ICJ Appeal

INTERNATIONAL COURT OF JUSTICE
APPEAL RELATING TO THE JURISDICTION OF THE

ICAO COUNCIL UNDER ARTICLE II, SECTION 2, OF THE
1944 INTERNATIONAL AIR SERVICES TRANSIT AGREEMENT
(BAHRAIN, EGYPT AND UNITED ARAB EMIRATES v. QATAR)
MEMORIAL OF THE KINGDOM OF BAHRAIN,

THE ARAB REPUBLIC OF EGYPT
AND THE UNITED ARAB EMIRATES
Volume II of VII
Annexes 1 – 21
27 DECEMBER 2018
LIST OF ANNEXES
VOLUME II
International Treaties and Rules
Annex 1 Convention on International Civil Aviation, signed at 1

Chicago on 7 December 1944
Annex 2 International Air Services Transit Agreement, signed at 43

Chicago on 7 December 1944
Annex 3 Pact of the League of Arab States, signed at Cairo on 51

22 March 1945
Annex 4 Agreement between the United Nations and the 71

International Civil Aviation Organization, signed at
New York on 1 October 1947
Annex 5 International Law Commission, Commentary on the 87

Draft Convention on Arbitral Procedure adopted by the
ILC at its Fifth Session (1955), Articles 14 and 30
Annex 6 ICAO, Rules for the Settlement of Differences, approved 99

on 9 April 1957; amended on 10 November 1975
Annex 7 International Law Commission, Model Rules on Arbitral 115

Procedure adopted by the ILC at its Tenth Session (1958)
Annex 8 Charter of the Co-operation Council for the Arab States 123
of the Gulf, concluded at Abu Dhabi on 25 May 1981
Annex 9 United Nations Convention on the Law of the Sea, 165

signed at Montego Bay on 10 December 1982,
Part XV – Settlement of Disputes
Annex 10 League of Arab States, Arab Convention on the 179

Suppression of Terrorism, adopted at Cairo on 22 April
1998
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Annex 11 Convention of the Organization of the Islamic 203
Conference on Combating International Terrorism,
adopted at Ouagadougou on 1 July 1999
Annex 12 International Convention for the Suppression of 221

the Financing of Terrorism, signed at New York on
9 December 1999
Annex 13 International Law Commission, Articles on 253

Responsibility of States for Internationally Wrongful
Acts (2001), in Report of the International Law
Commission on the Work of its Fifty-third Session
(2001)
Annex 14 GCC Anti-Terrorism Agreement, signed at Kuwait City 369

on 4 May 2004
Annex 15 UNCITRAL Model Law on International Commercial 403

Arbitration 1985, with amendments as adopted in 2006
Annex 16 Security Agreement Between the States of the Gulf 453

Cooperation Council, signed at Riyadh on 13 November
2012
Annex 17 ICAO, Rules of Procedure for the Council, Ninth Edition 475
2013
Annex 18 UNCITRAL Arbitration Rules 2013, Article 17 515
Annex 19 First Riyadh Agreement, 23 and 24 November 2013 519
Annex 20 Mechanism Implementing the Riyadh Agreement, 525

17 April 2014
Annex 21 Supplementary Riyadh Agreement, 16 November 2014 537
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Annex 1
Convention on International Civil Aviation,

signed at Chicago on 7 December 1944
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International Air Services Transit Agreement,

signed at Chicago on 7 December 1944
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Agreement between the United Nations and the International Civil Aviation
Organization, signed at New York on 1 October 1947
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International Law Commission, Commentary on the Draft

Convention on Arbitral Procedure adopted by the ILC at
its Fifth Session (1955); Excerpt, Articles 14 and 30,
pp. 55-56, 105-110
United Nations document A/CN.4/92
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Document:-
A/CN.4/92
Commentary on the Draft Convention on Arbitral Procedure Adopted by the International

Law Commission at its Fifth Session, prepared by the Secretariat
Topic:
Arbitral Procedure
Downloaded from the web site of the International Law Commission

(http://www.un.org/law/ilc/index.htm)
Copyright © United Nations
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ICAO, Rules for the Settlement of Differences, approved on 9 April 1957;

amended on 10 November 1975
ICAO document 7782/2
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International Law Commission, Model Rules on Arbitral Procedure

adopted by the ILC at its Tenth Session (1958)
United Nations, Yearbook of the International Law Commission,
Vol. II, pp. 83-86
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Model Rules on Arbitral Procedure

with a general commentary
1958
Text adopted by the International Law Commission at its tenth session, in 1958,
and submitted to the General Assembly as a part of the Commission’s report covering
the work of that session (at para. 22). The report, which also contains a general
commentary on the draft articles, appears in Yearbook of the International Law
Commission, 1958, vol. II.

2005
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Charter of the Co-operation Council for the Arab States of the Gulf,
concluded at Abu Dhabi on 25 May 1981
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United Nations Convention on the Law of the Sea,

signed at Montego Bay on 10 December 1982,
Part XV – Settlement of Disputes
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League of Arab States, Arab Convention on the Suppression

of Terrorism, adopted at Cairo on 22 April 1998
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Annex 11
Convention of the Organization of the Islamic Conference

on Combating International Terrorism,
adopted at Ouagadougou on 1 July 1999
https://www.refworld.org/docid/3de5e6646.html
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ANNEX TO RESOLUTION NO: 59/26-P
CONVENTION
OF THE ORGANISATION OF THE ISLAMIC CONFERENCE
ON
COMBATING INTERNATIONAL TERRORISM
The Member States of the Organisation of the Islamic Conference,
Pursuant to the tenets of the tolerant Islamic Sharia which reject all forms of
violence and terrorism, and in particular specially those based on extremism and call for
protection of human rights, which provisions are parallelled by the principles and rules of
international law founded on cooperation between peoples for the establishment of peace;
Abiding by the lofty, moral and religious principles particularly the provisions of the
Islamic Sharia as well as the human heritage of the Islamic Ummah.
Adhering to the Charter of the Organisation of the Islamic Conference, its objectives and
principles aimed at creating an appropriate atmosphere to strengthen cooperation and
understanding among Islamic States as well as relevant OIC resolutions;
Adhering to the principles of International Law and the United Nations Charter as well as
all relevant UN resolutions on procedures aimed at eliminating international terrorism,
and all other conventions and international instruments to which states acceding to this
Convention are parties and which call, inter alia, for the observance of the sovereignty,
stability, territorial integrity, political independence and security of states, and non-
intervention in their international affairs;
Proceeding from the rules of the Code of Conduct of the Organization of Islamic
Conference for Combating International Terrorism;
Desiring to promote cooperation among them for combating terrorist crimes that threaten
the security and stability of the Islamic States and endanger their vital interests;
Being committed to combating all forms and manifestations of terrorism and eliminating
its objectives and causes which target the lives and properties of people;
Confirming the legitimacy of the right of peoples to struggle against foreign occupation
and colonialist and racist regimes by all means, including armed struggle to liberate their
territories and attain their rights to self-determination and independence in compliance
with the purposes and principles of the Charter and resolutions of the United Nations;
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Believing that terrorism constitutes a gross violation of human rights, in particular the
right to freedom and security, as well as an obstacle to the free functioning of institutions
and socio-economic development, as it aims at destabilizing States;
Convinced that terrorism cannot be justified in any way, and that it should therefore be
unambiguously condemned in all its forms and manifestations, and all its actions, means
and practices, whatever its origin, causes or purposes, including direct or indirect actions
of States;
Recognizing the growing links between terrorism and organized crime, including illicit
trafficking in arms, narcotics, human beings and money laundering;
Have agreed to conclude this Convention, calling on all Member States of the
Organization of the Islamic Conference to accede to it.
PART I
Definition and General Provisions
Article 1
For the purposes of this Convention:
1. "Contracting State" or "Contracting Party" means every Member State in the

Organisation of the Islamic Conference that has ratified or adhered to this
Convention and deposited its instruments of ratification or adherence with the
General Secretariat of the Organisation.
2. "Terrorism" means any act of violence or threat thereof notwithstanding its
motives or intentions perpetrated to carry out an individual or collective criminal
plan with the aim of terrorizing people or threatening to harm them or imperiling
their lives, honour, freedoms, security or rights or exposing the environment or
any facility or public or private property to hazards or occupying or seizing them,
or endangering a national resource, or international facilities, or threatening the
stability, territorial integrity, political unity or sovereignty of independent States.
3. "Terrorist Crime" means any crime executed, started or participated in to realize a
terrorist objective in any of the Contracting States or against its nationals, assets
or interests or foreign facilities and nationals residing in its territory punishable by
its internal law.
4. Crimes stipulated in the following conventions are also considered terrorist crimes
with the exception of those excluded by the legislations of Contracting States or
those who have not ratified them:
a) Convention on "Offences and Other Acts Committed on Board of

