DOCSLIB.ORG

State Responsibility

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
State Responsibility STATE RESPONSIBILITY [Agenda item 2] DOCUMENT A/CN.4/490 and Add. 1–7* First report on State responsibility, by Mr. James Crawford, Special Rapporteur [Original: English and French] [24 April, 1, 5, 11 and 26 May, 22 and 24 July, 12 August 1998] CONTENTS Page Multilateral instruments cited in the present report ............................................................................................... 3 Works cited in the present report .......................................................................................................................... 4 Paragraphs INTRODUCTION ............................................................................................................................... 1–42 5 A. Outline of the work of the Commission on State responsibility ........................................ 1–6 5 B. Scope of the present report ................................................................................................ 7 5 C. Comments received so far on the draft articles.................................................................. 8–9 5 D. Some general issues ........................................................................................................... 10–42 6 1. Distinction between “primary” and “secondary” rules of State responsibility ............. 12–18 6 2. Issues excluded or insufficiently developed ................................................................. 19–26 7 3. Relationship between the draft articles and other rules of international law ................ 27 8 4. Inclusion of detailed provisions on countermeasures and dispute settlement .............. 28–38 8 5. Eventual form of the draft articles ................................................................................ 39–42 9 Chapter I. THE DISTINCTION BETWEEN “CRIMINAL” AND “DELICTUAL” RESPONSIBILITY ................................ 43–95 9 Introduction ............................................................................................................ 43–45 9 A. The treatment of State crimes in the draft articles ............................................................. 46–51 10 B. Comments of Governments on State crimes ...................................................................... 52–54 11 C. Existing international law on the criminal responsibility of States ................................... 55–59 14 D. Relations between the international criminal responsibility of States and certain cognate concepts ............................................................................................................................. 60–69 16 1. Individual criminal responsibility under international law ........................................... 61 16 2. Peremptory norms of international law (jus cogens) .................................................... 62 17 3. Obligations erga omnes ................................................................................................ 63–69 17 E. Possible approaches to international crimes of States........................................................ 70–95 18 1. Two preliminary issues .................................................................................................. 72–75 19 2. Consideration of the alternatives .................................................................................. 76–93 19 (a) The status quo......................................................................................................... 76–80 19 (b ) Substituting for “international crime” the notion of “exceptionally serious wrongful act”.......................................................................................................... 81–82 21 *Incorporating documents A/CN.4/490/Add.2/Corr.1, A/CN.4/490/Add.4/Corr.1 and A/CN.4/490/Add.7/Corr.1. 1 2 Documents of the fiftieth session Chapter Paragraphs Page (c) Criminalizing State responsibility ........................................................................... 83–86 21 (d) Excluding the possibility of State crimes ................................................................ 87–90 22 (e) Decriminalizing State responsibility ....................................................................... 91–93 23 3. Recommendation .......................................................................................................... 94–95 23 II. REVIEW OF DRAFT ARTICLES IN PART ONE (OTHER THAN ARTICLE 19) ........................................... 96–284 24 A. Preliminary issues .............................................................................................................. 96–103 24 1. Questions of terminology .............................................................................................. 97–99 24 2. General and savings clauses .......................................................................................... 100–103 26 B. Part one, chapter I. General principles (arts. 1–4) ............................................................. 104–139 26 1. Article 1 (Responsibility of a State for its internationally wrongful acts) .................... 105–126 27 (a) General observations ............................................................................................... 105–107 27 (b) A general requirement of fault or damage? ............................................................. 108–118 27 (c) Relationship between internationally wrongful conduct and injury to other States or persons ................................................................................................................ 119–125 30 (d) Recommendation .................................................................................................... 