THE IMPACT OF THE ILC’S ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS — PRELIMINARY DRAFT — SIMON OLLESON THE IMPACT OF THE ILC’S ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS — PRELIMINARY DRAFT — TABLE OF CONTENTS Table of Contents i Foreword iv PART ONE THE INTERNATIONALLY WRONGFUL ACT OF A STATE CHAPTER I – GENERAL PRINCIPLES 1 Article 1 – Responsibility of a State for its internationally wrongful acts 2 Article 2 – Elements of an internationally wrongful act of a State 6 Article 3 – Characterization of an act of a State as internationally wrongful 11 CHAPTER II – ATTRIBUTION OF CONDUCT TO A STATE 17 Article 4 – Conduct of organs of a State 20 Article 5 – Conduct of persons or entities exercising elements of governmental 61 authority Article 6 – Conduct of organs placed at the disposal of a State by another State 73 Article 7 – Excess of authority or contravention of instructions 76 Article 8 – Conduct directed or controlled by a State 82 Article 9 – Conduct carried out in the absence or default of the official authorities 94 Article 10 – Conduct of an insurrectional or other movement 95 Article 11 – Conduct acknowledged and adopted by a State as its own 96 CHAPTER III – BREACH OF AN INTERNATIONAL OBLIGATION 100 Article 12 – Existence of a breach of an international obligation 101 Article 13 – International obligation in force for a State 103 Article 14 – Extension in time of the breach of an international obligation 115 Article 15 – Breach consisting of a composite act 127 CHAPTER IV – RESPONSIBILITY OF A STATE IN CONNECTION WITH THE ACT OF ANOTHER STATE 135 Article 16 – Aid or assistance in the commission of an internationally wrongful act 136 Article 17 – Direction and control exercised over the commission of an internationally wrongful i act 139 Article 18 – Coercion of another State 140 Article 19 – Effect of this Chapter 141 CHAPTER V – CIRCUMSTANCES PRECLUDING WRONGFULNESS 142 Article 20 – Consent 144 Article 21 – Self-defence 149 Article 22 – Countermeasures in respect of an internationally wrongful act 153 Article 23 – Force majeure 154 Article 24 – Distress 158 Article 25 – Necessity 159 Article 26 – Compliance with peremptory norms 183 Article 27 – Consequences of invoking a circumstance precluding wrongfulness 184 PART TWO CONTENT OF THE INTERNATIONAL RESPONSIBILITY OF A STATE CHAPTER I – GENERAL PRINCIPLES 190 Article 28 – Legal consequences of an internationally wrongful act 191 Article 29 – Continued duty of performance 193 Article 30 – Cessation and non-repetition 195 Article 31 – Reparation 201 Article 32 – Irrelevance of internal law 210 Article 33 – Scope of international obligations set out in this Part 211 CHAPTER II – REPARATION FOR INJURY 212 Article 34 – Forms of reparation 213 Article 35 – Restitution 215 Article 36 – Compensation 222 Article 37 – Satisfaction 229 Article 38 – Interest 232 Article 39 – Contribution to the injury 235 CHAPTER III – SERIOUS BREACHES OF OBLIGATIONS UNDER PEREMPTORY NORMS OF GENERAL INTERNATIONAL LAW 237 Article 40 – Application of this Chapter 237 Article 41 – Particular consequences of a serious breach of an obligation under this Chapter 237 PART THREE THE IMPLEMENTATION OF THE INTERNATIONAL RESPONSIBILITY OF A STATE CHAPTER I – INVOCATION OF THE RESPONSIBILITY OF A STATE 248 Article 42 – Invocation of responsibility by an injured State 249 Article 43 – Notice of claim by an injured State 250 Article 44 – Admissibility of claims 252 Article 45 – Loss of the right to invoke responsibility 254 Article 46 – Plurality of injured States 256 Article 47 – Plurality of responsible States 257 Article 48 – Invocation of responsibility by a State other than an injured State 263 CHAPTER II – COUNTERMEASURES 267 Article 49 – Object and limits of countermeasures 269 Article 50 – Obligations not affected by countermeasures 272 Article 51 – Proportionality 275 Article 52 – Conditions relating to resort to countermeasures 278 Article 53 – Termination of countermeasures 279 Article 54 – Measures taken by States other than an injured State 280 PART FOUR GENERAL PROVISIONS Article 55 – Lex specialis 281 Article 56 – Questions of State responsibility not regulated by these articles 286 Article 57 – Responsibility of an international organization 287 Article 58 – Individual responsibility 288 Article 59 – Charter of the United Nations 289 THE IMPACT OF THE ILC’S ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS — PRELIMINARY DRAFT — Foreword This is the preliminary draft of the outcome of a study carried out for the British Institute of International and Comparative Law. The study is aimed at providing a portrayal of the impact and influence of the Articles on the Responsibility of States for Internationally Wrongful Acts (‘the