Aircrafts" (Tokyo, 14.9.1963).
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b) Convention on "Suppression of Unlawful Seizure of Aircraft" (The

Hague, 16.12.1970).
c) Convention on "Suppression of Unlawful Acts Against the Safety of

Civil Aviation" signed at Montreal on 23.9.1971 and its Protocol
(Montreal, 10.12.1984).
d) Convention on the "Prevention and Punishment of Crimes Against

Persons Enjoying International Immunity, Including Diplomatic Agents"
(New York, 14.12.1973).
e) International Convention Against the Taking of Hostages (New York,

1979).
f) The United Nations Law of the Sea Convention of 1988 and its related
provisions on piracy at sea.
g) Convention on the "Physical Protection of Nuclear Material" (Vienna,

1979).
h) Protocol for the Suppression of Unlawful Acts of Violence at Airports

Serving International Civil Aviation-Supplementary to the Convention for
the Suppression of Unlawful Acts Against the Safety of Civil Aviation
(Montreal, 1988).
i) Protocol for the Suppression of Unlawful Acts Against the Safety of

Fixed Platforms on the Continental Shelf (Rome, 1988).
j) Convention for the Suppression of Unlawful Acts Against the Safety of

Maritime Navigation (Rome, 1988).
k) International Convention for the Suppression of Terrorist Bombings

(New York, 1997).
l) Convention on the Marking of Plastic Explosives for the purposes of

Detection (Montreal, 1991)
Article 2
a. Peoples' struggle including armed struggle against foreign occupation, aggression,

colonialism, and hegemony, aimed at liberation and self-determination in accordance
with the principles of international law shall not be considered a terrorist crime.
b. None of the terrorist crimes mentioned in the previous article shall be considered
political crimes.
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c. In the implementation of the provisions of this Convention the following crimes shall
not be considered political crimes even when politically motivated:
1. Aggression against kings and heads of state of Contracting States or against

their spouses, their ascendants or descendants.
2. Aggression against crown princes or vice-presidents or deputy heads of

government or ministers in any of the Contracting States.
3. Aggression against persons enjoying international immunity including

Ambassadors and diplomats in Contracting States or in countries of accreditation.
4. Murder or robbery by force against individuals or authorities or means of

transport and communications.
5. Acts of sabotage and destruction of public properties and properties geared for
public services, even if belonging to another Contracting State.
6. Crimes of manufacturing, smuggling or possessing arms and ammunition or

explosives or other materials prepared for committing terrorist crimes.
d. All forms of international crimes, including illegal trafficking in narcotics and human
beings money laundering aimed at financing terrorist objectives shall be considered
terrorist crimes.
PART II
Foundations of Islamic Cooperation for Combating Terrorism
Chapter I
In the Field of Security
Division I
Measures to Prevent and Combat Terrorist Crimes.
Article 3
I. The Contracting States are committed not to execute, initiate or participate in any
form in organizing or financing or committing or instigating or supporting
terrorist acts whether directly or indirectly.
II. Committed to prevent and combat terrorist crimes in conformity with the
provisions of this Convention and their respective domestic rules and regulations
the contracting States shall see to:
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(A) Preventive Measures:
1. Barring their territories from being used as an arena for planning,

organizing, executing terrorist crimes or initiating or participating in these
crimes in any form; including preventing the infiltration of terrorist
elements or their gaining refuge or residence therein individually or
collectively, or receiving hosting, training, arming, financing or extending
any facilities to them.
2. Cooperating and coordinating with the rest of the Contracting States,
particularly neighbouring countries which suffer from similar or common
terrorist crimes.
3. Developing and strengthening systems relating to detecting transportation,
importing, exporting stockpiling, and using of weapons, ammunition and
explosives as well as other means of aggression, killing and destruction in
addition to strengthening trans-border and custom controls in order to
intercept their transfer from one Contracting State to another or to other
States unless they are intended for specific legitimate purposes.
4. Developing and strengthening systems related to surveillance procedures,
securing borders, and land, sea and air passages in order to prevent
infiltration through them.
5. Strengthening systems for ensuring the safety and protection of
personalities, vital installations and means of public transport.
6. Re-enforcing protection, security and safety of diplomatic and consular
persons and missions; and regional and international organizations
accredited in the Contracting State in accordance with the conventions and
rules of international law which govern this subject.
7. Promoting security intelligence activities and coordinating them with the
intelligence activities of each Contracting State pursuant to their
respective intelligence policies, aimed at exposing the objectives of
terrorist groups and organisations, thwarting their designs and revealing
the extent of their danger to security and stability.
8. Establishing a data base by each Contracting State to collect and analyze
data on terrorist elements, groups, movements and organizations and
monitor developments of the phenomenon of terrorism and successful
experiences in combating it. Moreover, the Contracting State shall update
this information and exchange them with competent authorities in
9. other Contracting States within the limits of the laws and regulations in
every State.
(B) Combating Measures:
1. Arresting perpetrators of terrorists crimes and prosecuting them according

to the national law or extraditing them in accordance with the provisions
of this Convention or existing Conventions between the requesting and
requested States.
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2. Ensuring effective protection of persons working in the field of criminal

justice as well as to witnesses and investigators.
3. Ensuring effective protection of information sources and witnesses on
terrorist crimes.
4. Extending necessary assistance to victims of terrorism.
5. Establishing effective cooperation between the concerned organs in the
contracting States and the citizens for combating terrorism including
extending appropriate guarantees and appropriate incentives to encourage
informing on terrorist acts and submitting information to help uncover
them and cooperating in arresting the perpetrators.
Division II
Areas of Islamic cooperation for preventing and combating terrorist crimes.
Article 4
Contracting States shall cooperate among themselves to prevent and combat

terrorist crimes in accordance with the respective laws and regulations of each State in
the following areas:
First: Exchange of Information
1- Contracting States shall undertake to promote exchange of information among

them as such regarding:
a. Activities and crimes committed by terrorist groups, their leaders, their

elements, their headquarters, training, means and sources that provide
finance and weapons, types of arms, ammunition and explosives utilized
as well as other ways and means to attack, kill and destroy.
b. Means of communications and propaganda utilized by terrorist groups,
how they act, movement of their leaders, their elements and their travel
documents.
2- Contracting States shall expeditiously inform any other Contracting State

regarding available information about any terrorist crime perpetrated in its
territory aimed at undermining the interests of that State or its nationals and to
state the facts surrounding the crime in terms of its circumstances, criminals
involved, victims, losses, devices and methods utilized to carry out the crime,
without prejudicing investigation and inquiry requisites.
3- Contracting States shall exchange information with the other Parties to combat
terrorist crimes and to inform the Contracting State or other States of all available
information or data that could prevent terrorist crimes within its territory or
against its nationals or residents or interests.
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4- The Contracting States shall provide any other Contracting State with available
information or data that will:
a. Assist in arresting those accused of committing a terrorist crime against

the interests of that country or being implicated in such acts either by
assistance, collusion, instigation, or financing.
b. Contribute to confiscating any arms, weapons, explosives, devices or
funds spent or meant to be spent to commit a terrorist crime.
5- The Contracting States undertake to respect the confidentiality of information

exchanged between them and shall refrain from passing it to any non-Contracting
States or other parties without prior consent of the source country.
Second: Investigation
Each Contracting State pledges to promote cooperation with other contracting

states and to extend assistance in the field of investigation procedures in terms of
arresting escaped suspects or those convicted for terrorist crimes in accordance with the
laws and regulations of each country.
Third: Exchange of Expertise
1. Contracting States shall cooperate with each other to undertake and

exchange studies and researches on combating terrorist crimes as well as
exchange of expertise in this field.
2. Contracting States shall cooperate within the scope of their capabilities to
provide available technical assistance for preparing programmes or
holding joint training sessions with one or more Contracting State if the
need arises for personnel required in the field of combating terrorism in
order to improve their scientific and practical potential and upgrade their
performance standards.
Fourth: Education and Information Field
The Contracting States shall cooperate in:
3. Promoting information activities and supporting the mass media in order

to confront the vicious campaign against Islam, by projecting the true
image of tolerance of Islam, and exposing the designs and
danger of terrorist groups against the stability and security of Islamic

