- Responsibility of states — Reparations — Recognition of states — BITs (Bilateral Investment Treaties) — Vienna Convention on the Law of Treaties
Chapter 1 of Part Three of the Articles on State Responsibility (ARSIWA) is entitled ‘Invocation of State Responsibility’. While the title suggests that the Chapter is concerned with purely procedural matters, it also addresses the preliminary question of which State has rights or interests corresponding to the obligations of the responsible State. This issue is not addressed elsewhere in ARSIWA, but is resolved implicitly in this Chapter, in relation to matters concerning implementation. In the context of ARSIWA, to say that a State may invoke responsibility means both that that State has the right to expect the responsible State to behave in a certain way and that the requisite conditions for making a claim regarding this conduct are met.
The Commentary on ARSIWA indicates that invocation of responsibility should be understood as ‘taking measures of a relatively formal character’, and gives the examples of the presentation of a ‘claim against another State’, or the commencement of ‘proceedings before an international court or tribunal’.1 In fact, there is nothing to prevent a State making a simple approach to indicate, for example, its interest that an affair or incident be resolved in a certain way. In terms of the existence of a legal right or interest, however, what is important is not so much the form which the claim takes as the fact that the State involved asserts its right to expect the responsible State to conduct itself in a certain way. The subsequent choice of procedural means for making this assertion may be linked to the existence of certain conditions.
1 The nature of the legal position corresponding to the obligations of the responsible State
If an international obligation binds a State, usually there will also be a certain legal relationship in respect of another legal subject. The latter will have not only remedies, but also a subjective right or a legal interest. These terms do not, however, define in a precise way the actual content of the legal position.
(p. 942) While ARSIWA accept that subjects other than States may be injured by the breach of an international obligation existing towards them, article 33 specifies that Part Two of ARSIWA addresses only those obligations which the responsible State has in respect of other States. This is true also where the breach at issue injures non-State subjects of international law.
In the draft text adopted by the ILC on first reading, the legal entitlements corresponding to the obligations of the responsible State were uniformly defined as ‘rights’.2 As a result, all the States which were in a responsibility relationship with the responsible State were identified as injured States. Special Rapporteur Crawford proposed a distinction between two types of responsibility relationships, namely, those involving rights, and those involving legal interests.3 This terminology was not accepted by the ILC, which preferred, finally, not to define different types of responsibility relationships. The ILC did, however, accept the idea of a distinction corresponding to the type of obligation of the responsible State. This led the ILC to split into two categories (defined, respectively, in article 42 and article 48) the States which, as a result of the breach of an obligation existing towards them, may invoke international responsibility and therefore, implicitly, benefit from a responsibility relationship. The term ‘injured State’ only appears in article 42; there is no alternative term provided for those States which are referred to in article 48.
The States injured in the sense of article 42 certainly benefit from a set of legal entitlements which is more complete than that applicable in respect of those States falling under article 48. The legal position of a State which comes within the first category includes, significantly, the possibility of claiming reparation for its own benefit, whereas States in the second category may only claim reparation in the interest of the beneficiary (that is, the State, international organization, or individual which was injured). Moreover, according to ARSIWA it is only those States injured in the sense of article 42 which may have recourse to countermeasures in order to induce the responsible State to comply with its obligations. As regards the States which are considered in article 48, the controversial question of their resort to countermeasures was left open by article 54.4
2 The identification of States injured in the sense of article 42 ARSIWA
Normally the State which is injured in the sense of article 42 sustains material damage. There are, however, cases where States other than the injured State sustain damage, either directly or indirectly. Equally there are cases where a State is injured without sustaining any material damage: for example, where another State breaches its obligation to adopt legislative measures provided for by a bilateral treaty. Hence one cannot identify the injured State purely on the basis of damage caused by the breach of an international obligation.
Where an international obligation only exists in the relations between two States, the range of legal entitlements which correspond to the obligations of the responsible State is certainly References(p. 943) complete. Clearly, in the case of breach of that type of obligation, the States to whom such an obligation is owed fall into the category of injured States mentioned in article 42.
One can in this connection speak of a bilateral obligation, in the sense that the obligation exists only in the relations between two States. However, this obligation is not necessarily bilateral in the sense that it exists for both States, as a treaty may establish differentiated obligations for States parties. In any event, in practice it is usually the obligation of a single State which will be at issue.