126 31 2. Article 2 (Possibility that every State may be held to have committed an internationally wrongful act) .................................................................................................................. 127–130 31 ( a) Observations............................................................................................................ 127–129 31 (b) Recommendation .................................................................................................... 130 31 3. Article 3 (Elements of an internationally wrongful act of a State) ............................... 131–135 31 ( a) Observations............................................................................................................ 131–134 31 (b) Recommendation .................................................................................................... 135 32 4. Article 4 (Characterization of an act of a State as internationally wrongful) ............... 136–139 32 ( a) Observations............................................................................................................ 136–138 32 (b) Recommendation .................................................................................................... 139 32 C. Part one, chapter II. The “act of the State” under international law (arts. 5–15)................ 140–284 32 1. Introduction ................................................................................................................... 140–155 32 (a) Questions of terminology ........................................................................................ 146–147 33 (b) Comments of Governments on chapter II as a whole ............................................. 148–153 33 (c) Basic principles underlying the notion of attribution .............................................. 154–155 33 2. Review of specific articles ............................................................................................ 156–283 34 ( a) Article 5 (Attribution to the State of the conduct of its organs) .............................. 156–165 34 ( b) Article 6 (Irrelevance of the position of the organ in the organization of the State 166–179 36 ( c) Article 7 (Attribution to the State of the conduct of other entities empowered to exercise elements of the government authority) ...................................................... 180–191 37 ( d) Article 8 (Attribution to the State of the conduct of persons acting in fact on behalf of the State) .................................................................................................. 192–218 39 i i(i) Persons acting in fact on behalf of the State .................................................... 195–213 39 (ii) Agents of necessity: the exercise of State powers in the absence of the State 214–218 43 (e ) Article 9 (Attribution to the State of the conduct of organs placed at its disposal by another State or by an international organization) ............................................. 219–231 44 ( f) Article 10 (Attribution to the State of the conduct of organs acting outside their competence or contrary to instructions concerning their activity).......................... 232–240 46 ( g) Article 11 (Conduct of persons not acting on behalf of the State) .......................... 241–245 48 ( h) Article 12 (Conduct of organs of another State) ..................................................... 246–252 49 ( i) Article 13 (Conduct of organs of an international organization) ............................. 253–259 50 ( j) Article 14 (Conduct of organs of an insurrectional movement)/Article 15 (Attribution to the State of the act of an insurrectional movement which becomes the new Government of a State or which results in the formation of a new State) .... 260–277 51 (k) Subsequent adoption of conduct by
Load more

Recommended publications
  • Guiding Principles on Shared Responsibility in International Law
    The European Journal of International Law Vol. 31 no. 1 © The Author(s), 2020. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved. For Permissions, please email: [email protected] Guiding Principles on Shared Responsibility in International Law André Nollkaemper,1, Jean d’Aspremont,2, Christiane Ahlborn,3 Berenice Boutin,4 Nataša Nedeski5 and Ilias Plakokefalos,6 with the collaboration of Dov Jacobs7 Abstract It is common in international practice that several states and/or international organizations contribute together to the indivisible injury of a third party. Examples thereof are aplenty in relation to climate change and other environmental disasters, joint military activities and cooperative actions aimed at stemming migration. Such situations are hardly captured by the existing rules of the law of international responsibility. In particular, the work of the International Law Commission, which is widely considered to provide authoritative guidance for legal questions of international responsibility, has little to offer. As a result, it is often very difficult, according to the existing rules of the law of international responsibility, to share re- sponsibility and apportion reparation between the states and/or international organizations that contribute together to the indivisible injury of a third party. The Guiding Principles on Shared Responsibility in International Law seek to provide guidance to judges, practitioners and researchers when confronted with legal questions of shared responsibility of states and international organizations for their contribution to an indivisible injury of third parties. The Guiding Principles identify the conditions of shared responsibility (including questions 1 Amsterdam Center for International Law, University of Amsterdam, The Netherlands.