States.
4. Including the noble human values, which proscribe the practice of

terrorism in the educational curricula of Contracting States.
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5. Supporting efforts aimed at keeping abreast of the age by introducing an

advanced Islamic thought based on ijtihad by which Islam is
distinguished.
Chapter II
In the Judicial Field
Section I
Extraditing Criminals
Article 5
Contracting States shall undertake to extradite those indicted or convicted

of terrorist crimes, requested for extradition by any of these countries in
compliance with the rules and conditions stipulated in this Convention.
Article 6
Extradition shall not be permissible in the following cases:
6. If the Crime for which extradition is requested is deemed by the laws

enforced in the requested Contracting State as one of a political nature and
without prejudice to the provisions of Article 2, paragraphs 2 and 3 of this
Convention for which extradition is requested.
7. If the Crime for which extradition is sought relates solely to a dereliction
of military obligations.
8. If the Crime for which extradition is requested, was committed in the
territory of the requested Contracting State, unless this crime has
undermined the interests of the requesting Contracting State and its laws
stipulate that the perpetrators of those crimes shall be prosecuted and
punished providing that the requested country has not commenced
investigation or trial.
9. If the Crime has been the subject of a final sentence which has the force of
law in the requested Contracting State.
10. If the action at the time of the extradition request elapsed or the penalty
prescribed in accordance with the law in the Contacting State requesting
extradition.
11. Crimes committed outside the territory of the requesting Contracting State
by a person who was not its national and the law of the requested
Contracting State does not prosecute such a crime if perpetrated outside its
territory by such a person.
12. If pardon was granted and included the perpetrators of these crimes in the
requesting Contracting State.
13. If the legal system of the requested State does not permit extradition of its
national, then it shall be obliged to prosecute whosoever commits a
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terrorist crime if the act is punishable in both States by a freedom

restraining sentence for a minimum period of one year or more. The
nationality of the person requested for extradition shall be determined
according to the date of the crime taking into account the investigation
undertaken in this respect by the requesting State.
Article 7
If the person requested for extradition is under investigation or trial for

another crime in the requested State, his extradition shall be postponed until the
investigation is disposed of or the trial is over and the punishment implemented.
In this case, the requested State shall extradite him provisionally for investigation
or trial on condition that he shall be returned to it before execution of the sentence
issued in the requested State.
Article 8
For the purpose of extraditing crime perpetrators according to this Convention,

the domestic legislations of Contracting States shall not have any bearing as to
their differences with respect to the crime being classified as a felony or
misdemeanor, nor as to the penalty prescribed for it.
Section II
Rogatory Commission
Article 9
Each Contracting State shall request from any other Contracting State to
undertake in its territory rogatory action with respect to any judicial procedures
concerning an action involving a terrorist crime and in particular:
1. To hear witnesses and testimonies taken as evidence.

2. To communicate legal documents.
3. To implement inquiry and detention procedures.
4. To undertake on the scene inspection and analyse evidence.
5. To obtain necessary evidence or documents or records or their
certified copies.
Article 10
Each Contracting State shall implement rogatory commissions related to terrorist

crimes and may reject the request for implementation with respect to the
following cases.
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6. If the crime for which the request is made, is the subject of a

charge, investigation or trial in the country requested to implement
rogatory commission.
7. If the implementation of the request prejudices the sovereignty or
the security or public order of the country charged with this
mission.
Article 11
The request for rogatory mission shall be implemented promptly in

accordance with the provisions of the domestic laws of the requested State and
which may postpone its implementation until its investigation and prosecution
procedures are completed on the same subject or until the compelling reasons that
called for postponement are removed. In this case the requesting State shall be
informed of this postponement.
Article 12
The request for a rogatory commission related to a terrorist crime shall not
be refused on the grounds of the rule of transaction confidentiality for banks and
financial institutions. And in the implementation of the request the rules of the
enforcing State are to be followed.
Article 13
The procedure, undertaken through rogatory commission in accordance

with the provisions of this Convention, shall have the same legal effect as if it was
brought before the competent authority in the State requesting rogatory
commission. The results of its implementation shall only be utilized within the
scope of the rogatory commission.
Section 3
Judicial Cooperation
Article 14
Each Contracting State shall extend to the other contracting parties every
possible assistance as may be necessary for investigation or trial proceedings
related to terrorist crimes.
Article 15
14. If judicial competence accrues to one of the Contracting States for the
prosecution of a subject accused of a terrorist crime, this State may request
the country which hosts the suspect to prosecute him for this crime subject
to the host country's consent and providing the crime is punishable in that
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country by a freedom restraining sentence for at least one year or by a

more severe sanction. In such a case the requesting State shall pass all
investigation documents and evidence related to the crime to the requested
State.
15. Investigation or trial shall be conducted on the grounds of the case or
cases brought by the requesting State against the accused in accordance
with the legal provisions and procedures of the country holding the trial.
Article 16
The request for trial on the basis of para (1) of the previous article, entails
the suspension of procedures of prosecution, investigation and trial in the territory
of the requesting State except those relating to the requisites of cooperation,
assistance or rogatory commission sought by the State requested to hold the trial
procedures.
Article 17
16. Procedures undertaken in either of the two States - the requesting State or
the one where the trial is held - shall be subject to the law of the country
where the procedure is executed and which shall have legal preeminence
as may be stipulated in its legislation.
17. The requesting State shall not bring to trial or retrial the accused subject
unless the requested State refuses to prosecute him.
18. In all cases the State requested to hold trial shall inform the requesting
country of its action with respect to the request for trial and shall
communicate to it the results of its investigations or trial proceedings.
Article 18
The State requested to hold trial may undertake all measures and
procedures stipulated by its legislation regarding the accused both before and after
the request for trial is received.
Section 4
Seized Assets and Proceeds of the Crime
Article 19
If the extradition of a subject is decided, the Contracting State shall hand

over to the requesting State the assets and proceeds seized, used or related to the
terrorist crime, found in the possession of the wanted subject or with a third party.
Article 20
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The State requested to hand over the assets and proceeds may undertake
all necessary custodial measures and procedures for the implementation of its
obligation. It may also retain them provisionally if required for penal action
implemented therein or hand them to the requesting State on condition that they
shall be returned for the same purpose.
Section 5
Exchange of Evidence
Article 21
A Contracting State shall see to it that the evidence and effects of any terrorist
crime committed on its territory against another Contracting State are examined
by its competent organs and may seek assistance to that end from any other
Contracting State. Moreover, it shall take every necessary step to safeguard the
evidence and proof of their legal relevance. It may communicate, if requested, the
result to the country whose interest were targeted by the crime. The State or States
which have assisted in this case shall not pass this information to others.
PART III
Mechanism for Implementing Cooperation
Chapter I
Extradition Procedures
Article 22
The exchange of extradition requests between Contracting States shall be

undertaken directly through diplomatic channels or through their Ministries of
Justice or their substitute.
Article 23
A request for extradition shall be submitted in writing and shall include:
1. The original or an authenticated copy of the indictment, arrest order or any

other instruments of identical weight issued in line with the conditions stipulated
in the requesting State's legislation.
2. A statement of the acts for which extradition is sought specifying the dates and
places, where these acts were committed and their legal implications along with
reference to the legal articles under which they fall as well as a copy of these
articles.
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3. Description, in as much detail as possible, of the subject wanted for extradition

and any other information such as to determine his identity and nationality.
Article 24
1. The judicial authorities in the requesting State may approach the requested
State by any channel of written communication and seek the preventive arrest of
the wanted subject pending the arrival of the extradition request.
2. In this case the requested State may effect the preventive arrest of the wanted
subject. However, if the request for extradition is not submitted together with the
necessary documents listed in the above article, the subject whose extradition is
sought may not be detained for more than thirty days as of the day of his arrest.
Article 25
The requesting State shall send a request together with the documents listed in
Article 24 of this Convention. If the requested State accepts the request as valid, its
competent authorities shall implement it in accordance with its legislation and shall
promptly notify the requesting State of the action undertaken.
Article 26
• In all cases stipulated in the two articles above, preventive detention shall not exceed
sixty days after the date of arrest.
• Temporary release may be effected during the period stipulated in the previous article
and the requested State shall take appropriate measures to ensure that the wanted subject
does not escape.
• Release shall not prevent the re-arrest of the subject and his extradition if it was
requested after his release.
Article 27
If the requested State requires additional clarification to ascertain the conditions

stipulated in this chapter, it shall notify the requesting State thereof and fix a date for
provision of such clarifications.
Article 28
If the requested State received a number of extradition requests from various

countries related to the same or diverse acts, this State shall decide upon these requests
bearing in mind the circumstances and in particular the possibility of subsequent
extradition, date of receiving the requests, degree of the danger of the crime and where it
was committed.
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Chapter II
Measures for Rogatory Commissions
Article 29
Rogatory Commission requests must specify the following:
1. The competent authority that issued the request.