An obligation can be clearly identified as bilateral in the first sense where it derives from a rule which only binds two States. Even in the case of a rule which binds several States, the obligation of one State may exist in respect of only one other State. There would be thus an ‘obligation breached’ which is owed to a State ‘individually’, as it is phrased in sub-paragraph (a) of article 42.
As with the rules of general international law, multilateral treaties may impose obligations which, in a given circumstance, States are required to fulfil in respect of a large number of States. However, this is not necessarily true of every obligation imposed by a multilateral treaty. A contrary opinion which is sometimes voiced on this point tends to generalize a position which only holds true for certain treaties. For many multilateral treaties, applying the rules provided for in the treaty to a particular case will be to the benefit of only a single State, or a limited group of States parties. Even where the text of the multilateral treaty does not expressly so indicate, a reasonable interpretation of the treaty provisions can lead to the conclusion that the obligations provided for by the treaty exist, in practice, as a series of bilateral obligations.
One can take as an example a multilateral extradition treaty. Usually this type of treaty contains rules which appear to be of general application. Nevertheless, in regard to a specifi c request for extradition, these rules only apply to the relations between the requesting State and the requested State. If the latter does not fulfil its obligations, only the requesting State may claim to be injured. At the very most, the other States parties to the extradition treaty could harbour a legitimate concern as to the application of the treaty in future relations between the requested State and themselves.
A second example could be the immunities of diplomatic or consular agents, whether these immunities derive from general international law (this example is briefly touched upon by the ILC Commentary5) or from the Vienna Conventions on Diplomatic Relations (1961) and Consular Relations (1963). It is true that in the case of United States Diplomatic and Consular Staff in Tehran the International Court drew ‘the attention of the entire international community … to the irreparable harm that may be caused by events of the kind now before the Court’.6 The Court did not, however, indicate that in its opinion States other than the claimant State could be considered as injured, or had another basis for invoking the responsibility of the respondent State. Moreover, according to general international law and the conventions referred to above, it is clear that if a State wishes to renounce the immunity of one of its diplomatic or consular agents, it can freely waive this immunity.
A third example can be drawn from the LaGrand case.7 Where a State does not inform a foreign national who has been detained of his/her right to contact the consulate of his/her State of nationality, the former State breaches an international obligation deriving References(p. 944) from article 36 of the 1963 Vienna Convention on Consular Relations. In the LaGrand case, the Court noted that the right of the individual, and the right of the State of which he was a national, had been violated. However the Court clearly did not envisage that any other States parties to the Vienna Convention possessed rights in this situation, or indeed that such States were placed in any specific legal relationship with the responsible State. In fact, a legal interest of these States in the performance of the obligation would only exist in those cases where one of their own nationals had been detained.8
In the three examples just provided, it is only (respectively) the State requesting extradition, the national State of the diplomatic or consular agent, or the national State of the detained person—in short, the injured State—which is entitled to request the performance of the international obligation, and demand reparation in case of breach. Irrespective of whether the obligation at issue derives from a multilateral treaty or a customary rule, the obligation breached is bilateral in the sense specified, and the legal relationship created as a result of the breach is equally bilateral.
It may be difficult to establish whether a multilateral treaty creates obligations which, in the wording of article 42 ARSIWA, are owed to one or more States ‘individually’: that is, to establish whether the obligations at issue are bilateral obligations. The majority of treaties do not explicitly indicate which State or States are, in given circumstances, ‘individually’ affected by a breach of an obligation. Still, an important indicator of the bilateral character of the obligation at issue can be found in the criteria relating to the scope of application of that treaty. These criteria will help to identify which interests the treaty specifically seeks to protect.
For example, where a multilateral treaty dealing with investments only protects the property belonging to nationals of States parties, one can draw the conclusion that the obligations created by this treaty with regard to a certain investment only exist in respect of the investor’s State of nationality. Thus it would only be that State which should be considered injured by a breach of the relevant obligation.
An analogous conclusion can be reached in respect of the customary rules on the treatment of foreign nationals. These are general rules which, in specific circumstances, give rise only to bilateral obligations.
One could also look at the breach of various customary rules on the law of the sea, as well as the corresponding rules articulated in the 1982 Montego Bay Convention. Taking, for example, the rule which prohibits, in principle, States from seizing ships of foreign States while these ships are on the high seas, does this represent a rule which, in relation to the specifi c question of a State wishing to seize a particular ship, places an obligation on that State in respect of all other States? Or, is it preferable to see here a bilateral obligation in respect of the flag State? In the latter case, if a State seizes the ship of another State in circumstances which do not justify this conduct, this would alarm other States, but only the flag State would be considered injured by the breach, and have a legitimate basis for demanding reparation.