    [Show full text]
  • Silence Is Consent Acquiescence and Estoppel in International Law
    J U R I D I C U M Silence is consent Acquiescence and Estoppel in International Law Nathalie Holvik VT 2018 RV102A Rättsvetenskaplig magisterkurs med examensarbete, 15 högskolepoäng Examinator: Joakim Nergelius Handledare: Märta Johansson LIST OF ABBREVIATIONS BYIL British Yearbook of International Law Ch Chapter Comm Commission CUP Cambridge University Press Ed Editor Edn Edition Eg For example ICJ International Court of Justice ICLQ International & Comparative Law Quarterly Intl International J Journal L Law No Number OSAIL Oxford Scholarly Authorities on International Law OUP Oxford University Press PCA Permanent Court of Arbitration PCIJ Permanent Court of International Justice Rev Review Rep Report Supp Supplement UK United Kingdom UN United Nations UNGA United Nations General Assembly UNTS United Nations Treaty Series US United States of America VCLT Vienna Convention on the law of treaties Vol Volume Ybk Yearbook TABLE OF CONTENTS I.! INTRODUCTION ............................................................................................................. 1! A.! Background .................................................................................................................... 1! B.! Purpose and questions .................................................................................................... 3! C.! Delimitations .................................................................................................................. 4! D.! Method and material ......................................................................................................
    [Show full text]
  • The International Court of Justice As a Working Court’
    The Australian Academy of Law’s Patron’s Address — ‘The International Court of Justice as a Working Court’ 5.30 pm, Monday 25 September 2017 Banco Court, Supreme Court of NSW Level 13, Law Courts Building Queen’s Square, Sydney The sixth annual Patron’s Address of the Australian Academy of Law will be delivered by His Excellency Judge James Crawford AC, SC, FBA, Judge of the International Court of Justice Professor Crawford was elected a Judge of the International Court of Justice (ICJ) in 2014, taking up his post in February 2015. He will speak about his experiences as a member of the Court with particular reference to such issues as the jurisdiction of the Court, features that distinguish the ICJ's jurisdiction from that of domestic courts, procedural characteristics of the Court and how its procedures differ from those of domestic courts, enforcement of the ICJ's orders, and the relationship of the Court's jurisprudence to the common law and civil law traditions. James Crawford AC, SC, FBA was born in Adelaide and studied law at Adelaide and Oxford Universities. He is a Judge of the International Court of Justice. From 1992 to 2015 he was Whewell Professor of International Law at the University of Cambridge; he also held chairs at Adelaide, Sydney and LaTrobe Universities. He was also a member of the Australian Law Reform Commission (1982-1990). He was responsible for the ILC’s work on the International Criminal Court (1994) and for the second reading of the ILC Articles on State Responsibility (2001). During his practicing career, he was involved as counsel, expert or arbitrator in some 100 cases before the International Court and other international tribunals.
    [Show full text]
  • Early Life and Career by Lesley Dingle1 and Daniel Bates2 Date: 3 May 2018
    A Conversation with Emeritus Professor Judge James Richard Crawford Part 1: Early Life and Career by Lesley Dingle1 and Daniel Bates2 Date: 3 May 2018 This is an interview with the twenty-seventh personality for the Eminent Scholars Archive. Judge James Richard Crawford is a judge of the International Court of Justice at the Peace Palace in The Hague, and is Emeritus Whewell Professor of International Law at the University of Cambridge. The interview was recorded in Judge Crawford’s office at The Hague. The audio version is available on this website. Questions in the interviews are sequentially numbered for use in a database of citations to personalities mentioned across the Eminent Scholars Archive. Interviewer: Lesley Dingle, her questions are in bold type. Judge Crawford’s answers are in normal type. Comments added by LD [in italics]. Footnotes added by LD. 1. Judge Crawford, it is a great privilege to interview you for the Eminent Scholars Archive here in the Peace Palace in The Hague after a remarkable career in international law. A great pleasure to have you here. 2. Thank you so much. During these interviews I hope that we will be able to throw light on some of your major achievements spanning nearly half a century of dedication to your chosen subject that began in Oxford in the early 70s. We might characterise your career as three intertwined trajectories: your United Nations work, which culminated as a Rapporteur for the International Law Commission and now as judge of the International Court of Justice; your professional practice, where you have been involved in at least 120 cases and arbitrations as counsel, judge and arbitrator; and finally, but not least, your outstanding academic achievements in which you held three professorships, most recently as the tenth incumbent of the Whewell Chair of International Law at Cambridge.
