Articles on responsibility of states for internationally wrongful acts (Crawford)

Historical background and devt of codification

o Regarded as major area of interest in first half of 20 th
1930: unsuccessful conference in The Hague
1948: United Nations GA: International Law Commission
State responsibility selected amongst 14 topics to deal with
o 1956: Amador of Cuba: ILC on state responsibility for injuries to aliens, property;
gen aspects of responsibility; but ILC did not discuss reports in detail
o 1962: Ago: ILC should shift focus towards definition of general rules governing
international responsibility of State
Also: ILC adopted 35 articles constituting foundation of articles on origin and
fundamental features of State responsibility (ARSIWA part 1)
o 1980-6: Riphagen: provisional adoption by ILC of elaborate definition of injured state
o 1988-96: Arangio-Ruiz: ILC adopted first comprehensive text of draft Articles;
reparation, countermeasures, consequences of international crimes, dispute
settlement
o 1997: Crawford second reading of draft
o 1998-2000: 59 articles adopted. Commentaries completed
o 2001: GA took note of articles; annexed to resolution; commended to governments
without prejudice to future adoption as treaty text
o 2004: again commended to governments
o 2007: commended to governments; to further examine question of convention on
responsibility of States for internationally wrongful acts, other appropriate action on
basis of Articles
o 2010: similar as above. But some pressed for diplomatic conference to consider
articles
Structure of articles
o Four parts
Part one: internationally wrongful act of the state 1-27
Five chapters: gen principles, attribution of conduct to state, breach of
international obligation, responsibility of state in connection with act of
another state; circumstances precluding wrongfulness
Part two: content of international responsibility of a state
Three chapters: gen principles; reparation for injuries; serious breaches
of obligations under peremptory norms of general international law
Part three: implementation of the international responsibility of a state
Two chapters: invocation of responsibility of a state; countermeasures
Part four: general provisions of the text
Basic principles
o State responsibility as secondary rules
Articles provide an overarching, general framework which sets the
consequences of a breach of an applicable primary obligation
Otherwise, articles would be too ambitious and trying to do much telling
states what kind of obligations they have
o Foundations of state responsibility
Article one: every international wrongful act of a state entails the
international responsibility of that state
Not limited to responsibility of states towards other states

Otherwise, significant curtailment of scope of obligations

covered by articles
No distinction bet treaty, non-treaty obligations; ex contractu, ex
delicto
Article 2:
elements for existence of internationally wrongful act
o Conduct attributable to state
o Conduct inconsistent with international obligations
No requirement concerning fault or wrongful intent on part of state to
ascertain existence of internationally wrongful act
o Does not imply that fault has no place in law of state
responsibility
o Reflects consideration that different primary rules on
international responsibility may impose different standards of
fault (due diligence to strict liability)
o Fault is not necessarily required in every case for international
responsibility to arise; determination left to primary rules on
State obligations
Chapter two, Part one: scope of attribution of conduct to a state
Subjective, functional points of vew
Chapter three:
breach of international obligation tempus regit actum principle
extension in time of breach
breach consisting of composite act
obligations of conduct, result and preventuion, continuing, composite,
complex wrongful acts
attribution of responsibility to state in relation to possible connections
between state and internationally wrongful acts of another state
aid or assistance
direction, control
coercion
rationale for above: state not directly committing wrong nonetheless held
responsible if it has knowledge of circumstances of the act and if the act
would be, if committed by state, an internationally wrongful act
chapter five: circumstances precluding wrongfulness
Consequences of state responsibility
o Part two, two issues
Specifies the most significant consequences of state responsibility for an
internationally wrongful act (obligations of cessation, non-repetition,
reparation)
Particular category of wrongful acts: international crimes now srs breaches of
obligations under peremptory norms of gen intl law
o Act does not affect continued duty by responsible state to perform obligation thus
breached
o If breach continuing, responsible sate under obligation to cease conduct
o Offer appropriate assurances, guarantees of non-repetition
o Responsible state has duty to make full reparation for injury caused
Nature and forms of reparation
o

