Part III The Sources of International Responsibility, Ch.20 Attribution of Conduct to Multiple States and the Implication of a State in the Act of Another State
Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett
- Responsibility of states — Wrongful acts
(p. 281) Chapter 20 Attribution of Conduct to Multiple States and the Implication of a State in the Act of Another State
The situations or circumstances in which one or more States may be held responsible for an internationally wrongful act are many and diverse.1 As suggested by the title of this Chapter, it is convenient to distinguish between circumstances where the internationally wrongful act is attributable to more than one State and circumstances where one State is implicated in the unlawful act of another State.
The first category, where two or more States are jointly responsible, comprises two situations which are completely different. On the one hand, when States act together in an unlawful manner towards a third State, they are co-authors of an internationally wrongful act. This would be the case where two States used force together against a third State. On the other hand, there is a plurality of responsible States when one State incurs responsibility for an internationally wrongful act and by virtue of this, a second State also incurs (p. 282) responsibility, but for the breach of a distinct norm, one that is different to that breached by the first State. This is particularly the case in respect of obligations of prevention (for instance, where there is a failure to exercise due diligence).
This Chapter does not deal with questions concerning the possible joint responsibility of States members of an international organization for the acts of that organization.2
1 Plurality of States jointly responsible
(a) States which are co-authors of an internationally wrongful act
(i) Joint action
If two or more States together take joint action to the detriment of a third State, they are co-authors of any internationally wrongful act derived from their joint action. A joint military operation, for instance, if contrary to the prohibition on the use of force, constitutes an internationally wrongful act implicating a plurality of authors. This was the argument of Yugoslavia in the claim filed before the International Court of Justice against 10 member States of NATO,3 although the claims also raised the question of the possible responsibility of NATO. The case of Certain Phosphate Lands in Nauru may also be mentioned.4 The responsibility invoked in that case was that of the three States entrusted with the administration of Nauru before its accession to independence. Also, within the framework of a multilateral treaty (for example, a convention concerning the regime of an international watercourse and the use of installations built on it), if two or more States agree to cause injury to a third State, those two States may be considered as co-authors of the internationally wrongful acts resulting from their acts.
Even if there are not numerous examples of joint responsibility in the cases, it is clear that joint responsibility does arise in practice.5 It is necessary in this respect to avoid terminological analogies with expressions used in national legal systems.6 The international legal regime of responsibility establishes that in the case of a plurality of responsible States, the injured State can invoke the responsibility of each of them, provided that the injured State does not obtain compensation greater than the injury sustained.7 It is thus important for the injured State to know whether there are in fact multiple responsible States.
The question of attribution thus acquires particular importance. There must be a joint conduct, carried out by a single action. In other words, it is not necessary that each of the States perform the internationally wrongful act in its entirety. It is sufficient that each State’s contribution to the joint action be attributable to it according to the usual rules of attribution and that such contribution constitute an element of the unlawful act (this References(p. 283) would be the case where a State provides only certain elements of the logistics of a military operation).
(ii) Action through a joint organ
Two or more States may find it useful to constitute a joint organ for specific activities or to undertake certain action, without creating an international organization (for example, this may be used for research laboratories or the establishment of telecommunications). An arbitral tribunal, such as the one constituted by Iran and the United States, may also be characterized as a common organ rather than an international organization.8
Such a joint organ, like each of the States that have constituted it, may act in violation of the international obligations of these States: for example, it may engage in breaches of sovereignty, pollution, and standards of international labour law. The conduct of the joint organ is attributable to each of the States that have created it, for it acts on their behalf. This also results from the principle established in ARSIWA article 5. Since there is a plurality of responsible States, the rule established in article 47 ARSIWA is applicable to the benefit of the injured State.
