Articles on the Responsibility of States for Internationally Wrongful Acts (2002).

The final text of the Draft Articles was adopted by the ILC in August 2001, bringing to completion one of the Commission's longest running and most controversial studies. On 12 December 2001, the United Nations General Assembly adopted resolution 56/83, which "commended [the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action."[8]

Crawford notes that the rules are "rigorously general in character,"[9] encompassing all types of international obligations.

Internationally wrongful acts

According to the Draft Articles, an internationally wrongful act must:

• be attributable to the state under international law; and

• constitute a breach of an international obligation of the state.[10]

International Crimes

Earlier drafts of the Articles on State Responsibility contained Article 19, which provided for "state crimes".[11] Article 19 included the following provisions:

2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime.

3. Subject to Paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from:

(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.

4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.[11]

Article 19 was deleted from the final Draft Articles.[12]

Attribution

Before a state can be held responsible for any action, it is necessary to prove a causal connection between the injury and an official act or omission attributable to the state alleged to be in breach of its obligations. This has become an increasingly significant contemporary issue, as non-state actors such as Al Qaeda, multinational corporations, and non-governmental organisations play greater international roles, and as governments privatise some traditional functions.

The state is responsible for all actions of its officials and organs, even if the organ or official is formally independent[13] and even if the organ or official is acting ultra vires.[14] Persons or entities not classified as organs of the State may still be imputable, when they are otherwise empowered to exercise elements of governmental authority, and act in that capacity in the particular instance. Persons or entities not performing public functions may equally be imputable, if they in fact acted under the direction or control of the State.[15] Where there is a breakdown of normal governmental authority and control, such as in so-called "failed states", the actions of those acting as the "government" in a de facto sense will be acts of the state.[16] The acts of an "insurrectional or other movement that becomes the new government of an existing state or succeeds in establishing a new state" can also be attributed to the state.[17] This is also the case where a state acknowledges and adopts the conduct of private persons as its own.[18]

Despite their apparent concreteness, the standards stated in some rules involve important ambiguities, and their application will often require significant fact-finding and judgment. Most rules state responsibility involving private acts already arise under primary rules. For example, environmental and human rights agreements require states to prevent abuses by private parties.

Defences

If the general elements to establish state responsibility are established, the question arises as to whether any defences may be available to the respondent state.

These include force majeure (Article 23), distress (Article 24), state of necessity (Article 25) and counter measures (Articles 49-52), self-defence (article 21) and consent (article 20).

Consequences of breach

The breach of an international obligation entails two types of legal consequences. Firstly, it creates new obligations for the breaching state, principally, duties of cessation and non-repetition (Article 30), and a duty to make full reparation (Article 31). Article 33(1) characterises these secondary obligations as being owed to other states or to the international community as a whole. Articles indirectly acknowledges in a savings clause also that states may owe secondary obligations to non-state actors such as individuals or international organisations.

Second, the articles create new rights for injured states, principally, the right to invoke responsibility (Articles 42 and 48) and a limited right to take countermeasures (Articles 49-53). These rights, however, are heavily state-centred and do not deal with how state responsibility is to be implemented if the holder of the right is an individual or an organisation. The principal element of progressive development in this area is Article 48, which provides that certain violations of international obligations can affect the international community as a whole such that state responsibility can be invoked by states on behalf of the larger community. This provision picks up on the ICJ's celebrated suggestion in Barcelona Traction that some obligations are owed erga omnes, toward the international community as a whole.[19]

Reparations

If illegal actions are continuing, the state has a duty to cease.[20] The state also has duties to make reparation, which could involve restitution, compensation, or satisfaction. Remedies will be dependent on the particular forum, such as the United Nations, International Court of Justice, World Trade Organisation, International Tribunal for the Law of the Sea, International Criminal Court, and on the purpose of reparation.[21]

Date: 2015-12-11; view: 1348