides a useful role in clarifying (and perhaps narrowing) the discretionary powers of the State with respect to the development of natural resources. The claim has two branches. First, the concept of due diligence plays an important role in bridging the normative gap between the harms caused by private actors and the international law of State responsibility. It is the vehicle by which States can be made to assume responsibility for private developments within their jurisdiction and control that cause harm to other States. Second, the concept of due diligence plays an important role (a “generative role”) in teasing out the detailed logical implications of more abstract primary norms such as the duty of prevention. These derivative duties include the duties to make a preliminary assessment of whether the proposed activity may cause a risk of significant transboundary harm: to conduct an environmental impact assessment (EIA) if there is a risk of significant harm and, if the EIA confirms that risk, to notify and consult with respect to possible measures to prevent or mitigate that risk. The article demonstrates both of these claims through an examination of the jurisprudence of the International Court of Justice, the International Tribunal for the Law of the Sea and arbitral awards. Finally, the article applies these claims in the context of possible resource developments in Alaska, British Columbia and Yukon that may have transboundary implications.

State responsibility and positive obligations in the European Court of Human Rights: The contribution of the ICJ in advancing towards more judicial integration

AbstractThe European Court of Human Rights (ECtHR) follows its own rules regarding the responsibility of states, although the international law of state responsibility enshrined in the International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) remains, as general international law, relevant to its decisions. However, case law of the ECtHR shows that the Court is departing from certain ARSIWA principles as it adopts a broad interpretation of rights contained in the European Convention on Human Rights (ECHR) giving rise to positive obligations.1Exploring those trends in the state responsibility regime of the ECHR, this article argues that, by clarifying certain ARSIWA provisions, the International Court of Justice (ICJ) can play an important role by contributing to a higher degree of judicial integration on the law of state responsibility. It is desirable that the ICJ takes any upcoming opportunity to provide greater clarity on the challenges and nuances of the applicability of the law of state responsibility, in particular as it relates to positive obligations. That would contribute to a more systematic use of those rules by regional courts such as the ECtHR, and ultimately to guaranteeing a greater protection of human rights.

International law of state responsibility and the ECHR: symbiosis or estrangement?

In recent years, the European continent has been shook by a number of illegal acts of aggression characterized by asymmetric warfare which have significantly undermined security in the region. Utilisation of unorthodox military tactics that weaponise information and heavily employ the use of non-State actors in direct hostilities has put an incremental challenge to many fundamental legal notions under international law and the European Convention of Human Rights (ECHR) .This article offers an inductive analysis of the ECtHR’s jurisprudence with regards State responsibility in the contested regions which aims to identify a clear pattern based on the Court’s reasoning. The article makes reference to the relevant rules under international law of State responsibility and briefly examines their interplay with the ECHR. Particular regard is also given to relevant legal literature, specifically, generalist and Convention-specific authors that have examined similar questions in their contributions.The analysis delineates between salient legal issues such as the position of general international law and its relationship with the ECHR.The article offers an overview of the relevant caselaw and inductive analysis of the approach taken by the Court. One of the main takeaways of the article is that the framework of ARISWA is relevant to the ECHR in so far as it covers the gaps in the Convention as was demonstrated in the analysis of the relevant case-law. Additionally, it appears that the Court has decided to develop its own distinct jurisprudence on State responsibility that in many aspects substantially differs from what is envisaged under ARISWA. The interconnected nature yet distinctly separate function of the frequently confused legal concepts has often resulted in a misunderstanding of the approach adopted by the Court.

Evasion of the international law of state responsibility? The ECtHR’s jurisprudence on positive and preventive obligations under Article 3

ABSTRACT While it is evident that the ECtHR’s main task is applying the ECHR, it is debatable whether the Court has adequate regard to general international law when considering questions left open by the ECHR. We contribute to this debate from a normative perspective. We discuss the criticism that the Court unduly evades the ARSIWA by applying an expansive positive obligations doctrine. We submit that the Court’s propensity to focus on preventive obligations is justified in substance, since it is difficult to imagine how human rights could be effectively protected without such positive obligations in a world where state, third state and private actors mingle. In this sense, the Court’s jurisprudence makes valuable contributions to the adaptation of the international legal system to changing societies. Criticism should focus less on the Court’s inclination toward positive obligations than on its pertinent methodology, which is at times less than convincing.