2. Subject of the request and its reason.
3. The identity and nationality of the person being the subject of the rogatory
commission (as may be possible).
4. Information on the crime requiring rogatory commission, its legal
definition and penalty inflicted on its perpetrators along with maximum
available information on its circumstances in order to ensure the efficient
implementation of the rogatory commission.
Article 30
1. The request for rogatory commission shall be forwarded by the Ministry

of Justice in the requesting State to the Ministry of Justice in the requested
State and returned in the same way.
2. In case of expediency, the request for rogatory commission shall be
directly forwarded by the judicial authorities in the requesting State to the
judicial authorities in the requested State. A copy of this rogatory
commission shall also be sent at the same time to the Ministry of Justice in
the requested State. The rogatory commission shall be returned together
with the papers concerning its implementation in the way stipulated in the
previous item.
3. The request for rogatory commission may be forwarded directly from the
judicial authorities to the competent authority in the requested country.
Answers may be sent directly through the said authority.
Article 31
Requests for rogatory commission and accompanying documents shall be signed

or stamped with the seal of a competent authority or that authorized by it. These
documents shall be exempted from all formal procedures that could be required by the
legislation of the requested State.
Article 32
If the authority that received the request for rogatory commission was not
competent enough to deal with it, it shall automatically transfer it to the competent
authority in its country. If the request is forwarded directly the answer shall reach the
requesting State in the same manner.
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Article 33
Any refusal for rogatory commission shall be explained.
Chapter III
Measures for Protecting Witnesses and Experts
Article 34
If the requesting State deems that the appearance of the witness or expert before
its judicial authorities is of special importance, reference thereto shall be made in its
request. The request or summons shall include an approximate statement in terms of
compensation, travel expenses, accommodation and commitment to make these
payments. The requested State shall invite the witness or expert and inform the requesting
State about his/her reply.
Article 35
1. No penalty nor coercive measure may be inflicted upon the witness or

expert who does not comply with the summons even if the writ provides
for such a penalty.
2. If the witness or expert arrives voluntarily to the territory of the requesting
State, he shall be summoned according to the provisions of the internal
legislation of this State.
Article 36
1. A witness or expert may not be subjected to trial, detained or have his

freedom restricted in the territory of the requesting State, for acts or court
rulings that preceded his departure for the requesting State, irrespective of
his nationality, as long as his appearance before the judicial authorities of
the said State is based on a summons.
2. No witness or expert, whatever his nationality, appearing before the
judiciary of the State in question on the basis of a summons, may be
prosecuted or detained or have his freedom restricted in any way on the
requesting State's territory for other acts or court decisions not mentioned
in the summons and predating his departure from the State from which he
is requested.
3. The immunity privileges stated in this Article shall become invalid if a
witness or expert remains on the requesting State's territories for over
thirty consecutive days despite his ability to return once his presence was
no longer requested by the judiciary, or if he returns to the requesting
State's territories after his departure.
Article 37
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1. The requesting State shall undertake all necessary measures to ensure the protection of
a witness or expert from publicity that could endanger him, his family or his property as a
result of his testimony and in particular:
a) To ensure confidentiality of the date and place of his arrival as well as the means
involved.
b) To ensure confidentiality of his accommodation, movements and locations where he

may be found.
c) To ensure confidentiality of the testimony and information given to the competent

judicial authorities.
2. The requesting State shall provide necessary security required by the condition of the
witness or expert and of his family, and circumstances of the case and types of expected
risks.
Article 38
1. If the witness or expert who is summoned to the requesting State is imprisoned in the
requested State, he shall be provisionally transferred to the location of the hearing at
which he is to testify according to conditions and times determined by the requested
State.
Transfer may be denied:
a. If the witness or expert refuses.

b. If his presence is necessary for undertaking criminal procedures in the
territory of the requested State.
c. If his transfer would prolong his imprisonment.
d. If there are considerations militating against his transfer.
2. The transferred witness or expert shall remain in detention in the territory of the
requesting State until he is repatriated to the requested Tate unless the latter requests his
release.
PART IV
Final Provisions
Article 39
This Convention shall be ratified, or adhered to, by the Signatory States and the
instruments of ratification or accession shall be deposited with the General Secretariat of
the Organisation of the Islamic Conference not exceeding a period of thirty days as of the
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date of ratification or accession. The General Secretariat shall inform all Member States
about any deposition and date of such instruments.
Article 40
1. This Convention shall enter into force thirty days after the deposit of the seventh
instrument of ratification or accession at the OIC General Secretariat.
2. This Convention shall not be applicable to any other Islamic State until it deposits its
instruments of ratification or accession with the General Secretariat of the Organisation
of the Islamic Conference and after a period of thirty days of the date of deposition.
Article 41
It is not permissible for any Contracting State to make any reservation, explicitly
or implicitly in conflict with the provisions of this Convention or deviating from its
objectives.
Article 42
1. A Contracting State shall not withdraw from this Convention except by a written
request to the Secretary General of the Organization of the Islamic Conference.
2. Withdrawal shall be affective six months after the date of sending the request to the
Secretary General.
This Convention has been written in English, Arabic and French of equal authenticity, of
one original deposited with the General Secretariat of the Organization of the Islamic
Conference which shall have it registered at the United Nations Organization, in
accordance with the provisions of Article 102 of its Charter. The General Secretariat shall
communicate approved copies thereof to the Member States of the Organization of the
Islamic Conference.
-------------------
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International Convention for the Suppression of the Financing

of Terrorism, signed at New York on 9 December 1999
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Annex 13
International Law Commission, 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 (2001), Doc. A/56/10
Reproduced in ILC Yearbook 2001, Vol. II(2)
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Draft articles on
Responsibility of States for Internationally Wrongful Acts,
with commentaries
2001
Text adopted by the International Law Commission at its fifty-third session, in

2001, and submitted to the General Assembly as a part of the Commission’s report
covering the work of that session (A/56/10). The report, which also contains
commentaries on the draft articles, appears in the Yearbook of the International Law
Commission, 2001, vol. II, Part Two, as corrected.

2008
254
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State responsibility 31
RESPONSIBILITY OF STATES FOR another State, and the circumstances in which the right to
INTERNATIONALLY WRONGFUL ACTS invoke responsibility may be lost;
(h) Laying down the conditions under which a State
General commentary may be entitled to respond to a breach of an international
obligation by taking countermeasures designed to ensure
(1) These articles seek to formulate, by way of codifi- the fulfilment of the obligations of the responsible State
cation and progressive development, the basic rules of under these articles.
international law concerning the responsibility of States
for their internationally wrongful acts. The emphasis is This is the province of the secondary rules of State
on the secondary rules of State responsibility: that is to responsibility.
say, the general conditions under international law for the
State to be considered responsible for wrongful actions or (4) A number of matters do not fall within the scope of
omissions, and the legal consequences which flow there- State responsibility as dealt with in the present articles:
from. The articles do not attempt to define the content of
the international obligations, the breach of which gives (a) As already noted, it is not the function of the arti-
rise to responsibility. This is the function of the primary cles to specify the content of the obligations laid down by
rules, whose codification would involve restating most of particular primary rules, or their interpretation. Nor do the
substantive customary and conventional international articles deal with the question whether and for how long
law. particular primary obligations are in force for a State. It
is a matter for the law of treaties to determine whether a
State is a party to a valid treaty, whether the treaty is in
(2) Roberto Ago, who was responsible for establishing force for that State and with respect to which provisions,
the basic structure and orientation of the project, saw the and how the treaty is to be interpreted. The same is true,
articles as specifying: mutatis mutandis, for other “sources” of international ob-
the principles which govern the responsibility of States for internation- ligations, such as customary international law. The arti-
ally wrongful acts, maintaining a strict distinction between this task cles take the existence and content of the primary rules
and the task of defining the rules that place obligations on States, the of international law as they are at the relevant time; they
violation of which may generate responsibility … [I]t is one thing to provide the framework for determining whether the con-
define a rule and the content of the obligation it imposes, and another
to determine whether that obligation has been violated and what should sequent obligations of each State have been breached, and
be the consequences of the violation. with what legal consequences for other States.
(3) Given the existence of a primary rule establishing (b) The consequences dealt with in the articles are
an obligation under international law for a State, and as- those which flow from the commission of an internation-
suming that a question has arisen as to whether that State ally wrongful act as such.33 No attempt is made to deal
has complied with the obligation, a number of further with the consequences of a breach for the continued valid-
issues of a general character arise. These include: ity or binding effect of the primary rule (e.g. the right of
an injured State to terminate or suspend a treaty for mate-
(a) The role of international law as distinct from the rial breach, as reflected in article 60 of the 1969 Vienna
internal law of the State concerned in characterizing Convention). Nor do the articles cover such indirect or
conduct as unlawful; additional consequences as may flow from the responses
of international organizations to wrongful conduct. In car-
(b) Determining in what circumstances conduct is rying out their functions it may be necessary for interna-
to be attributed to the State as a subject of international tional organizations to take a position on whether a State
law; has breached an international obligation. But even where
(c) Specifying when and for what period of time there this is so, the consequences will be those determined by
is or has been a breach of an international obligation by or within the framework of the constituent instrument of
a State; the organization, and these fall outside the scope of the
articles. This is particularly the case with action of the
(d) Determining in what circumstances a State may be United Nations under the Charter, which is specifically
responsible for the conduct of another State which is in- reserved by article 59.
compatible with an international obligation of the latter; (c) The articles deal only with the responsibility for
(e) Defining the circumstances in which the wrong- conduct which is internationally wrongful. There may be
fulness of conduct under international law may be pre- cases where States incur obligations to compensate for the
cluded; injurious consequences of conduct which is not prohibited,
and may even be expressly permitted, by international law
(f) Specifying the content of State responsibility, i.e. (e.g. compensation for property duly taken for a public
the new legal relations that arise from the commission purpose). There may also be cases where a State is obliged
by a State of an internationally wrongful act, in terms of to restore the status quo ante after some lawful activity
cessation of the wrongful act, and reparation for any has been completed. These requirements of compensation
injury done; or restoration would involve primary obligations; it would
be the failure to pay compensation, or to restore the status
(g) Determining any procedural or substantive pre-
conditions for one State to invoke the responsibility of 33 For the purposes of the articles, the term “internationally wrong-
ful act” includes an omission and extends to conduct consisting of
32 Yearbook ... 1970, vol. II, p. 306, document A/8010/Rev.l, several actions or omissions which together amount to an internation-
para. 66 (c). ally wrongful act. See paragraph (1) of the commentary to article 1.
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32 Report of the International Law Commission on the work of its fifty-third session
quo which would engage the international responsibility Chapter i