Joint responsibility may result from a relationship of mandate, in the sense that if the agent commits an unlawful act in the execution of its mandate, it will certainly incur the responsibility for its act, but its principal will also incur responsibility for it. Thus in Certain Phosphate Lands in Nauru, if the Court had had to determine the responsibility for the alleged unlawful conduct, the fact that Australia had acted alone, as an agent of the administering powers, would not have relieved the United Kingdom and New Zealand of their responsibility.9
Apart from this case, there do not seem to be any other situations which would lead to a plurality of co-author States. However, it must be emphasized that the implication of a State in the unlawful act of another may become a case of joint responsibility, depending on the circumstances. For instance, a State which provides military assistance to another State may become a co-author in an internationally wrongful act if the character of the assistance provided amounts to true participation in the act.
(b) Plurality of responsible States for different breaches
The internationally wrongful act of a State may in certain circumstances trigger the international responsibility of another State, based on an autonomous or distinct legal obligation. The Corfu Channel case is a typical example.10 Since it was not possible to demonstrate that Albania had itself laid the mines that caused injury to the British vessels, Albania could not be held responsible for this unlawful act. But the Court held Albania responsible for the damage—all of the damage—because it had failed to inform the British vessels of the presence of mines, when it was under the obligation to provide this information. In this case, it may be observed that Albania was not the author of the initial unlawful act, but of another References(p. 284) breach of international law, which was only revealed by the initial unlawful act. It may also be observed that this responsibility entails an obligation of full reparation of the damage suffered by the injured State.
Analogous situations can be found, primarily in relation to obligations of prevention. Without a doubt, such obligations are more often invoked in cases concerning acts of individuals which violate the obligations of the territorial State.11 But it is equally possible that the unlawful act be the act of a State. For instance, an assault against a diplomatic mission or one of its members, of a foreign State carried out in the territory of a third State, can generate the responsibility of the author State and that of the territorial State, if the latter has failed to comply with its obligation of prevention. Two States thus have responsibility for the same injury, but the second State has breached an international norm different from that which gave rise to the responsibility of the first State. In these circumstances, there are two distinct attributions of international responsibility, which arise pursuant to the general rules on attribution.
The plurality of responsibilities envisaged here entails that each of the responsible States is under an obligation to provide full reparation for the injury, provided that the injured State does not obtain compensation greater than the injury sustained. One or more of the responsible States may have recourse to the other responsible States to ensure equitable distribution of the burden. Article 47 ARSIWA is also applicable in this case, even though the States concerned are not co-authors. It is worth emphasizing here that this provision corresponds to practice and may be considered as the codification of customary law. Indeed, it has already been noted that in the Corfu Channel case, Albania was required to pay full reparation for the damage caused by the British vessels, even when it was not responsible for the laying of the mines.12 One can imagine that if all States concerned could be pursued through judicial processes, the principal burden of the reparation ought to fall on the author of the principal breach.
2 The implication of a State in the act of another State
According to the nature of the relationship, factual or legal, between a third person and the author of an unlawful act, that third person may also incur responsibility for the unlawful act. In internal legal systems and in the field of criminal law, this is known as complicity.13
International legal scholarship has addressed the question of the implication of a State in the unlawful act of another State,14 on the basis of several different notions, including that of complicity.15 It is evident from these works that there must be a distinction made References(p. 285) between situations where the implicated State provides aid to the State which is the author of the unlawful act and situations where the implicated State exercises some power of direction, or even coercion, over the author State.
The work of the ILC adopts this distinction. Special Rapporteur Ago suggested that the Commission should take into account of two categories of conceptually distinct cases: on the one hand, the case of the participation of a State in the internationally wrongful act of another State; and on the other hand, the case where a State acting in breach of its international obligations is, legally or factually, in a relationship of dependence with respect to the other State. It must thus be determined whether the latter State incurs indirect responsibility.16 The result of the work of this period, the first part of the draft articles adopted in 1980, contained a Chapter IV, entitled ‘Implication of a State in the internationally wrongful Act of another State’,17 which include two provisions: one relating to participation18 and the other to indirect responsibility.19
Following the reports presented by Special Rapporteur Crawford and the debate in the Commission, a revised version of Chapter IV was adopted. The title of the chapter was modified by the Commission to ‘Responsibility of a State for the acts of another State’.20 Chapter IV now comprises three articles (articles 16, 17 and 18), for it was considered that former article 28, which envisaged at the same time both the ‘direction and control’ and ‘coercion’ exercised by another State, should be subdivided into two separate provisions. The most important modifications of the new Chapter IV in relation to the draft Articles adopted on first reading concern substantive aspects, which will be addressed below.
