International Courts and Tribunals as Determiners of the Law on State Responsibility

Mik, Cezary

doi:10.1007/978-3-030-20744-1_17

Cezary Mik²

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Abstract

The roots of the international law (IL) of State Responsibility (SR) are without doubt customary. The customary legal status of some fundamental principles concerning the international responsibility of States has been confirmed by international courts and tribunals since being established. The PCIJ acquis occupies a special place in this field. However, the scope of the customary rules on SR has never been unequivocally determined. Some of the rules were developed in the legal practice after judicial decisions were made. Nevertheless, relatively many remain controversial as to their status and content.

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Notes

1.
Tams (2015), pp. 292–296.
2.
UN GA resolution 799 (VIII), 7 December 1953, 24 abstentions.
3.
Commentaries to the ARSIWA: Yearbook of the ILC 2001, vol. II, Part II, United Nations 2008, pp. 31 and seq.; http://legal.un.org/docs/?path=../ilc/texts/instruments/english/commentaries/9_6_2001.pdf&lang=EF. Accessed: 6 March 2019.
4.
A/RES/174(II).
5.
The ILC may use other options. It adopts draft principles (allocation of loss in the case of transboundary harm, 2006), guiding principles (unilateral declarations, 2006), guide to practice (reservations, 2011), conclusions (fragmentation, 2006, identification of customary law, 2018). On the shift from legislative to non-legislative codifications: Bordin (2014), pp. 538–546.
6.
ILC Yearbook 2001, vol. I, pp. 304–305.
7.
To unresolved issues belonged: (1) the definition of damage and injury; (2) Part Two, Chapter Three (Consequences of serious breaches of certain obligations); (3) separate Chapter on countermeasures (necessity, sufficiency), three controversial Articles 51, 53, 54; LaGrand: necessity of review of principle of cessation and related Articles; (4) dispute settlement (Part Three, first reading), future form of the Articles (is a convention the only option). J. Crawford, Fourth report on State responsibility, A/CN.4/517 and Add.1.
8.
On debate in the ILC and GA: Caron (2002), pp. 861–866.
9.
A/RES/56/83, without vote.
10.
A/RES/59/35 (2 December 2004), A/RES/62/61 (6 December 2007), A/RES/65/19 (6 December 2010), A/RES/68/104 (16 December 2013), A/RES/71/133 (13 December 2016).
11.
Responsibility of States for internationally wrongful acts. Comments and information received from Governments. Report of the Secretary-General: A/62/63 (9 March 2007) and A/62/63/Add. 1 (12 June 2007), A/65/96 (14 May 2010) and A/65/96/Add.1 (30 September 2010), A/68/69 (27 March 2013) and A/68/69/Add.1 (28.6.2013).
12.
Responsibility of States for internationally wrongful acts. Compilation of decisions of international courts, tribunals and other bodies. Report of the Secretary-General: A/62/62 (1 February 2007; it contains decisions pertaining draft articles from before they had been finally adopted), A/65/76 (30 April 2010), A/68/72 (30 April 2013), A/71/80 (21 April 2016) and A/71/80/Add.1 (20 June 2017). Not all decisions compiled in reports expressly refer to the ARSIWA.
13.
Report of 20 June 2017, A/71/80/Add.1.
14.
Crawford (2002b), pp. 886–888.
15.
Critical analysis: Kurtz (2010), pp. 200 and seq.
16.
Tams (2018), p. 77: “it is important to note the very unusual features of the process of legal development of the law of State responsibility: its length (lasting, even on a conservative estimate that only begins with Ago, from 1963 to 2011); its openness (with changes of direction and major doctrinal debate) and its almost discursive character (with constant feedback loops be-tween the ILC, governments and other actors of international law).”
17.
See Pellet (2006), pp. 735 and seq.
18.
Thirlway (2014), pp. 5–8.
19.
Thirlway (2014), p. 8, explains: “they do not normally purport to be ultimate sources, but rather intermediaries”. According to the author, judicial decisions are “material rather than formal sources, but material sources having a special degree of authority” (p. 117).
20.
Pellet (2018), pp. 33–34.
21.
The UN GA welcomed the draft conclusions (without vote). Resolution of 20.12.2018, A/73/10, annex. The Assembly “brings them to the attention of States and all who may be called upon to identify rules of customary international law”. The Conclusions with commentaries (ILC Report 2018, pp. 149–150): http://legal.un.org/docs/?path=../ilc/texts/instruments/english/commentaries/1_13_2018.pdf&lang=EF. Accessed: 6 March 2019.
22.
On the role on national courts: Olesson (2013), pp. 615 and seq.; Nollkaemper (2007), pp. 760 and seq.
23.
For the ILC, decisions of the WTO bodies and procedural or interlocutory orders are judicial decisions. It attributes also some weight to separate and dissenting opinions of judges. At the same time the ILC is silent as far as i.e. Human Rights Committee views are concerned.
24.