of the State concerned. Thus for the purposes of these
articles, international responsibility results exclusively GENERAL PRINCIPLES
from a wrongful act contrary to international law. This is
reflected in the title of the articles. Article 1. Responsibility of a State for its
internationally wrongful acts
(d) The articles are concerned only with the responsi-
bility of States for internationally wrongful conduct, leav- Every internationally wrongful act of a State entails
ing to one side issues of the responsibility of international the international responsibility of that State.
organizations or of other non-State entities (see articles
57 and 58). Commentary
(1) Article 1 states the basic principle underlying the
(5) On the other hand, the present articles are concerned articles as a whole, which is that a breach of internation-
with the whole field of State responsibility. Thus they are al law by a State entails its international responsibility.
not limited to breaches of obligations of a bilateral char- An internationally wrongful act of a State may consist
acter, e.g. under a bilateral treaty with another State. They in one or more actions or omissions or a combination of
apply to the whole field of the international obligations both. Whether there has been an internationally wrongful
of States, whether the obligation is owed to one or several act depends, first, on the requirements of the obligation
States, to an individual or group, or to the international which is said to have been breached and, secondly, on the
community as a whole. Being general in character, they framework conditions for such an act, which are set out in
are also for the most part residual. In principle, States are Part One. The term “international responsibility” covers
free, when establishing or agreeing to be bound by a rule, the new legal relations which arise under international law
to specify that its breach shall entail only particular con- by reason of the internationally wrongful act of a State.
sequences and thereby to exclude the ordinary rules of The content of these new legal relations is specified in
responsibility. This is made clear by article 55. Part Two.
(6) The present articles are divided into four parts. Part (2) PCIJ applied the principle set out in article 1 in a
One is entitled “The internationally wrongful act of a number of cases. For example, in the Phosphates in Mo-
State”. It deals with the requirements for the international rocco case, PCIJ affirmed that when a State commits an
responsibility of a State to arise. Part Two, “Content of internationally wrongful act against another State inter-
the international responsibility of a State”, deals with the national responsibility is established “immediately as be-
legal consequences for the responsible State of its inter- tween the two States”.34 ICJ has applied the principle on
nationally wrongful act, in particular as they concern ces- several occasions, for example in the Corfu Channel case,35
sation and reparation. Part Three is entitled “The imple- in the Military and Paramilitary Activities in and against
mentation of the international responsibility of a State”. Nicaragua case,36 and in the Gabčíkovo-Nagymaros
It identifies the State or States which may react to an Project case.37 The Court also referred to the principle
internationally wrongful act and specifies the modalities in its advisory opinions on Reparation for Injuries,38 and
by which this may be done, including, in certain circum- on the Interpretation of Peace Treaties (Second Phase),39
stances, by the taking of countermeasures as necessary to in which it stated that “refusal to fulfil a treaty obligation
ensure cessation of the wrongful act and reparation for its involves international responsibility”.40 Arbitral tribunals
consequences. Part Four contains certain general provi- have repeatedly affirmed the principle, for example in the
sions applicable to the articles as a whole. Claims of Italian Nationals Resident in Peru cases,41 in
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B,
No. 74, p. 10, at p. 28. See also S.S. “Wimbledon”, 1923, P.C.I.J.,
part One Series A, No. 1, p. 15, at p. 30; Factory at Chorzów, Jurisdiction, Judg-
ment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21; and ibid., Merits,
Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 29.
the internatiOnally wrOngful Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 4, at
aCt Of a state p. 23.
36 Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J.
Part One defines the general conditions necessary for Reports 1986, p. 14, at p. 142, para. 283, and p. 149, para. 292.
State responsibility to arise. Chapter I lays down three ba- 37 Gabčíkovo-Nagymaros Project (see footnote 27 above), at p. 38,
sic principles for responsibility from which the articles para. 47.
as a whole proceed. Chapter II defines the conditions 38 Reparation for Injuries Suffered in the Service of the United
under which conduct is attributable to the State. Chapter Nations, Advisory Opinion, I.C.J. Reports 1949, p. 174, at p. 184.
III spells out in general terms the conditions under which 9 Interpretation of Peace Treaties with Bulgaria, Hungary and
such conduct amounts to a breach of an international obli- Romania, Second Phase, Advisory Opinion, I.C.J. Reports 1950,
gation of the State concerned. Chapter IV deals with cer- p. 221.
40 Ibid., p. 228.
tain exceptional cases where one State may be responsible
41 Seven of these awards rendered in 1901 reiterated that “a uni-
for the conduct of another State not in conformity with an
international obligation of the latter. Chapter V defines versally recognized principle of international law states that the State
is responsible for the violations of the law of nations committed by its
the circumstances precluding the wrongfulness for con- agents” (UNRIAA, vol. XV (Sales No. 66.V.3), pp. 399 (Chiessa claim),
duct not in conformity with the international obligations 401 (Sessarego claim), 404 (Sanguinetti claim), 407 (Vercelli claim),
of a State. 408 (Queirolo claim), 409 (Roggero claim), and 411 (Miglia claim)).
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the Dickson Car Wheel Company case,42 in the Interna- ary, a way by which the responsible State could avoid
tional Fisheries Company case,43 in the British Claims in the application of coercion. A third view, which came to
the Spanish Zone of Morocco case44 and in the Armstrong prevail, held that the consequences of an internationally
Cork Company case.45 In the “Rainbow Warrior” case,46 wrongful act cannot be limited either to reparation or to
the arbitral tribunal stressed that “any violation by a State a “sanction”.51 In international law, as in any system of
of any obligation, of whatever origin, gives rise to State law, the wrongful act may give rise to various types of
responsibility”.47 legal relations, depending on the circumstances.
(3) That every internationally wrongful act of a State (4) Opinions have also differed on the question whether
entails the international responsibility of that State, and the legal relations arising from the occurrence of an in-
thus gives rise to new international legal relations addi- ternationally wrongful act were essentially bilateral, i.e.
tional to those which existed before the act took place, concerned only the relations of the responsible State and
has been widely recognized, both before48 and since49 ar- the injured State inter se. Increasingly it has been recog-
ticle 1 was first formulated by the Commission. It is nized that some wrongful acts engage the responsibility
true that there were early differences of opinion over the of the State concerned towards several or many States or
definition of the legal relationships arising from an in- even towards the international community as a whole. A
ternationally wrongful act. One approach, associated with significant step in this direction was taken by ICJ in the
Anzilotti, described the legal consequences deriving from Barcelona Traction case when it noted that:
an internationally wrongful act exclusively in terms of a an essential distinction should be drawn between the obligations of a
binding bilateral relationship thereby established between State towards the international community as a whole, and those arising
the wrongdoing State and the injured State, in which the vis-à-vis another State in the field of diplomatic protection. By their
very nature the former are the concern of all States. In view of the
obligation of the former State to make reparation is set importance of the rights involved, all States can be held to have a legal
against the “subjective” right of the latter State to require interest in their protection; they are obligations erga omnes.
reparation. Another view, associated with Kelsen, started
from the idea that the legal order is a coercive order and Every State, by virtue of its membership in the interna-
saw the authorization accorded to the injured State to ap- tional community, has a legal interest in the protection of
ply a coercive sanction against the responsible State as certain basic rights and the fulfilment of certain essential
the primary legal consequence flowing directly from the obligations. Among these the Court instanced “the outlaw-
wrongful act.50 According to this view, general interna- ing of acts of aggression, and of genocide, as also … the
tional law empowered the injured State to react to a wrong; principles and rules concerning the basic rights of the hu-
the obligation to make reparation was treated as subsidi- man person, including protection from slavery and racial
discrimination”.53 In later cases the Court has reaffirmed
42 Dickson Car Wheel Company (U.S.A.) v. United Mexican States,
this idea.54 The consequences of a broader conception of
UNRIAA, vol. IV (Sales No. 1951.V.1), p. 669, at p. 678 (1931). international responsibility must necessarily be reflected
43 International Fisheries Company (U.S.A.) v. United Mexican
States, ibid., p. 691, at p. 701 (1931).
in the articles which, although they include standard bilat-
44 According to the arbitrator, Max Huber, it is an indisputable prin- eral situations of responsibility, are not limited to them.
ciple that “responsibility is the necessary corollary of rights. All in-