Article 16 concerns the question of ‘participation’ or ‘complicity’ of a State which assists another State in the commission of an internationally wrongful act. The provisions of weapons or aerial bases to a State in order to aid that State to undertake an unlawful military operation are examples of such assistance. Article 16 establishes the principle of the responsibility of a State which provides aid or assistance, but it subordinates the application of the article to the existence of two cumulative conditions, examined below, after making some comments in respect of article 16.
It can be noted first that the participation envisaged by article 16 goes beyond mere incitement to commission of a wrongful act. It is not contested that such incitement does not constitute a wrongful act in international law.21 But the participation envisaged in article 16 remains on the side of a more marked action, such as coercion, which generates international responsibility.
Second, it can be noted that the aid or assistance referred to constitutes an internationally wrongful act distinct to that committed by the State beneficiary of the aid. The aid or assistance must be clearly connected to the unlawful act,22 in the sense that it must References(p. 286) constitute a contribution to the commission of the act, but it constitutes in itself the breach of an autonomous rule.23
Third, while at the time the ILC Articles were adopted, article 16 may have been an exercise in progressive development of the law,24 in its treatment of complicity in the Bosnia Genocide case in 2007 the ICJ referred to article 16 as ‘reflecting a customary rule’.25 In this context it is relevant that article 16 as adopted established conditions and limits noticeably stricter than those of article 27 of the first draft.
Fourth, paragraph (a) of article 16 underlines the importance of the element of intention on the part of the State which provides aid or assistance. The assisting State must have clear knowledge and intention to collaborate in the commission of an internationally wrongful act of another State. This requirement was not controversial in the ILC.26 In fact, aid or assistance are legitimate, for it would not be possible to establish a form of objective responsibility for the State which provides goods, transport, services, to another State without knowledge that latter would use this aid to commit an unlawful act. The requirement of intent was recognized in Bosnia Genocide, when the ICJ confirmed that to establish that a person is an accomplice, it must be shown at a minimum, that the person was aware of the ‘specific intent’ of the principal perpetrator. The Court considered that there was little doubt that the atrocities in Srebrenica were committed with the resources possessed as a result of the ‘general policy of aid and assistance’ provided by the respondent State, but held that it was not established that the respondent State was aware that the ‘perpetrators had the specific intent characterizing genocide.’27 The standard required by article 16—as applied by the ICJ—is one of specific knowledge of the alleged accomplice, crucially of an internationally wrongful act with a high degree of particularity.28
Fifth, the other condition required by article 16 is that the State which provides aid or assistance must be bound by the same obligation breached by the State author of the internationally wrongful act. In other words, if the assisting State acted like the assisted State, it would itself be the author of an internationally wrongful act. This is an important requirement, which marks a fundamental departure from the initial draft: former article 27 specified that the aid or assistance for the commission of an internationally wrongful act constituted in itself an internationally wrongful act, ‘even if, taken alone, such aid or assistance would not constitute the breach of an international obligation’.29 This would have been going too far, for in this case the aid provided to a State which breaches a bilateral obligation owed by it to a third State would also be unlawful for the assisting State.30
Although article 16 is not merely codificatory of existing international law, the assertion that the provision of aid or assistance for the commission of an internationally wrongful References(p. 287) act might itself engage the responsibility of the aiding or assisting state finds some basis in international law and practice. In this respect, it can be noted that under certain rules specific forms of assistance are rendered unlawful. For example, article 3(f ) of the definition of aggression31 establishes that it is unlawful for a State to place its territory at the disposal of another State for the perpetration of an act of aggression against a third State. It is not necessary to establish a general principle concerning the prohibition of aid or assistance as a primary rule. Nevertheless, such a general principle might exist in several circumstances. Obligations erga omnes may be mentioned as one such circumstance. The situation of a State which intentionally lends support to another State to systematically violate human rights would be covered by article 16(b). It has also been suggested that the scope of application of article 16 should be limited to obligations erga omnes.32 But this suggestion was rejected: other obligations under general international law fall within the scope of article 16 as do obligations arising under multilateral treaties, since if the State injured by the breach of the treaty, the author of the breach and the State who lends assistance are all parties to the treaty, the assisting State is also bound by the conventional rule.
