- Responsibility of states — Wrongful acts — Countermeasures
Nevertheless, the issue is linked to important theoretical problems which became apparent during the ILC’s work on State responsibility. The complexity lies in identifying the wrongful acts which are susceptible to cause injury to a plurality of States, in the regulation of the invocation of the responsibility which arises and its content, as well as concerns regarding the adoption of countermeasures.
1 Wrongful acts giving rise to a plurality of injured States
It must immediately be remarked that we are dealing with a plurality of injured States that is caused by the same wrongful act. This means that there is a ‘conduct consisting of an action or omission [that] constitutes a breach of an international obligation of the State’.1 Thus the situation where the plurality of injured States is caused by linked instances of conduct that consist of the commission of a succession or plurality of wrongful acts that are more or less indissociable or linked can immediately be dismissed as irrelevant; this References(p. 950) was the case, for example, in the Rainbow Warrior case:2 several States—New Zealand, the United Kingdom, the Netherlands, and Switzerland—addressed France as injured States, but every one of them because of a different breach of an obligation.3 A situation where there are a plurality of injured States as a result of a multiplicity of conduct (even if they are identical, simultaneous or repeated) which constitute breaches of a plurality of bilateral obligations (even if they are identical) of the acting State towards any of the injured States must also be distinguished. In both these situations, the plurality of injured States arises from the commission of a plurality of internationally wrongful acts, each one causing injury to a State. By contrast, we are concerned with a single internationally wrongful act which causes injury to more than one State. Thus, it is the unique character of the internationally wrongful act (and thus also of the breached obligation) that makes the existence of a plurality of injured States special. To determine the categories of injured States which may arise, it is first necessary to analyse the objective element of the internationally wrongful act susceptible to cause injury to a plurality of States.
(a) Nature and scope of the obligation breached
As far as the breached obligation is concerned, it is sometimes difficult to distinguish whether the relevant obligation is owed to a plurality of States or whether it consists of a bundle of identical bilateral obligations in the framework of multilateral relations. It must also be noted that obligations which are owed to a State individually can derive from a general norm of international law or from a multilateral treaty. The obligations of States in the framework of diplomatic relations are an apt example. According to the ILC, ‘[s]uch cases are to be contrasted with situations where performance of the obligation is owed generally to the parties to the treaty at the same time and is not differentiated or individualized’.4 Thus it is not the source of the obligation which determines its character (whether individual or not) but the character (individual or multiple) of the beneficiary States to which the obligation is owed. In the words of the ILC ‘[i]t will be a matter for the interpretation and application of the primary rule to determine into which of the categories an obligation comes’.5
Article 42 distinguishes between obligations owed to a State individually and obligations owed to ‘a group of States … or the international community as a whole’. In the latter case we are dealing with collective (or rather multilateral) obligations, which the ILC defined as ‘obligations that apply between more than two States and whose performance in the given case is not owed to one State individually, but to a group of States or even the international community as a whole’.6 It seems thus that situations concerning a plurality of injured States can only arise from the breach of collective obligations. Despite the difficulty of devising a categorization, the following can be classed as obligations of this type:
First, there are obligations erga omnes partes, where all parties have a common interest in their fulfilment. This category comprises ‘integral’ obligations, or obligations which operate in an all-or-nothing fashion, the breach of which ‘threatens the treaty structure as a whole’.7 They are inserted in ‘[t]reaties … requiring complete collective restraint if they References(p. 951) are to work’, such as non-proliferation or disarmament treaties.8 The ILC Commentary to article 42 described these obligations as ‘interdependent’,9 a term which distinguishes them from certain obligations that are sometimes called integral, such as those relating to human rights law or environmental law.10
Second, there are obligations owed to the international community as a whole (erga omnes). For present purposes, it suffices to note that the notion emphasizes ‘the universality of the obligation and the persons or entities to whom it is owed, specifically all States and other legal entities which are members of that community’.11
(b) Identification of the injured States
Wherever obligations are owed to a group of States or the international community as a whole, all the States which hold a corresponding right will not necessarily have the status of an injured State. According to article 42, mere membership of that group or of the international community (depending on the case) is not sufficient. In these cases, a State is only entitled to invoke, as an injured State, the responsibility of another State if the breach specially affects that State or if it is of such a character as radically to change the position of all the States to which the obligation is owed with respect to the further performance of the obligation.12 The position taken in the Articles is more restrictive as to the concept of injured State than that adopted on first reading. Draft article 40 as adopted on first reading also treated as injured all those other States linked to a regime of protection of human rights or protection of collective interests of the parties, or all other States in case of an international crime. In ARSIWA the ILC separated the notion of an injured State from that of a State with a legal interest in achieving compliance with the obligation in question.13 The latter is dealt with in article 48.14
In accordance with the notion of injured State adopted by the ILC, plurality of injured States can thus arise from one of the following three situations:
(a) the breach of a collective obligation specially affecting two or more States;
(b) the radical change of the position of all States to which the obligation is owed with respect to the further performance of the obligation (that is to say the breach of an interdependent obligation); or
For this reason a plurality of injured States does not necessarily signify identity or homogeneity as far as the nature or the intensity of the injury is concerned. Only the scenario identified in (b) (violation of an interdependent obligation) implies by definition the existence of a plurality of States injured in an identical way.