Except for those cases where an obligation at issue has a bilateral character, an obligation will be owed to all the States which are beneficiaries of the conventional or customary rule in question. This does not necessarily mean that, in case of a breach, all these States will References(p. 945) have the same legal entitlements, nor that they will have legal entitlements which correspond to that of the State to whom a bilateral obligation is owed. In article 42 ARSIWA only two situations, both of which are relatively rare, are equated with the case of an obligation owed to a State ‘individually’.
The first situation concerns those obligations which Special Rapporteur Crawford referred to as ‘integral’,9 and which the ILC Commentary describes, in the context of treaty-based obligations, as ‘interdependent’.10 With regard to this category of obligations, as stated in the Commentary, ‘performance of the obligation by the responsible State is a necessary condition of its performance by all the other States’.11 Professor Crawford subsequently commented that the breach of this kind of treaty-based obligation threatens the entire structure of the treaty.12
At issue here is a category of rules which are not always easily distinguishable from those rules which, while aimed at protecting a collective interest, do not, in case of a breach of the relevant obligation, give all States other than the responsible State the legal entitlements which are due to an injured State.13
Where a State breaches an integral obligation, the legal position of the other States is not as such equated by the ARSIWA with the legal position of the State to whom a bilateral obligation is owed. A situation of equivalence in legal positions only occurs where the breach ‘is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation’.14
To illustrate this type of scenario, it is useful to reconsider an example given by the ILC Commentary: namely, the obligation of States parties to the Antarctic Treaty of 1959 to refrain from claiming sovereignty over a part of Antarctica on the basis of an act undertaken while the Treaty is in force.15 This obligation binds States parties, in any specific circumstances, in respect of all other States parties to that treaty, all of whom have an interest in maintaining the status quo in Antarctica. It is clear that all these States would be affected by a breach of this obligation.
Logically, the nature of the legal position of those States to whom the integral obligation is owed, and hence the status of injured State, should not depend on the significance of the breach. It is difficult to see how the interests of States parties to the treaty would be affected in a qualitatively different manner in the case of a significant breach. The underlying premise is that the treaty also prohibits trivial breaches. Article 42 ARSIWA provides, however, that there will be injured States only where a breach is such ‘as radically to change the position of all the other States to which the obligation is owed’.16 It can certainly be expected that a significant breach will provoke the type of reaction which a negligible breach would not cause, yet this would depend on the approach which the States decide to take in the prevailing circumstances, and not on the diversity of their legal positions. Nevertheless, the ILC preferred to limit the cases where breaches of integral obligations are equated with the breach of bilateral obligations. Where the breach is not significant, however, the States affected will still have legal entitlements, but only so far as provided by article 48 ARSIWA.
References(p. 946) The formulation of article 42(b)(ii) ARSIWA is partly modelled on article 60(2)(c) of the 1969 Vienna Convention on the Law of Treaties. The same type of treaty is envisaged in both texts. The commentary on the draft which became article 60 of the Vienna Convention17 gives the example of a breach of an obligation imposed under a treaty on disarmament (as indeed does the Commentary to ARSIWA).18 However, while article 42 ARSIWA addresses the invocation of responsibility, the text of the Vienna Convention concerns the possibility for a State party to a treaty to suspend the operation of a treaty where ‘a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty’.19
At issue in both texts is the radical modification of a situation. However the envisaged modification does not have the same character in respect of both texts. For the ARSIWA, at issue is a modification which affects the future performance of the specific obligation in question. The Vienna Convention, on the other hand, concerns a modification which affects the totality of obligations deriving from the treaty. This difference in focus can be explained by the fact that the obligation at issue for the ARSIWA can be customary in nature; the notion of interdependent obligations can be difficult to expound in respect of customary obligations. Hence for the ARSIWA it is only the specific obligation breached which is taken into account. A second difference between the two texts is that the suspension of the operation of a treaty also applies vis-à-vis States parties which have not breached the obligation, while the question of responsibility does not arise in respect of these States. At the same time, the fact that the power to suspend the treaty is exerted in respect of all parties can explain why the Vienna Convention requires that the material breach create a radical modification in respect of future performance not only of the specific obligation breached, but rather of all obligations deriving from that treaty.