When a State is in a relationship of dependency with another State, the question arises whether an unlawful act of the dependent State may entail the responsibility of the dominant State: more precisely, its ‘indirect responsibility’, to use Ago’s terminology. Without a doubt such situations of dependency are nowadays less frequent than in the past, when it was usual to have recourse to institutions like the protectorate. Nevertheless, it is possible to find such situations established, particularly by virtue of conventional links, or in the case of military occupation.
It must be clarified that pure representation is not considered here. Between the representative and the represented (eg the case of Liechtenstein, which is represented by Switzerland) there is no relationship of domination. Similarly, the case of entities composing federal States is not considered, for those entities are not considered States, and moreover they are dealt with by article 4 ARSIWA.
In situations of dependence, the justification for establishing the responsibility of a State for the acts of another State is that the dependent State is but an instrument in the hands of the dominant State. This entails that the conditions of the transfer of responsibility are relatively strict, all the more so since international practice is very underdeveloped.33 Article 17 must be understood with this perspective in mind.
Article 17 envisages the case where the commission of the internationally wrongful act by a dependent State is the consequence of a directive that the dominant State has given to that dependent State, and the dominant State has exercised control over the dependent State’s conduct. The engagement of the dominant State’s responsibility requires the existence of a dependency relationship and the actual power of the dominant State to direct the acts of the dependent State. Indeed it is necessary that the direction and control exercised by the dominant State played a decisive role in the commission of the internationally References(p. 288) wrongful act. This rigorous requirement seems justified on the basis that a sovereign State must in principle be responsible for its own acts. It is only in exceptional circumstances that a transfer of responsibility may be allowed. Military occupation is a good example: if the acts of the occupying power directly engage its responsibility, it is its indirect responsibility which is engaged for the acts of the occupied State undertaken pursuant to its direction and control. If only the existence of power was required (and not its effective exercise), it would be easy to blame the dominant State for failing to stop the dependent State from committing an unlawful act, which would in turn incite the dominant State to further interference.
Paragraph (a) of article 17 also requires that the dominant State act having knowledge of the circumstances of the internationally unlawful act. This condition may raise serious evidentiary difficulties. But the rule requiring that the breached obligation be binding on both States (paragraph b) may give rise to a presumption of knowledge.
It is precisely article 17(b) which requires that the act in question be such that it would be an internationally unlawful act even if committed by the dominant State itself. This supplementary condition has the effect that, among others, responsibility for the breach by the dependent State of a bilateral obligation with a third State cannot be transferred to the dominant State.
When the conditions established in article 17 are fulfilled, it is the dominant State which incurs responsibility for the internationally wrongful act. This raises the question of the distribution of responsibility: is the dominant State the sole responsible State or is this responsibility shared with the dependent State? The response is clear: it is only the dominant State who is responsible,34 for it is either that the State is responsible for the act of another carried out under its direction or control, or the dependent State maintains a certain degree of freedom, in which case it is responsible for its own conduct. In the latter case, the dominant State may have incited the conduct, but mere incitement is not unlawful.