ternational rights entail international responsibility”, UNRIAA, vol. II (5) Thus the term “international responsibility” in ar-
(Sales No. 1949.V.1), p. 615, at p. 641 (1925). ticle 1 covers the relations which arise under internation-
45 According to the Italian-United States Conciliation Commission,
al law from the internationally wrongful act of a State,
no State may “escape the responsibility arising out of the exercise of
an illicit action from the viewpoint of the general principles of inter- whether such relations are limited to the wrongdoing State
national law”, UNRIAA, vol. XIV (Sales No. 65.V.4), p. 159, at p. 163 and one injured State or whether they extend also to other
(1953). States or indeed to other subjects of international law, and
46 Case concerning the difference between New Zealand and whether they are centred on obligations of restitution or
France concerning the interpretation or application of two agreements compensation or also give the injured State the possibility
concluded on 9 July 1986 between the two States and which related of responding by way of countermeasures.
to the problems arising from the Rainbow Warrior affair, UNRIAA,
vol. XX (Sales No. E/F.93.V.3), p. 215 (1990).
47 Ibid., p. 251, para. 75. (6) The fact that under article 1 every internationally
48 See, e.g., D. Anzilotti, Corso di diritto internazionale, 4th ed. wrongful act of a State entails the international respon-
(Padua, CEDAM, 1955) vol. I, p. 385; W. Wengler, Völkerrecht (Berlin, sibility of that State does not mean that other States may
Springer, 1964), vol. I, p. 499; G. I. Tunkin, Teoria mezhdunarodnogo not also be held responsible for the conduct in question,
prava (Moscow, Mezhdunarodnye otnoshenia, 1970), p. 470, trans. W.
E. Butler, Theory of International Law (London, George Allen and
or for injury caused as a result. Under chapter II the same
Unwin, 1974), p. 415; and E. Jiménez de Aréchaga, “International 51 See, e.g., R. Ago, “Le délit international”, Recueil des cours...,
responsibility”, Manual of Public International Law, M. Sørensen,
ed. (London, Macmillan, 1968), p. 533. 1939–II (Paris, Sirey, 1947), vol. 68, p. 415, at pp. 430–440;
49 See, e.g., I. Brownlie, Principles of Public International Law, and L. Oppenheim, International Law: A Treatise, vol. I, Peace, 8th
5th ed. (Oxford University Press, 1998), p. 435; B. Conforti, Diritto ed., H. Lauterpacht, ed. (London, Longmans, Green and Co., 1955),
internazionale, 4th ed. (Milan, Editoriale Scientifica, 1995), p. 332; pp. 352–354.
52 Barcelona Traction (see footnote 25 above), p. 32, para. 33.
P. Daillier and A. Pellet, Droit international public (Nguyen Quoc
Dinh), 6th ed. (Paris, Librairie générale de droit et de jurisprudence, 53 Ibid., para. 34.
1999), p. 742; P.-M. Dupuy, Droit international public, 4th ed. (Paris, 54 See East Timor (Portugal v. Australia), Judgment, I.C.J. Reports
Dalloz, 1998), p. 414; and R. Wolfrum, “Internationally wrongful acts”, 1995, p. 90, at p. 102, para. 29; Legality of the Threat or Use of Nu-
Encyclopedia of Public International Law, R. Bernhardt, ed. (Amster- clear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 258,
dam, North-Holland, 1995), vol. II, p. 1398. para. 83; and Application of the Convention on the Prevention and Pun-
50 See H. Kelsen, Principles of International Law, 2nd ed., R. W. ishment of the Crime of Genocide, Preliminary Objections, Judgment,
Tucker, ed. (New York, Holt, Rinehart and Winston, 1966), p. 22. I.C.J. Reports 1996, p. 595, at pp. 615–616, paras. 31–32.
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conduct may be attributable to several States at the same ful act of the State, i.e. the constituent elements of such
time. Under chapter IV, one State may be responsible for an act. Two elements are identified. First, the conduct in
the internationally wrongful act of another, for example question must be attributable to the State under interna-
if the act was carried out under its direction and control. tional law. Secondly, for responsibility to attach to the act
Nonetheless the basic principle of international law is that of the State, the conduct must constitute a breach of an
each State is responsible for its own conduct in respect of international legal obligation in force for that State at that
its own international obligations. time.
(7) The articles deal only with the responsibility of (2) These two elements were specified, for example,
States. Of course, as ICJ affirmed in the Reparation for by PCIJ in the Phosphates in Morocco case. The Court
Injuries case, the United Nations “is a subject of inter- explicitly linked the creation of international responsibil-
national law and capable of possessing international ity with the existence of an “act being attributable to the
rights and duties … it has capacity to maintain its rights State and described as contrary to the treaty right[s] of
by bringing international claims”.55 The Court has also another State”.58 ICJ has also referred to the two elements
drawn attention to the responsibility of the United Nations on several occasions. In the United States Diplomatic and
for the conduct of its organs or agents.56 It may be that the Consular Staff in Tehran case, it pointed out that, in order
notion of responsibility for wrongful conduct is a basic el- to establish the responsibility of the Islamic Republic of
ement in the possession of international legal personality. Iran:
Nonetheless, special considerations apply to the respon-
[f]irst, it must determine how far, legally, the acts in question may be
sibility of other international legal persons, and these are regarded as imputable to the Iranian State. Secondly, it must consider
not covered in the articles.57 their compatibility or incompatibility with the obligations of Iran under
treaties in force or under any other rules of international law that may
be applicable.9
(8) As to terminology, the French term fait interna-
tionalement illicite is preferable to délit or other similar Similarly in the Dickson Car Wheel Company case, the
expressions which may have a special meaning in inter- Mexico-United States General Claims Commission noted
nal law. For the same reason, it is best to avoid, in Eng- that the condition required for a State to incur internation-
lish, such terms as “tort”, “delict” or “delinquency”, or al responsibility is “that an unlawful international act be
in Spanish the term delito. The French term fait interna- imputed to it, that is, that there exist a violation of a duty
tionalement illicite is better than acte internationalement imposed by an international juridical standard”.60
illicite, since wrongfulness often results from omissions
which are hardly indicated by the term acte. Moreover, the
latter term appears to imply that the legal consequences (3) The element of attribution has sometimes been
are intended by its author. For the same reasons, the term described as “subjective” and the element of breach as
hecho internacionalmente ilícito is adopted in the Spanish “objective”, but the articles avoid such terminology.61
text. In the English text, it is necessary to maintain the ex- Whether there has been a breach of a rule may depend
pression “internationally wrongful act”, since the French on the intention or knowledge of relevant State organs
fait has no exact equivalent; nonetheless, the term “act” is or agents and in that sense may be “subjective”. For ex-
intended to encompass omissions, and this is made clear ample, article II of the Convention on the Prevention and
in article 2. Punishment of the Crime of Genocide states that: “In the
present Convention, genocide means any of the following
acts committed with intent to destroy, in whole or in part,
Article 2. Elements of an internationally a national, ethnical, racial or religious group, as such …”
wrongful act of a State In other cases, the standard for breach of an obligation
may be “objective”, in the sense that the advertence or
There is an internationally wrongful act of a State otherwise of relevant State organs or agents may be ir-
when conduct consisting of an action or omission: relevant. Whether responsibility is “objective” or “subjec-
tive” in this sense depends on the circumstances, includ-
(a) is attributable to the State under international ing the content of the primary obligation in question. The
law; and articles lay down no general rule in that regard. The same
(b) constitutes a breach of an international obliga- is true of other standards, whether they involve some de-
tion of the State. gree of fault, culpability, negligence or want of due dili-
gence. Such standards vary from one context to another
for reasons which essentially relate to the object and
Commentary purpose of the treaty provision or other rule giving rise
to the primary obligation. Nor do the articles lay down
(1) Article 1 states the basic principle that every inter- any presumption in this regard as between the different
nationally wrongful act of a State entails its international
responsibility. Article 2 specifies the conditions required 58 See footnote 34 above.
to establish the existence of an internationally wrong- 59 United States Diplomatic and Consular Staff in Tehran, Judg-
ment, I.C.J. Reports 1980, p. 3, at p. 29, para. 56. Cf. page 41,
Reparation for
Injuries (see footnote 38 above), p. 179. para. 90. See also Military and Paramilitary Activities in and against
56
Difference Relating to Immunity from Legal Process of a Special Nicaragua (footnote 36 above), pp. 117–118, para. 226; and Gabčíkovo-
Rapporteur of the Commission on Human Rights, Advisory Opinion, Nagymaros Project (footnote 27 above), p. 54, para. 78.
I.C.J. Reports 1999, p. 62, at pp. 88–89, para. 66. 60 See footnote 42 above.
57 For the position of international organizations, see article 57 and 61 Cf. Yearbook ... 1973, vol. II, p. 179, document A/9010/Rev.1,
commentary. paragraph (1) of the commentary to article 3.
258
Annex 13
possible standards. Establishing these is a matter for the connected to conduct (whether an act or omission) which
interpretation and application of the primary rules en- is attributable to the State under one or other of the rules
gaged in the given case. set out in chapter II.
(4) Conduct attributable to the State can consist of ac-