See, however, Continental Shelf Case (Libya v. Malta), Judgment of 3 March 1985, ICJ Rep. 1985, p. 13 (at 29), para. 27; Legality of the threat or use of nuclear weapons, Advisory Opinion of 8 July 1996, ICJ 1996, p. 226 (at 253), para. 64.
25.
A state’s failure to act may be considered practice if three conditions are fulfilled: (1) if the conduct of the other state calls for a response (Pedra Branca Case, Malaysia/Singapore), which in his opinion “implies that the relevant practice ought to be one that affects the interests or rights of the State failing or refusing to act”; (2) “a State whose inaction is sought to be relied upon in identifying whether a rule of customary international law has emerged must have had actual knowledge of the practice in question or the circumstances must have been such that the State concerned is deemed to have had such knowledge” (Fisheries Case); (3) the inaction should be maintained “over a sufficient period of time”. Therefore, acquiescence understood as qualified silence is relevant. M. Wood, Third report on identification of customary international law, A/CN.4/682, 27 March 2015, points 23–25.
26.
See the ICJ, Navigational and Related Rights Case (Costa Rica v. Nicaragua), 13 July 2009. The Court held that it is particularly significant that Nicaragua did not contest a “practice which had continued undisturbed and unquestioned over a very long period”. It refused to acknowledge that “the customary right extends to fishing from vessels on the river.” It stated that “There is only limited and recent evidence of such a practice”. ICJ Rep. 2009, p. 213 (at 265–266), paras. 141, 143.
27.
In assessing a general practice and its acceptance as law, regard must be had to the overall context, the nature of the rule, and the particular circumstances in which the evidence in question is to be found (conclusion 3.1). The ILC is silent as to the moment of determination of a customary rule. Meanwhile, in most cases the existence and the content a customary rule is determined a posteriori. As a result, States may have no idea that the practice will be the base for custom and that they can react as persistent objectors.
28.
Crawford (2013b), p. 8, noted that the formation of “general part” of the law of SR, “occurred only late, at the beginning of the 20th century, and that formerly the law of State responsibility was at best in its infancy”.
29.
Tams, pp. 297–301.
30.
See Materials on the Responsibility of States for Internationally Wrongful Acts, United Nations Legislative Series, ST/LEG/SER.B/25, New York: United Nations 2012. The structure of the Materials is based on the ARSIWA, even if only some judicial decisions refer to Articles or their earlier versions.
31.
Crawford (2013a), p. 72.
32.
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 10 October 1984, ICJ Rep. 1984, p. 246 (at 299), para. 111.
33.
See Analytical Guide to the Work of the ILC: State responsibility, http://legal.un.org/ilc/guide/9_6.shtml. Accessed: 6 March 2019.
34.
Crawford (2002a), pp. 1 and seq.
35.
Wong (2018), p. 5.
36.
Wong (2018), p. 6.
37.
Crawford and Olesson (2005), p. 960.
38.
As Article 15 ILC Statute states, “progressive development of international law” means the preparation of draft conventions on subjects which have not yet been regulated by IL or in regard to which the law has not yet been sufficiently developed in the practice of States, while “codification of international law” denotes the more precise formulation and systematization of rules of IL in fields where there already has been extensive State practice, precedent and doctrine.
39.
See also point 3.
40.
Wong (2018), p. 8.
41.
Rightly, Bordin (2014), p. 547.
42.
See i.a. Lepard (2010), passim.
43.
Since 1997. See Bordin (2014), p. 544.
44.
Talmon (2015), pp. 421 and seq. Alschner and Charlotin (2018), pp. 89 and seq., mention that the ICJ made 1865 self-references between 1948 and 2013 (against 126 judgments being examined self-citation appeared in 101).
45.
Petersen (2017), p. 363.
46.
First, they were used as a legitimation device. The ICJ has been relying on treaties or UNGA resolutions in order to show that the specific principle was accepted by the vast majority of the international community. Second, the Court has been using written texts to add specificity to the often vague, unwritten principles. Petersen (2017), pp. 368, 372–375.
47.
Petersen (2017), pp. 366 and seq.
48.
See Article 59 of the ICJ Statute, Article 296 together with Article 287 of the UNCLOS (it concerns the ICJ, ITLOS, arbitration); Article 31 (3), 33 of the ITLOS Statute; Article 46 (1) of the ECHRs; Article 68 (2) of the AMCHRs; Article 30 of the Protocol to the AfCharterHPsRs. See also Article 84 of the 1907 Convention for the pacific settlement of international disputes.
49.
See, however, the Article 105 of the ICC Rome Statute (the sentence of imprisonment shall be binding on all States Parties).
50.
Explicite Article 19 of the WTO DSU.
51.
See, however, Thirlway (2016), pp. 122–125.
52.
This principle is sometimes explicitly pronounced in legal bases of courts and tribunals.
53.
Explicite Article 5 of the Protocol No. 16 to the ECHRs. It is interesting that in most cases there is no regulation of effects of advisory opinions.