Art 31: state responsible for an internationally wrongful act is under the obligation
to make full reparation for the injury caused by it
Addresses ff concerns
To preserve conceptual separateness of notions of injury and damage
Useful to retain notion of moral damage
Causation resolved by caused by
o Injury any damage, material or moral, caused by the act
But articles do not provide for punitive damages || state practice
o Forms
Restitution
Primary form except if materially impossible or where it would involve
burden out of proportion to benefit derived from selecting it
Compensation
If restitution unavailable or insufficient
Payable for financially assessable loss
Satisfaction
If restitution, compensation unavailable
Serious breaches of obligations under peremptory norms of general international law
o ILC debates and Barcelona Traction: appropriateness of providing for separate
category of wrongful acts that would be so serious as to be defined international
crimes, offending intl community as a whole and not just the injured state
o crime definition: internationally wrongful act which results from breach by State of
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
o Still, idea of holding state responsible for crime remains highly divisive
But need for stronger protection of certain significant legal interests of
international community as a whole found expression in Part Two, Ch III, arts
40-41
o Peremptory norms based on illustrious codified antecedent in two VCLOTs
Qualification as peremptory left to state practice and judicial bodies
o 40-41 acknowledge certain egregious breaches allow for response by all states
Entails duty not to recognize as lawful such breaches; prohibition to render
aid or assistance in maintaining illegit situations created by wrong; duty to
cooperate to bring through lawful means such situation to an end
Invocation of responsibility
o Part three deals with
o Which states are entitled to invoke responsibility
Take into account diff obligations of states in sphere of IR (bilateral, multi,
obligations intended to benefit intl community)
Not co-extensive with circumstance of being victim of breach of obligation
Injured state not the only one entitled to invoke responsibility
But injured states retain priority in terms of response
Injured state, art 42: specially affected by breach, of such a character
as radically to change the position of all other states to which the
obligation is owed with respect to the further performance of the
obligation;
art 48: non-injured invoking responsibility in collective interest
o

states belonging to group holding collective interestfor the

protection of which the obligation was established
o every state seeking to invoke responsibility for a berach of an
obligation owed to the international community as a whole
o does not restrict scope to erga omnes by limiting beneficiaries to
states alone
Intl community includes other entities
Art 44: possibility to invoke responsibility conditioned on compliance with
applicable rules concerning nationality of claims and exhaustion of local
remedies
Art 45: when right to invoke responsibility can be lost
Waiver as to breach or some or all of consequences
State considered by reason of conduct to have validly acquiesced in
lapse of claim
o What are the modalities through which this can be done
o Claims?
o Each state is responsible for its own conduct in respect of its own international
obligations and each injured state is entitled to claim against any resposnbile state
in respect of the losses flowing from the act of that state
Subj to caveats
47, par 2: state may not recover by way of compensation more than
the damage it has suffered (no double recovery)
Questions of contribution when more than one is responsible in respect
of same injury
Countermeasures
o Part III, Ch 2
o Temporary character, limited to temporary non-performance of ceratin international
obligations towards the responsible state (art 49); should cease as soon as
responsible state complied with obligations under part 2 (art 53)
o Limitationquantitative, qualitative
Art 51: must be commensurate with injury suffered, taking into acct the
gravity of the internationally wrongful act and the rts in question
Art 50: certain fundamental substantive obligations may not be affected by
countermeasures
o Suspension: Art 52 (3) (b): before competent court, tribunal with power to make
binding decisions
o Procedural conditions || Art 52
Obligation to cal upon responsible state to fulfil obligations (cessation,
reparation)
Responsible state to be notified of any decision to take countermeasures
Chance to negotiate
o Art 52 also provides for such urgent countermeasures as are necessary to preserve
its rights
o Countermeasures by states other than injured = collective countermeasures
Limited and embryonic, but not renounced
Art 54: countermeasures chapter does not prejudice rt of non-injured state
entitled to invoke responsibility to take lawful measures against responsible
state
Part IV
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Boundaries and scope of articles in relation to other provisions of IL

Articles do not affect law applicable to responsibility of IOs or person acting on
behalf of state
Whenever obj of articles regulated by lex specialis, latter applies or any applicable
rule of IL on matter in questions not regulated by articles
Primacy of charter of UN in matter of responsibility