(7) The second condition for the existence of an inter-
tions or omissions. Cases in which the international
nationally wrongful act of the State is that the conduct
responsibility of a State has been invoked on the basis of
attributable to the State should constitute a breach of an
an omission are at least as numerous as those based on
international obligation of that State. The terminology of
positive acts, and no difference in principle exists between
the two. Moreover, it may be difficult to isolate an “omis- breach of an international obligation of the State is long
sion” from the surrounding circumstances which are rel- established and is used to cover both treaty and non-treaty
evant to the determination of responsibility. For example, obligations. In its judgment on jurisdiction in the Fac-
in the Corfu Channel case, ICJ held that it was a sufficient tory at Chorzów case, PCIJ used the words “breach of
basis for Albanian responsibility that it knew, or must have an engagement”.66 It employed the same expression in its
known, of the presence of the mines in its territorial waters subsequent judgment on the merits.67 ICJ referred explic-
and did nothing to warn third States of their presence.62 itly to these words in the Reparation for Injuries case.68
In the United States Diplomatic and Consular Staff in The arbitral tribunal in the “Rainbow Warrior” affair re-
Tehran case, the Court concluded that the responsibility ferred to “any violation by a State of any obligation”.69
of the Islamic Republic of Iran was entailed by the “inac- In practice, terms such as “non-execution of international
tion” of its authorities which “failed to take appropriate obligations”, “acts incompatible with international ob-
steps”, in circumstances where such steps were evidently ligations”, “violation of an international obligation” or
called for.63 In other cases it may be the combination of “breach of an engagement” are also used.70 All these for-
an action and an omission which is the basis for respon- mulations have essentially the same meaning. The phrase
sibility.64 preferred in the articles is “breach of an international ob-
ligation” corresponding as it does to the language of Ar-
(5) For particular conduct to be characterized as an in- ticle 36, paragraph 2 (c), of the ICJ Statute.
ternationally wrongful act, it must first be attributable
to the State. The State is a real organized entity, a legal (8) In international law the idea of breach of an obliga-
person with full authority to act under international law. tion has often been equated with conduct contrary to the
But to recognize this is not to deny the elementary fact rights of others. PCIJ spoke of an act “contrary to the trea-
that the State cannot act of itself. An “act of the State” ty right[s] of another State” in its judgment in the Phos-
must involve some action or omission by a human being phates in Morocco case.71 That case concerned a limited
or group: “States can act only by and through their agents multilateral treaty which dealt with the mutual rights and
and representatives.”65 The question is which persons duties of the parties, but some have considered the cor-
should be considered as acting on behalf of the State, i.e. relation of obligations and rights as a general feature of
what constitutes an “act of the State” for the purposes of international law: there are no international obligations of
State responsibility. a subject of international law which are not matched by an
international right of another subject or subjects, or even
(6) In speaking of attribution to the State what is meant of the totality of the other subjects (the international com-
is the State as a subject of international law. Under many munity as a whole). But different incidents may attach to
legal systems, the State organs consist of different legal a right which is held in common by all other subjects of
persons (ministries or other legal entities), which are re- international law, as compared with a specific right of a
garded as having distinct rights and obligations for which given State or States. Different States may be beneficiar-
they alone can be sued and are responsible. For the pur- ies of an obligation in different ways, or may have dif-
poses of the international law of State responsibility ferent interests in respect of its performance. Multilateral
the position is different. The State is treated as a unity, obligations may thus differ from bilateral ones, in view of
consistent with its recognition as a single legal person in the diversity of legal rules and institutions and the wide
international law. In this as in other respects the attribu- variety of interests sought to be protected by them. But
tion of conduct to the State is necessarily a normative op- whether any obligation has been breached still raises the
eration. What is crucial is that a given event is sufficiently two basic questions identified in article 2, and this is so
62
whatever the character or provenance of the obligation
Corfu Channel, Merits (see footnote 35 above), pp. 22–23.
63
breached. It is a separate question who may invoke the re-
United States Diplomatic and Consular Staff in Tehran (see
footnote 59 above), pp. 31–32, paras. 63 and 67. See also Velásquez sponsibility arising from the breach of an obligation: this
Rodríguez v. Honduras case, Inter-American Court of Human Rights, question is dealt with in Part Three.72
Series C, No. 4, para. 170 (1988): “under international law a State is
responsible for the acts of its agents undertaken in their official capac- 66 Factory at Chorzów, Jurisdiction (see footnote 34 above).
ity and for their omissions”; and Affaire relative à l’acquisition de la 6 Factory at Chorzów, Merits (ibid.).
nationalité polonaise, UNRIAA, vol. I (Sales No. 1948.V.2), p. 401, at 68 Reparation for Injuries (see footnote 38 above), p. 184.
p. 425 (1924). 69 “Rainbow Warrior” (see footnote 46 above), p. 251, para. 75.
64 For example, under article 4 of the Convention relative to the
70 At the Conference for the Codification of International Law, held
Laying of Automatic Submarine Contact Mines (Hague Convention
VIII of 18 October 1907), a neutral Power which lays mines off its at The Hague in 1930, the term “any failure ... to carry out the inter-
coasts but omits to give the required notice to other States parties would national obligations of the State” was adopted (see Yearbook ... 1956,
be responsible accordingly. vol. II, p. 225, document A/CN.4/96, annex 3, article 1).
65 German Settlers in Poland, Advisory Opinion, 1923, P.C.I.J., 71 See footnote 34 above.
Series B, No. 6, p. 22. 72 See also article 33, paragraph 2, and commentary.
259
Annex 13
(9) Thus there is no exception to the principle stated in (13) In subparagraph (b), reference is made to the breach
article 2 that there are two necessary conditions for an of an international obligation rather than a rule or a norm
internationally wrongful act—conduct attributable to of international law. What matters for these purposes is
the State under international law and the breach by that not simply the existence of a rule but its application in the
conduct of an international obligation of the State. The specific case to the responsible State. The term “obliga-
question is whether those two necessary conditions are tion” is commonly used in international judicial decisions
also sufficient. It is sometimes said that international re- and practice and in the literature to cover all the possibili-
sponsibility is not engaged by conduct of a State in disre- ties. The reference to an “obligation” is limited to an ob-
gard of its obligations unless some further element exists, ligation under international law, a matter further clarified
in particular, “damage” to another State. But whether such in article 3.
elements are required depends on the content of the prima-
ry obligation, and there is no general rule in this respect.
Article 3. Characterization of an act of a State
For example, the obligation under a treaty to enact a uni- as internationally wrongful
form law is breached by the failure to enact the law, and
it is not necessary for another State party to point to any The characterization of an act of a State as inter-
specific damage it has suffered by reason of that failure. nationally wrongful is governed by international law.
Whether a particular obligation is breached forthwith Such characterization is not affected by the character-
upon a failure to act on the part of the responsible State, ization of the same act as lawful by internal law.
or whether some further event must occur, depends on the
content and interpretation of the primary obligation and
cannot be determined in the abstract.73 Commentary
(1) Article 3 makes explicit a principle already implicit