But the position of States which have a right to invoke responsibility without being an injured State also ensues from the breach of collective obligations.15 In practice, it is not exceptional for the injured State(s) to coexist with other States which have the right to References(p. 952) invoke responsibility for breach of a collective obligation. Nevertheless, the existence of a plurality of interested States does not presuppose or imply the existence of a plurality of injured States. One can therefore encounter a situation where there is a plurality of interested States, but only one injured State or no injured State. The ILC itself recognized that the distinction has no significance vis-à-vis some effects of the invocation of responsibility, noting: ‘it may not be necessary to decide into which category they fall, provided it is clear that they fall into one or the other’.16
2 Invocation and content of responsibility in case of a plurality of injured States
The existence of a plurality of injured States does not imply a qualitatively different situation from that of a single injured State so far as the content of the responsibility is concerned. In fact, according to article 33(1) ARSIWA, where a wrongful act is committed, the obligations of the responsible State (that is, those obligations which form the content of responsibility) ‘may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach’. In principle, the determination of the existence of a plurality of injured States is related to the definition of their position as beneficiaries of the new obligations owed by the responsible State. Logically, injured States have a right to invoke responsibility, and therefore to require the fulfilment of these obligations.
According to some authors, there are obligations which tend to create, in the case of a breach, a situation of solidarity between the States to which the obligations are owed. This would be the case in respect of interdependent obligations: the invocation of responsibility, even if only realized by one of the injured States, would have an inter omnes partes effect and would remain essentially integral, since these obligations can only be fulfilled with regard to all parties, and not only with respect to the claiming State.17 In these cases the solidarity of the injured States is presupposed. But is it always guaranteed? It is rather possible that there is a divergence among them vis-à-vis the existence of a wrongful act and the obligations which flow from that act for the responsible State. The inclusion of obligatory mechanisms in a régime in order to classify the acts and to establish consequences eliminates the disadvantages of a diversity of interests by objectivizing the invocation of responsibility. But these special or autonomous regimes are the exception, not the rule. Furthermore, the obligatory recourse to a form of dispute settlement is itself not always guaranteed.
In this respect, article 46 limits itself to recognizing for every injured State the possibility of separately invoking the responsibility of the State which has committed the internationally wrongful act. Even though the collective invocation of responsibility is not necessarily ruled out because of this provision, it is not compulsory in any situation involving a plurality of injured States. What is more, the ILC seemed to admit the References(p. 953) possibility that one of the States belonging to the group can invoke responsibility even in the case of interdependent obligations. In such a case, it is to be expected that it would invoke the obligations in favour of its own interests. However, in contrast to the provisions in the Vienna Convention on the Law of Treaties which relate to unilateral suspension of a treaty,18 ARSIWA contains no provisions to diminish the disadvantages to other states which might arise from an excess of unilateralism in the invocation of responsibility. Pursuant to article 43 ARSIWA, the injured State which invokes the responsibility of the responsible State needs only give notice to that State.
The negative effects of this potential fragmentation (and even divergence) of the relations of responsibility go beyond the supposed violation of integral (interdependent) obligations. Article 48 also recognizes the right of ‘any State other than an injured State’ to invoke responsibility in the case of breaches of collective obligations. In these circumstances, the risk of divergence between the members of the group is even higher.