Articles’), since their adoption on second reading by the International Law Commission in 2001. This preliminary draft is being circulated for information in advance of the debate to take place during the 62nd session of the General Assembly as to whether any further action should be taken in relation to the Articles,1 and in particular as to whether a diplomatic conference should be convened in order to transform the Articles into a multilateral convention on State responsibility. As mandated by the terms of General Assembly Resolution 59/35, the UN Secretariat produced a compilation of express references to the Articles and their Commentaries in international judicial practice.2 Although there is inevitably some overlap with the Secretariat compilation, the present study has a scope which is materially wider:3 first, it includes references to the Articles made in the separate or dissenting opinions of judges of both the International Court of Justice and other bodies; second, it aims to provide a greater amount of context to instances of express reference, so as to provide a better understanding of the circumstances in which reference has been made to the Articles; third, it aims to provide some comment upon, and where appropriate, criticism of, the way in which the Articles have been applied in specific instances; fourth, it includes the most important instances of reliance on the Articles by domestic courts. However, most importantly, the study aims to provide a survey not only of express references to the Articles, but also to the most important judicial pronouncements (in particular those of the International Court of Justice) which, although made without express reference to the Articles, are relevant to matters falling within their subject matter and which are therefore relevant to an assessment of the impact of the Articles since their adoption. The present study therefore aims to catalogue the major instances of relevant judicial and arbitral practice in relation to the international law of State responsibility between 9 August 2001, the date of completion of the ILC’s work on the topic of State responsibility, and 10 October 2007, and in 1 For the General Assembly’s previous action in this regard, see General Assembly Resolution 56/83 (2001) and General Assembly Resolution 59/35 (2004). 2 See ‘Responsibility of States for internationally wrongful acts; Compilation of decisions of international courts, tribunals and other bodies; Report of the Secretary-General’, UN doc. A/62/62 and Add.1. 3 Although in one respect it is narrower, as only practice postdating the adoption of the Articles by the International Law Commission is included. iv Foreword the process enable an assessment of the extent to which the Articles have both been expressly relied upon, and the extent to which they are consistent with the prevailing practice in relation to the law of State responsibility. In doing so, the study includes a number of instances of express reliance on the Articles by international courts and tribunals which are not included in the Secretariat compilation; the majority of these instances have only been made publicly available since the completion of the Secretariat compilation. Finally, it should be emphasised that the present study does not attempt to express a view as to whether the Articles as a whole, or any particular provision of them, represent customary international law. Nevertheless, where appropriate, attention is drawn to the views of courts and tribunals which have expressed an opinion in this regard. * * * Support for this project has been generously provided by the Foreign and Commonwealth Office of the United Kingdom and Lovells LLP. The author wishes to express his deep gratitude to Professor Gillian Triggs, the outgoing Director of the British Institute, as well as to Daniel Bethlehem, Sir Michael Wood, and Dr Federico Ortino for their advice, support and encouragement at various stages of the work on this project. Special thanks are due to Professor James Crawford for reading an initial draft and for always being available to discuss obscure points of the law of State responsibility. Finally, the author owes an enormous debt to Silvia Borelli, who patiently read a number of earlier drafts and provided numerous and invaluable comments. All views expressed (as well as all errors) are solely those of the author. 10 October 2007 PART ONE THE INTERNATIONALLY WRONGFUL ACT OF A STATE CHAPTER I GENERAL PRINCIPLES The provisions contained in Chapter I of Part One of the Articles embody principles which are to a large extent axiomatic, reflecting fundamental conceptions of the international law of State responsibility. Article 1 sets out the basic proposition that every wrongful