Where General International Law meets International Humanitarian Law: Attribution of Conduct and the Classification of Armed Conflicts

Case law of the International Court of Justice and international criminal tribunals reveals different judicial attitudes toward the relationship among State responsibility law, international humanitarian law (IHL) and the classification of armed conflicts. The legal precedents on this topic have been called 'the most cited example of the fragmentation of international law'. This contribution examines this conflict, or fragmentation, in order to shed light on the question whether IHL, or its interpretation and application, has had any influence on the general international law of State responsibility. With arguments specifically derived from the nature of international humanitarian law and from the structural design of State responsibility law, the article demonstrates that international armed conflicts involve two States that are responsible for the acts of their forces through which they act. Having in mind this symbiotic relationship between IHL and State responsibility for purposes of the classification of conflict, the case law on this matter, which is often cited as an example of fragmentation, can to some extent be reconciled, as long as one recognizes that attribution rules have a certain influence on the scope and application of primary rules of IHL. The article concludes that IHL (and the interpretation thereof by international tribunals with subject-matter expertise) has exercised no influence on attribution rules as found in the general international law of State responsibility, apart from the recognition that primary rules of international law (such as IHL) may contain secondary leges speciales rules dealing with the attribution of conduct in times of armed conflict.

Suing Foreign States Before U.S. Courts: Non-Recognition of State Immunity as a Response to Internationally Wrongful Acts

The lawsuits that the survivors and families of the victims of the 9/11 terrorist attacks filed against Saudi Arabia and other foreign defendants have brought to the fore a controversial issue: whether the international law of state immunity can be infringed to ensure accountability for the most serious assaults on fundamental values of the international community. This paper focuses on this and other cases of denial of foreign state immunity before U.S. courts and purports to investigate whether the assertion of jurisdiction in these instances can be considered a justified response to prior internationally wrongful acts. The first part of the paper examines a number of U.S. judgments denying state immunity pursuant to certain exceptions under the Foreign Sovereign Immunities Act: the Anti-Terrorism and Effective Death Penalty Act, the ‘international taking’ exception, the territorial tort exception, implied waiver, and the Justice Against Sponsors of Terrorism Act. This analysis concludes that the assertion of jurisdiction in these cases cannot be considered lawful in the light of the existing rules of state immunity under international law. The paper highlights however that these cases are premised on the existence of prior wrongful acts on part of the state whose immunity is denied. The second part assesses whether these prima facie unlawful assertions of jurisdiction can be justified as countermeasures under the international law of state responsibility. By distinguishing according to the organs that participate in the adoption of these potential countermeasures, three categories are identified: executive, judicial, and mixed countermeasures. Following some considerations on the compatibility of the rules of state immunity with the countermeasure mechanism, the paper shows that neither the law of state immunity nor the law of state responsibility contain any limitation in this respect. Finally, this paper evaluates how domestic courts can comply with the procedural and substantive requirements for the adoption of lawful countermeasures in the form of non-recognition of sate immunity. It concludes with some reflection on the prospective legality of the Justice Against Sponsors of Terrorism Act (JASTA).