    [Show full text]
  • Ch 2. Reparations
    220 Chapter II REPARATION FOR INJURY Commentary Chapter II deals with the forms of reparation for injury, spelling out in further detail the general principle stated in article 31, and in particular seeking to establish more clearly the relations between the different forms of reparation, viz restitution, compensation and satisfaction, as well as the role of interest and the question of taking into account any con- tribution to the injury which may have been made by the victim 221 Article 34. Forms of reparation Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter. Commentary (1) Article 34 introduces chapter II by setting out the forms of reparation which separately or in combination will discharge the obligation to make full reparation for the injury caused by the internationally wrongful act Since the notion of “injury” and the necessary causal link between the wrongful act and the injury are defined in the statement of the general obligation to make full reparation in article 31,[692] 485 article 34 need do no more than refer to “[f]ull reparation for the injury caused” (2) In the Factory at Chorzów case, the injury was a material one and PCIJ dealt only with two forms of reparation, restitution and compensation [693] 486 In certain cases, satisfac- tion may be called for as an additional form of reparation Thus, full reparation may take the form of restitution, compensation
    [Show full text]
  • Invoking State Responsibility in the Twenty-First Century
    Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2002 Invoking State Responsibility in the Twenty-First Century Edith Brown Weiss Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/335 96 Am. J. Int'l L. 798-816 (2002) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the International Law Commons GEORGETOWN LAW Faculty Publications April 2010 Invoking State Responsibility in the Twenty-First Century 96 Am. J. Int’l L. 798-816 (2002) Edith Brown Weiss Professor of Law Georgetown University Law Center [email protected] This paper can be downloaded without charge from: Scholarly Commons: http://scholarship.law.georgetown.edu/facpub/335/ Posted with permission of the author INVOKING STATE RESPONSIBILIlY IN THE TwENlY-FIRST CENTURY By Edith Brown Weiss· At the beginning of the twenty-first century, the international community is globalizing, integrating, and fragmenting, all at the same time. States continue to be central, but many other actors have also become important: international organizations, nongovernmental organizations, corporations, ad hoc transnational groups both legitimate and illicit, and in­ dividuals. For the year 2000, the Yearbook ofInternational Organizations reports that there were 922 international intergovernmental organizations and 9988 international nongovernmen­ tal organizations.! If organizations associated with multilateral treaty agreements, bilateral government organizations, other international bodies (including religious and secular insti­ tutes), and internationally oriented national organizations are included, the number ofinter­ national organizations reaches nearly thirty thousand.2 Another twenty-four thousand are listed as inactive or unconfirmed.3 Corporations that produce globally are similarly numer­ ous.
    [Show full text]
  • Sir Ian Brownlie CBE QC Memorial Seminar
    Registration Form Seminar Venue: This seminar is free but subject to registration. Royal Society of Arts There are a limited number of places. We would 8 John Adam Street ask that modest numbers of people attend from Westminster each organisation. London WC2N 6EZ Tel: 020 7930 5115 Please return your completed photocopy of this form to: Alice Newton Blackstone Chambers Blackstone House Temple London EC4Y 9BW Tel: 020 7583 1770 Fax: 020 7822 7350 Email: [email protected] (Please photocopy and return a separate booking form for each delegate) Delegate registration details Title: First Name: Surname: Organisation & Position: Email: Tel: Address: Sir Ian Brownlie CBE QC Memorial Seminar Authorised signature (all bookings must be signed): Royal Society of the Arts Friday 19 November 2010 Contact details of person making the booking (if different from delegate details) Title: First Name: Surname: Organisation & Position: Email: Tel: Address: Design Eureka! www.eureka.co.uk www.eureka.co.uk Eureka! www.biicl.org Blackstone Chambers Blackstone House Temple London EC4Y 9BW www.blackstonechambers.com Tel: 020 7583 1770 Fax: 020 7822 7350 www.blackstonechambers.com Introduction Sir Ian Brownlie CBE QC The Members of Blackstone Chambers and the British Institute well documented, as evidenced by the recent issue of the 6th edition Sir Ian Brownlie CBE QC FBA (19 September 1932 – 3 January 2010) Libya v United Kingdom, Libya v United States, and Democratic of International and Comparative law are proud to present an of Brownlie’s Documents on Human Rights. was called to the Bar by Gray’s Inn in 1958 and was a tenant Republic of the Congo v Uganda.