54.
There is no difference between judgments and advisory opinions.
55.
Shahabuddeen (1997), esp. pp. 67 and seq. His position is cautious. Also Alschner and Charlotin (2018), p. 90, who consider 111 ICJ judgments and 45 PCIJ decisions as precedents.
56.
See i.e. GA vote on resolutions on compliance with the ICJ judgments in Military and Paramilitary Activities in and against Nicaragua (1986; A/RES/41/31, until 1989), or Avena and Other Mexican Nationals (2004; A/RES/73/257) and on follow-up to the Advisory Opinion on Legality of Force (1996; until now).
57.
Pellet (2018), p. 38.
58.
See also Hernández (2014), pp. 166–193.
59.
Boyle and Chinkin (2007), pp. 293–300. On specific features of court’s precedents and arbitration precedents: Forteau (2016), and Fernández Arroyo (2016), respectively pp. 87 and seq. and pp. 113 and seq.
60.
Bordin (2014), p. 547.
61.
Australia, Canada, New Zealand, 2016; UK, UN SG report, 2010; US, UN SG report, 2007; Nordic countries, UN SG report, 2007.
62.
Kuwait, UN SG report 2007; Articles 10 (conduct of an insurrectional or other movement), 12 (existence of a breach of an international obligation), 23 (force majeure), 24 (distress), 26 (compliance with peremptory norms) are mentioned in this context.
63.
Germany, UN SG report, 2010; UK, UN SG report, 2016.
64.
Dailler (2010), p. 41.
65.
Dailler (2010), pp. 43–44.
66.
Crawford (2013a), p. 74.
67.
Boyle and Chinkin (2007), p. 182.
68.
The ICJ has referred to earlier versions of the drafts on SR since 1997 (Gabčikovo).
69.
The report covers also 50 cases with 202 references in opinions of judges appended to a decision, 157 cases with 792 references in submissions by parties to a dispute.
70.
See more Crawford (2013a), pp. 81–85.
71.
See i.a. Jurisdictional Immunities of the State (Germany v. Italy), Judgment of 3 February 2012, I.C.J. Reports 2012, p. 99; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, I.C.J. Reports 2012, p. 422; Whaling in the Antarcic Case (Australia v. Japan), Judgment of 31 March 2014, I.C.J. Reports 2014, p. 226; Obligation to negotiate access to the Pacific Ocean (Bolivia v. Chile), Judgment of 1 October 2018, nyr.
72.
Ex. Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment of 5 December 2011, I.C.J. Reports 2011, p. 644.
73.
See Crawford and Olesson (2005), pp. 960–965, on early controversies which appeared during debate on ARSIWA in the UN.
74.
Pacht (2014), pp. 445–447.
75.
See broadly Pacht (2014), pp. 447–462.
76.
Negotiations could cause the unwarranted change to long-accepted rules, through an ill-advised vote, adoption by consensus of a “watered-down” text, or by means of dismemberment of those components which are more controversial or whose inclusion in the text might be considered to be more in the nature of de lege ferenda than lex lata. There is a risk of politicisation of law-making process. It is in the interest of weaker states not to have a convention, some states want to scuttle the idea of conventional regulation by the conference. Pacht (2014), pp. 448–449.
77.
The convention could attract few ratifications, or many reservations, leaving the instrument languishing with a prolonged entry into force, or anaemic ratification rate, and accordingly casting doubts as to the legal authority of the rules on State responsibility contained therein (risk of marginalization). Pacht (2014), pp. 447–450. See also the position of Australia, Canada and New Zealand, the UN SG report, 2016.
78.
See also the US opinion; the UN SG report, 2007. According to Germany, the elaboration of a convention depends on confirmation customary status of ARSIWA by all States and courts. The UN SG report, 2010.
79.
See also broadly Pacht (2014), pp. 462–471.
80.
As to Lithuania, negotiations should not prejudice the importance of the ARSIWA as a reflection of CIL and practice (UN SG report, 2010).
81.
El Salvador, UN SG reports, 2010, 2013, 2016.
82.
See also France, the UN SG report, 2010.
83.
Crawford et al. (2001), pp. 969–970.
84.
On difficulties in interpreting judicial decisions: Dailler (2010), p. 40.
85.
Crawford and Olesson (2005), p. 968, mention about case-law concerning Articles 40, 46, and 51.
86.
Pellet (2018), pp. 41–55.
87.
Pacht (2014), pp. 466–467.
88.
Pacht (2014), pp. 454–455.
89.
Pacht (2014), p. 452.
90.
Tams (2015), pp. 301–305.
91.
Pacht (2014), p. 451.
92.
There are limited differences between the ARSIWA and Articles drafted by the ILC on responsibility of international organizations (2011). Perhaps, it would be useful to join them in one convention.

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International and European Law, Cardinal Stefan Wyszynski University, Faculty of Law and Administration, Warszawa, Poland
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Mik, C. (2019). International Courts and Tribunals as Determiners of the Law on State Responsibility. In: Pinto de Albuquerque, P., Wojtyczek, K. (eds) Judicial Power in a Globalized World. Springer, Cham. https://doi.org/10.1007/978-3-030-20744-1_17

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