Local Liability

On February 4, 2016, the United States and eleven other countries signed the Trans Pacific Partnership (TPP) — the most far-reaching free trade agreement since the World Trade Organization’s founding in 1995. The TPP’s potential ratification promises to be one of the major fights during the last months of the Obama Presidency. Unlike most prior trade agreements, the TPP’s purported benefits do not come primarily from reductions in tariffs paid on goods at the border. Instead, they flow from assumptions that so-called non-tariff barriers — such as discrimination against foreign investors or service providers — will fall significantly under TPP. Yet to date unnoticed among the TPP’s 30 chapters, schedules, and annexes are provisions that exempt state, provincial, and local measures from compliance with many of the agreement’s nondiscrimination rules. Under the TPP, subnational governments such as California or Ontario — governments with substantial regulatory authority over regional economies much larger than many national economies — may indefinitely continue existing discriminatory policies against foreign investors or foreign service providers. These exemptions represent the multilateralization of a trend underway for a number of years in U.S. treaty practice: efforts to eliminate the federal government’s liability for subnational action that the federal government often cannot control and of which it is frequently unaware. Indeed, 41% of the claims brought under the investor-state dispute settlement (ISDS) provisions of the 1994 North American Free Trade Agreement (NAFTA) have challenged subnational government action. These exemptions also reflect a growing pushback against ISDS. Contrary to U.S. treaty practice and ISDS’s critics, this Article argues that foreign investors or aggrieved trading partners should be able to make their claims directly against subnational governments such as California, rather than only against national governments like the United States. I make the case by presenting and analyzing international liability rules for local action. Governments use three kinds of local liability rules: 1) immunity, under which neither the subnational nor national governments are answerable under international law for the actions of a subnational government; 2) vicarious liability, under which nations are liable for the actions of their subnational units even if they do not control them as a matter of domestic law; and 3) direct liability, under which a claimant’s case is brought directly against the offending subnational government. Vicarious liability is the default rule under the international law of state responsibility. However, immunity — the rule under an increasing number of economic treaties, including TPP’s investment and services chapters — is on the rise. Direct liability is rare, but exists in certain investment agreements and applies to the European Union. The choice among these liability rules is the most important front in efforts to reconcile a robust federalism with the increasing importance of local governments to international affairs — an ongoing battle in the United States, the European Union, and other federal nations. Direct liability best achieves the twin goals of fostering local governance and international cooperation for three reasons. First, direct liability would force subnational governments to internalize the costs of their actions, thereby deterring violations. Under vicarious liability, the costs of violations are born by the national government, and under immunity they are born by the claimant who is left with no recourse. Second, a move to direct liability would have beneficial distributional consequences, ensuring that powerful federal nations do not force liberalization in developing countries while protecting discriminatory practices within their own countries. Third, a move to direct liability recognizes the considerably more important role subnational governments play in international affairs today. From climate change and renewable energy to international trade, subnational governments are incredibly active in tackling matters of international concern. They should also bear responsibility for their actions.

To What Extent Is the Law of State Responsibility Regarding Attribution Adequate?

This paper examines the adequacy of the doctrine of attribution in the international law of state responsibility. This examination encompasses a discussion and analysis of the International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts and its Articles 8, 9, 10 and 11. Furthermore this examination will be done in the light of the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Case Concerning the Military and Paramilitary Activities In and Against Nicaragua, Prosecutor v. Dusko Tadic (Appeal Judgement) and United States Diplomatic and Consular Staff in Tehran. Reference shall also be made to Behrami and Behrami v. France, Difference Relating to Immunity from Legal Process of a Special Repporteur, Estate of Jean-Baptiste Caire (France) v. United Mexican States and LaGrand (Provisional Measures) case.

Domestic Courts and the Content and Implementation of State Responsibility

AbstractThis article examines the role of domestic courts in addressing questions of international law concerning the content and implementation of state responsibility. Practice shows that domestic courts only play a limited role in developing the international law of state responsibility. This is partly due to the limited number of cases decided by domestic courts. Furthermore, the practice of domestic courts is quite disparate, reducing their value in generating consistent practice. There is also a general inclination of domestic courts to apply remedies under municipal rather than international law, which reduces their significance as agents of international law. It is only in exceptional cases that domestic courts may contribute to clarifying controversial norms and support the further development of international law. Domestic courts may furthermore take on the task of fine-tuning international norms on state responsibility. Probably the most important role domestic courts may play in applying secondary rules of state responsibility is that of strengthening the effectiveness of the international legal system and its individual rules.