The differences between the text of ARSIWA and article 60(2)(c) of the Vienna Convention do not create inconsistencies between distinct areas of international law. Still, the partial reproduction of the text from the Vienna Convention in the ARSIWA seems the result of expediency, rather than logical coherence. The solution arrived at allows the use of an accepted formulation, to express what is in fact a relatively new concept.
Article 42(b)(i) sets out the second situation which is equated in ARSIWA to the case of a State injured by the breach of a bilateral obligation: namely, the breach of an obligation which exists vis-à-vis all States, or all States parties to a treaty, where this breach ‘specially’ affects one State in particular. The resulting legal entitlements of the specially affected State are more extensive than those of the other States affected by the breach.
The formulation in ARSIWA recalls article 60(2)(b) of the Vienna Convention on the Law of Treaties which addresses, again, the suspension of the operation of a treaty which has been the object of a material breach. The provision in the Vienna Convention is, however, of wider application as it also covers the breach of a bilateral obligation. In the case of the breach of a bilateral obligation, it is clear that the State in respect of whom the obligation is owed is ‘specially’ affected. It is less straightforward to establish when a State may suspend a treaty, or be considered injured, as a result of the breach of an obligation which is not bilateral. At issue are situations wherein one State is bound by an obligation in References(p. 947) respect of all other States (or, for a treaty-based obligation, all other parties to the treaty), but where one or more of these States are particularly affected.
An example given in the relevant section of the ARSIWA Commentary is that of pollution of the high seas by one State, in breach of the customary rule or the obligation deriving from article 194 of the 1982 United Nations Convention on the Law of the Sea, where this pollution has a particular impact on the territorial sea of a certain State.20 In this case the breach exists in respect of all other States, but among these the coastal State which is particularly affected by the pollution is to be considered as ‘specially’ affected.
Another example would be that of an act of aggression of one State against another State. The latter is to be considered specially affected, but the breach of the obligation not to use force also exists vis-à-vis other States, who are all equally affected, albeit in a less particular manner.
It seems logical that the mere fact that the obligation at issue is not of a purely bilateral character does not deprive the specially affected State of legal entitlements which it would have if the obligation breached was in fact bilateral. In addition, the fact that one State is specially affected does not alter the legal entitlements of the other States in respect of whom the multilateral obligation is owed. Considering again the first example given above, it would be somewhat illogical to suggest that States other than the (specially affected) coastal State could no longer invoke the responsibility of the polluting State, once the pollution had reached the territorial sea of the specially affected State. As regards the second example, the act of aggression would not give rise merely to a bilateral responsibility relationship between the aggressor State and the State on the receiving end of that act. It is clear that in such cases, there exists both the (more extensive) legal entitlements of the specially affected State, and the lesser legal entitlements of the other States in respect of whom the breached obligation existed. Simply, the latter States will not fall within the category of injured States in the sense of article 42 ARSIWA, but they are entitled to invoke responsibility pursuant to article 48.
- C Annacker, ‘The Legal Regime of Erga Omnes Obligations in International Law’ (1994) 46 Austrian Journal of Public International Law 131
- J Crawford, ‘The Standing of States: A Critique of Article 40 of the I.L.C.’s Draft Articles on State Responsibility’, in M Andenas (ed), Judicial Review in International Perspective. Liber Amicorum for Lord Slynn of Hadley (The Hague, Kluwer, 2000), 23
- S Forlati, Diritto dei trattati e responsabilità internazionale (Milan, Giuffrè, 2005)
- DN Hutchinson, ‘Solidarity and Breaches of Multilateral Treaties’ (1988) 59 BYIL 151
- N Kawasaki, ‘The “Injured State” in the International Law of State Responsibility’ (2000) Hitotsubashi Journal of Law & Politics 17
- G Perrin, ‘La détermination de l’État lésé. Les régimes dissociables et les régimes indissociables’, in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century. Essays in Honour of Krzysztof Skubiszewski (The Hague, Kluwer, 1996), 243
- K Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the “Injured State” and its Legal Status’ (1988) 35 NILR 273
- L-A Sicilianos, ‘Classification des obligations et dimension multilatérale de la responsabilité internationale’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des États (Paris, Pedone, 2002), 57References(p. 948)
4 See L-A Sicilianos, Chapter 80.
13 Criticism of the lack of clarity regarding this distinction was made during the debates of the Sixth Committee in 2001 (particularly by the representative of Japan, C Yamdda, A/C.6/56/SR.12, para 6).