    [Show full text]
  • State Responsibility and the Duty of the Shipmaster to Render Assistance at Sea
    Chapter 6 State Responsibility and the Duty of the Shipmaster to Render Assistance at Sea 6.1 Introduction This chapter examines the extent to which, if any, violations of international obligations committed by the shipmaster in rescue operations attract interna- tional State responsibility. The first part of the chapter reviews the doctrine of State responsibility. This is followed by an analysis of the principles governing the attribution of State responsibility, with a focus on the doctrine of due dili- gence as a legal mechanism applied to gauge State responsibility. The results of this analysis are applied to acts or omissions of the shipmaster in rescue operations. 6.2 Doctrine of State Responsibility under International Law unclos does not provide any specific rules on the issue of the shipmaster engaging State responsibility in rescue operations. It is therefore necessary to examine the rules of general international law, which are reflected in the ilc’s Articles on the Responsibility of States for Internationally Wrongful Acts.1 Although the arsiwa does not constitute a legally binding instru- ment, it is considered an authoritative statement on the law of international responsibility,2 as recognised in international judgments.3 Under the arsiwa , 1 ilc, ‘Articles on Responsibility of States for Internationally Wrongful Acts’, UN Doc.A/56/10, Ch iv.E.1. (arsiwa). 2 Berglind Halldórsdóttir Birkland, ‘Reining in Non-State Actors: State Responsibility and At- tribution in Cases of Genocide’ (2009) 84 NYULRev 1623, 1627; Fernando Lusa Bordin, ‘Reflec- tions of Customary Law: The Authority of Codification Conventions and ilc Draft Articles in International Law’ (2014) 63 iclq 535, 536, 538.
    [Show full text]
  • The International Law of State Responsibility: Revolution Or Evolution?
    Michigan Journal of International Law Volume 11 Issue 1 1989 The International Law of State Responsibility: Revolution or Evolution? Pierre-Marie Dupuy Universitè de Droit d'Economie et de Science Sociale de Paris Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Conflict of Laws Commons, International Law Commons, and the Public Law and Legal Theory Commons Recommended Citation Pierre-Marie Dupuy, The International Law of State Responsibility: Revolution or Evolution?, 11 MICH. J. INT'L L. 105 (1989). Available at: https://repository.law.umich.edu/mjil/vol11/iss1/4 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE INTERNATIONAL LAW OF STATE RESPONSIBILITY: REVOLUTION OR EVOLUTION? Pierre-MarieDupuy * The time seems to have come to reassess the international law of state responsibility. Several questions are presented by current devel- opments in the theory and practice of attributing international legal responsibility to a sovereign state. What are the legal basis and the legal consequences of state responsibility? Which states have a legal interest in attributing state responsibility? Finally, has the structural function of international responsibility inside the international legal system evolved during the last decade?1 Until a few years ago, asking such questions would have only re- vealed very deep gaps in the legal knowledge of the questioner.