Another case of indirect responsibility is that which results from the coercion exercised by a State over another State for the purpose of leading the latter State to breach an obligation owed to a third State. Although scant, practice supports the logical idea that the State who acts under pressure of another State no longer exercises freedom of decision. It is the State exerting coercion that is responsible towards the third State.35
Article 18(1) of ARSIWA expresses this principle, establishing that a State which coerces another to commit an act is internationally responsible for that act if the act would, but for the coercion, be an internationally wrongful act of the coerced State. This wording was chosen because the State which acts—the coerced State—benefits from a circumstance precluding wrongfulness: force majeure.36 For the coerced State, coercion may in fact amount to force majeure.
It must be emphasized that for the application of article 18, it is irrelevant if the coercion is lawful or unlawful. Of course, frequently coercion will be unlawful if it results, for instance, from the use of force or unlawful intervention, but there are certain forms of economic coercion which are lawful. When unlawful, coercion establishes a relationship References(p. 289) of responsibility between the State which coerces and the State which is coerced, but this is independent of the application of article 18, which rather addresses the relationship between the coercing State and the injured third State.
Article 18(b) requires also that the State which exerts coercion act ‘with knowledge of the circumstances of the act’. The coercing State must know that it is coercing a State to breach one of its obligations. It can be noted that it is not required that the coercing State be bound by the obligation breached by the coerced State.37 This is justified by the rigorous conception of coercion which underlies article 18, and also by the consideration that if this were not so the injured State could find itself unable to invoke the coerced State’s responsibility, which benefits from a circumstance precluding wrongfulness, and also unable to invoke the coercing State’s responsibility, since it is not bound by the obligation breached.
Thus, in the case of coercion, and if the conditions are met, the sole responsible State is the State which has exerted coercion.
It will have been observed that there is an important conceptual distinction between the two categories of situations discussed. In the first situation, that of joint responsibility, there exists without doubt a noticeable distinction between the cases of co-author States of the same act and the case of States which are responsible for the same injury, but for separate unlawful acts. But in both cases, the secondary rules on attribution are applicable. Special provisions to determine the effects of joint responsibility are not therefore necessary: article 47 ARSIWA stipulates that where there is a plurality of responsible States, the responsibility of each State may be invoked in relation to the internationally wrongful act.
In the second situation, where a State is implicated in the internationally wrongful act of another State, from a legal standpoint the situation is completely different. In fact, in the absence of specific rules and pursuant to the general rules on attribution, it is the State which committed the act which incurs responsibility for that act. In order for the State which aids or assists in the commission of the act to incur autonomous responsibility, or which exercises direction and control or exerts coercion, it is necessary to include a specific rule. These provisions constitute primary rules of international law, and their inclusion in ARSIWA is therefore exceptional. However, their inclusion is justified because they punish acts of the implicated State which are reprehensible.
- B Graefrath, ‘Complicity in the Law of International Responsibility’ (1996) 29 RBDI 370
- JE Noyes and BD Smith, ‘State Responsibility and the Principle of Joint and Several Liability’ (1988) 13 Yale JIL 225
- ML Padelletti, Pluralità di Stati nel fatto illecito internazionale (Milan, Giuffrè, 1990)
- J Quigley, ‘Complicity in International Law: A New Direction in the Law of State Responsibility’ (1986) 57 BYIL 77References(p. 290)
2 See P Klein, Chapter 22.
3 See Legality of Use of Force, Request for the Indication of Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 124 (Yugoslavia v Belgium); ibid, p 259 (Yugoslavia v Canada); ibid, p 363 (Yugoslavia v France); ibid, p 422 (Yugoslavia v Germany); ibid, p 481 (Yugoslavia v Italy); ibid, p 542 (Yugoslavia v the Netherlands); ibid, p 656 (Yugoslavia v Portugal); ibid, p 761 (Yugoslavia v Spain); ibid, p 826 (Yugoslavia v United Kingdom); ibid, p 916 (Yugoslavia v United States).
13 See also the comments of the Court in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ, Judgment, 26 February 2007, para 167.
20 See the proposal by the Special Rapporteur: J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 212; and see Report of the ILC, 51st Session, ILC Yearbook 1999, Vol II(2), 69 (para 247).