As for a potential claim for reparation, a plurality of injured States may bring with it some specific problems due to a lack of agreement between the States. First, ‘excessive reparation’: according to the ILC, where there is a claim for compensation ‘evidently each State will be limited to the damage actually suffered’.19 This rule would evidently also be applicable in the case where not all the injured States are in a position to demand compensation (for example, in the case of waiver20). Furthermore, if all injured States make a claim, it is clear that the responsible State is not obliged to compensate for more than the amount that results from the financial evaluation of the entirety of the harm caused.21
Second, there is the problem of incompatible claims (eg claims for both compensation and restitution). A flexible approach to the rule of the priority of restitution seems to be required in this case. Thus, the ILC recalled that in Forests of Central Rhodope22 ‘the arbitrator declined to award restitution, inter alia, on the ground that not all the persons or entities interested in restitution had claimed’.23
The practice in the area of claims presented by several injured States for the same wrongful act is certainly not overwhelming and it is not possible to discern the existence of a specific customary regime. The adoption of a specific regulation also seems to have been ruled out in the work of the Commission.24 In any case, the ILC recommends that injured States to coordinate their claims in order to avoid the problems that can arise from a plurality of claims for the same wrongful act.25
3 Plurality of injured States and the taking of countermeasures
The plurality of injured States does not necessarily imply the adoption of collective countermeasures. State practice has certainly demonstrated that measures may be taken by a group of States in a more or less concerted manner against States which are apparently responsible References(p. 954) for breaches of collective obligations. But it must first be noted that not all those which participate in measures of collective reaction may be classified as injured States. Sometimes none of the participating States will be injured States in the sense of the Articles. This has especially been the case where the existence of an international crime has been invoked. In its new approach, the ILC decided to limit the term ‘countermeasures’ to those measures adopted by injured States. Article 54 nevertheless preserves the (uncertain) right of any State entitled to invoke the responsibility of another State ‘to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligations breached’. Therefore, it would be possible that collective measures could be taken without the participation of any of the injured States.
Beyond that, the general regime which applies to countermeasures extends to collective countermeasures or countermeasures adopted by a group of injured States. But it must not be forgotten that, just as with the invocation of responsibility, in the context of countermeasures, action by a plurality of States carries the risk of being disproportionate. The ILC has recognized that ‘proportionality must be assessed taking into account not only the purely “quantitative” element of the injury suffered, but also “qualitative” factors such as the importance of the interest protected by the rule infringed and the seriousness of the breach’.26 Without doubt, this will be important where there is a breach of collective obligations. Furthermore, the purely instrumental character of countermeasures27 would seem to preclude an excessive reaction which would amount to punitive action. Proportionality continues to constitute a limit ‘even on measures which may be justified under article 49’.28 According to the Commission, the requirement of proportionality with regard to the harm suffered ‘has a function partly independent of the question whether the countermeasure was necessary to achieve the result of ensuring compliance’.29 Bearing this in mind, it can clearly be seen that the concept of proportionality ought to be applied in the context of countermeasures, whether unilateral or coordinated, where there is a plurality of injured States.
- C Annacker, ‘The Legal Régime of Erga Omnes Obligations in International Law’ (1994) 46 Austrian J Publ Intl Law 131
- C Annacker, ‘Part Two of the ILC’s Draft Articles on State Responsibility’ (1994) 37 GYBIL 206
- DJ Bederman, ‘Article 40(2)(e) & (f ) of the ILC Draft Articles on State Responsibility: Standing of Injured States under Customary International Law and Multilateral Treaties’ (1998) 92 ASIL Proc 291
- J Crawford, ‘The Standing of States: A critique of Article 40 of the ILC’s Draft Articles on State Responsibility’, in M Andenas (ed), Liber Amicorum for Lord Slynn of Hadley (The Hague, Kluwer, 2000) Vol II, 23
- C Dominicé, ‘The International Responsibility of States for Breach of Multilateral Obligations’ (1999) 10 EJIL 353
- P-M Dupuy, ‘Observations sur la pratique récente des “sanctions” de l’illicite’ (1983) 87 RGDIP 505
- P-M Dupuy, ‘Action publique et crime international de l’Etat: À propos de l’article 19 du projet de la Commission du droit international sur la responsabilité des Etats’ (1979) 25 AFDI 539
- References(p. 955) DN Hutchinson, ‘Solidarity and Breaches of Multilateral Treaties’ (1988) 59 BYIL 151
- G Perrin, ‘La détermination de l’État lésé Les régimes dissociables et les régimes indissociables’, Theory of International Law at the Threshold of the 21st Century (Essays in Honour of Krzyzstof Skubiszewski) (The Hague, Kluwer, 1996), 243
- P Reuter, ‘Solidarité et divisibilité des engagements conventionnels’, in Y Dinstein (ed), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht, Kluwer, 1989), 623
- J Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the “Injured State” and its Legal Status’ (1988) 35 NILR 273
- B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-IV) 250 Recueil des cours 219B
- B Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Y Dinstein (ed), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht, Kluwer, 1989), 821(p. 956)
2 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215.
14 See Chapter 64.