    [Show full text]
  • Newsletter [2021] No
    NEWSLETTER [2021] No. 6 l 2 8 June 2021 Welcome to the sixth Newsletter for 2021. “It is with great sadness that I write of the death of James Crawford on 31 May 2021 in The Hague where Congratulations he had served on the International Court of Justice The Australian Academy of Law celebrates the (ICJ) since 2015. Described as “the pre-eminent recognition of seven Fellows of the Academy in the international lawyer of our times”, he was also Queen's Birthday 2021 Honours List and endowed with a gentle sense of humour, generosity congratulates each of them: of spirit, and kindness, from which generations of students from Australia and around the world : For distinguished Professor Philip Alston AO benefited, among many others. service to the law, particularly in the area of international human rights, and to legal education. James undertook his undergraduate degrees at the University of Adelaide, where he later taught after : For The Honourable Patricia Bergin AO SC completing his doctorate at Oxford on the creation distinguished service to the law, and to the judiciary, of States in international law. to legal administration, and as a mentor and advisor. He subsequently held the professorial chair in : For The Honourable Michael Grant AO international law at the University of Sydney before distinguished service to the law, and to the judiciary, he was appointed Whewell Professor of International particularly as Chief Justice of the Northern Law at Cambridge University in 1992. During his Territory. time in Cambridge, he also served as Chair of the Professor Jane McAdam AO: For distinguished Faculty of Law and Director of the Lauterpacht service to international refugee law, particularly to Centre for International Law.
    [Show full text]
  • State Responsibility for Wrongful Conduct
    chapter 10 State Responsibility for Wrongful Conduct 10.1 For Whose Conduct does the State Bear Responsibility? The identification of State actors for the purposes of State responsibility are well developed in articles four to ten of the ilc Articles on State Responsibility, widely accepted as constituting customary international law.1 It is by now well established that States do not bear general responsibility for every individual entity under their jurisdiction but only for the conduct of limited types of enti- ties. Indeed, this principle can be traced through centuries of legal thought.2 The entities for which States bear responsibility are: • organs of the State, almost always defined as such under municipal law and only otherwise in ‘exceptional circumstances’ based on a test of complete dependence3; • non-State entities exercising elements of governmental authority4; • organs of one State at the disposal of (the organ of) another State5; • agents of the State: persons or entities acting on the instructions of or under the effective control of a State organ6; 1 Articles on Responsibility of States for Internationally Wrongful Acts 2001 in Report of the International Law Commission on the Work of its Fifty-third Session, un gaor, un Doc A/56/10 (2001) (ilc Articles on State Responsibility); Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] icj Rep 43, paras 173, 385 and 398 (recognising articles 4 and 8 as customary law). 2 Olivier de Frouville, ‘Attribution of Conduct to the State: Private Individuals’ in James Crawford, Alain Pellet and Simon Olleson (eds); Kate Parlett (asst ed), The Law of International Responsibility (Oxford University Press 2010) 257–261 (citing, inter alia, Grotius and Vattel).
    [Show full text]
  • Brownlie's Principles of Public International Law by James
    BOOK REVIEW Book Reviews BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW BY JAMES CRAWFORD (OXFORD UNIVERSITY PRESS, 9TH ED, 2019) 872 PAGES. PRICE GBP49.99 (PAPERBACK) ISBN 9780198737445. INTERNATIONAL LAW BY GLEIDER HERNÁNDEZ (OXFORD UNIVERSITY PRESS, 2019) 664 PAGES. PRICE GBP35.99 (PAPERBACK) ISBN 9780198748830. The two textbooks of public international law under review between them represent several generations of scholarship. The first book, Brownlie’s Principles of Public International Law (‘Brownlie’s Principles’),1 is the ninth edition of a book first published by Sir Ian Brownlie in 1966, which has been considered in many ways authoritative and has been widely celebrated in its earlier incarnations.2 Its author, James Crawford, here writing his second edition of this text, is a doyen (for many, the doyen) of international law and a leading thinker in, as well as practitioner of, international law since the last millennium. The second book, International Law,3 is the first (but one suspects not the last) edition of this title and is written by a rising star in international law, Gleider Hernández. Together, these contributions represent the ‘state of the art’ in the textbook of public international law as we enter the third decade of the current millennium. As such, they give cause for much appreciation, and even some tentative celebration, in dark times. This review will focus in particular on a teacher’s perspective of both titles. With International Law, this is straightforward in that the book’s intended readership is defined as students and newcomers to international law.4 In that respect, it may be thought of as an introduction to the subject, albeit a most comprehensive and theoretically informed one.
    [Show full text]