(10) A related question is whether fault constitutes a in article 2, namely that the characterization of a given
necessary element of the internationally wrongful act of a act as internationally wrongful is independent of its char-
State. This is certainly not the case if by “fault” one under- acterization as lawful under the internal law of the State
stands the existence, for example, of an intention to harm. concerned. There are two elements to this. First, an act of
In the absence of any specific requirement of a mental a State cannot be characterized as internationally wrong-
element in terms of the primary obligation, it is only ful unless it constitutes a breach of an international obli-
the act of a State that matters, independently of any gation, even if it violates a provision of the State’s own
intention. law. Secondly and most importantly, a State cannot, by
pleading that its conduct conforms to the provisions of its
(11) Article 2 introduces and places in the necessary internal law, escape the characterization of that conduct as
legal context the questions dealt with in subsequent wrongful by international law. An act of a State must be
characterized as internationally wrongful if it constitutes a
chapters of Part One. Subparagraph (a)—which states
breach of an international obligation, even if the act does
that conduct attributable to the State under international
not contravene the State’s internal law—even if, under
law is necessary for there to be an internationally wrong- that law, the State was actually bound to act in that way.
ful act—corresponds to chapter II, while chapter IV deals
with the specific cases where one State is responsible for
the internationally wrongful act of another State. Sub- (2) As to the first of these elements, perhaps the clear-
paragraph (b)—which states that such conduct must est judicial decision is that of PCIJ in the Treatment of
constitute a breach of an international obligation—cor- Polish Nationals case.75 The Court denied the Polish
Government the right to submit to organs of the League
responds to the general principles stated in chapter III,
of Nations questions concerning the application to Polish
while chapter V deals with cases where the wrongful-
nationals of certain provisions of the Constitution of the
ness of conduct, which would otherwise be a breach of an Free City of Danzig, on the ground that:
obligation, is precluded.
according to generally accepted principles, a State cannot rely, as
against another State, on the provisions of the latter’s Constitution, but
(12) In subparagraph (a), the term “attribution” is used only on international law and international obligations duly accepted
to denote the operation of attaching a given action or omis- ... [C]onversely, a State cannot adduce as against another State its own
Constitution with a view to evading obligations incumbent upon it un-
sion to a State. In international practice and judicial deci- der international law or treaties in force ... The application of the Danzig
sions, the term “imputation” is also used.74 But the term Constitution may ... result in the violation of an international obligation
“attribution” avoids any suggestion that the legal process incumbent on Danzig towards Poland, whether under treaty stipulations
of connecting conduct to the State is a fiction, or that the or under general international law ... However, in cases of such a nature,
it is not the Constitution and other laws, as such, but the international
conduct in question is “really” that of someone else. obligation that gives rise to the responsibility of the Free City.6
73 For examples of analysis of different obligations, see United
(3) That conformity with the provisions of internal
States Diplomatic and Consular Staff in Tehran (footnote 59 above),
pp. 30–33, paras. 62–68; “Rainbow Warrior” (footnote 46 above),
law in no way precludes conduct being characterized as
pp. 266–267, paras. 107–110; and WTO, Report of the Panel, United internationally wrongful is equally well settled. Interna-
States–Sections 301–310 of the Trade Act of 1974 (WT/DS152/R),
22 December 1999, paras. 7.41 et seq. 75 Treatment of Polish Nationals and Other Persons of Polish Ori-
See, e.g., United States Diplomatic and Consular Staff in Tehran gin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J.,
(footnote 59 above), p. 29, paras. 56 and 58; and Military and Para- Series A/B, No. 44, p. 4.
military Activities in and against Nicaragua (footnote 36 above), p. 51, 6 Ibid., pp. 24–25. See also “Lotus”, Judgment No. 9, 1927, P.C.I.J.,
para. 86. Series A, No. 10, p. 24.
260
Annex 13
tional judicial decisions leave no doubt on that subject. In international law, as a breach of treaty or otherwise. A finding of the
particular, PCIJ expressly recognized the principle in its local courts that an act was unlawful may well be relevant to an argument
that it was also arbitrary; but by itself, and without more, unlawfulness
first judgment, in the S.S. “Wimbledon” case. The Court cannot be said to amount to arbitrariness … Nor does it follow from a
rejected the argument of the German Government that the finding by a municipal court that an act was unjustified, or unreason-
passage of the ship through the Kiel Canal would have able, or arbitrary, that that act is necessarily to be classed as arbitrary in
constituted a violation of the German neutrality orders, international law, though the qualification given to the impugned act by
a municipal authority may be a valuable indication.6
observing that:
a neutrality order, issued by an individual State, could not prevail over The principle has also been applied by numerous arbitral
the provisions of the Treaty of Peace. ... under Article 380 of the Treaty tribunals.87
of Versailles, it was [Germany’s] definite duty to allow [the passage
of the Wimbledon through the Kiel Canal]. She could not advance her
neutrality orders against the obligations which she had accepted under (5) The principle was expressly endorsed in the work un-
this Article. dertaken under the auspices of the League of Nations on
the codification of State responsibility,88 as well as in the
The principle was reaffirmed many times: work undertaken under the auspices of the United Nations
it is a generally accepted principle of international law that in the rela- on the codification of the rights and duties of States and
tions between Powers who are contracting Parties to a treaty, the provi- the law of treaties. The Commission’s draft Declaration on
sions of municipal law cannot prevail over those of the treaty; Rights and Duties of States, article 13, provided that:
... it is certain that France cannot rely on her own legislation to limit the Every State has the duty to carry out in good faith its obligations aris-
scope of her international obligations;9 ing from treaties and other sources of international law, and it may not
invoke provisions in its constitution or its laws as an excuse for failure
... a State cannot adduce as against another State its own Constitution to perform this duty.9
with a view to evading obligations incumbent upon it under interna-
tional law or treaties in force.0
(6) Similarly this principle was endorsed in the 1969
A different facet of the same principle was also affirmed in Vienna Convention, article 27 of which provides that:
the advisory opinions on Exchange of Greek and Turkish
Populations1 and Jurisdiction of the Courts of Danzig. A party may not invoke the provisions of its internal law as justifica-
tion for its failure to perform a treaty. This rule is without prejudice to
(4) ICJ has often referred to and applied the principle.83 article 46.90
For example, in the Reparation for Injuries case, it noted 6 Ibid., p. 74, para. 124.
that “[a]s the claim is based on the breach of an interna- See, e.g., the Geneva Arbitration (the “Alabama” case), in Moore,
tional obligation on the part of the Member held responsi- History and Digest, vol. IV, p. 4144, at pp. 4156 and 4157 (1872);
ble … the Member cannot contend that this obligation is Norwegian Shipowners’ Claims (Norway v. United States of America),
governed by municipal law”.84 In the ELSI case, a Cham- UNRIAA, vol. I (Sales No. 1948.V.2), p. 307, at p. 331 (1922); Aguilar-
ber of the Court emphasized this rule, stating that: Amory and Royal Bank of Canada Claims (Tinoco case) (Great Britain
v. Costa Rica), ibid., p. 369, at p. 386 (1923); Shufeldt Claim, ibid.,
Compliance with municipal law and compliance with the provisions of vol. II (Sales No. 1949.V.1), p. 1079, at p. 1098 (“it is a settled principle
a treaty are different questions. What is a breach of treaty may be lawful of international law that a sovereign can not be permitted to set up one
in the municipal law and what is unlawful in the municipal law may be of his own municipal laws as a bar to a claim by a sovereign for a wrong
wholly innocent of violation of a treaty provision. Even had the Prefect done to the latter’s subject”) (1930); Wollemborg Case, ibid., vol. XIV
held the requisition to be entirely justified in Italian law, this would not (Sales No. 65.V.4), p. 283, at p. 289 (1956); and Flegenheimer, ibid.,
exclude the possibility that it was a violation of the FCN Treaty. p. 327, at p. 360 (1958).
In point I of the request for information on State responsibility sent
Conversely, as the Chamber explained: to States by the Preparatory Committee for the 1930 Hague Conference
it was stated:
the fact that an act of a public authority may have been unlawful in “In particular, a State cannot escape its responsibility under interna-
municipal law does not necessarily mean that that act was unlawful in tional law, if such responsibility exists, by appealing to the provisions
of its municipal law.”
S.S. “Wimbledon” (see footnote 34 above), pp. 29–30. In their replies, States agreed expressly or implicitly with this prin-
78 Greco-Bulgarian “Communities”, Advisory Opinion, 1930, ciple (see League of Nations, Conference for the Codification of
P.C.I.J., Series B, No. 17, p. 32. International Law, Bases of Discussion for the Conference drawn up
79 Free Zones of Upper Savoy and the District of Gex, Order of by the Preparatory Committee, vol. III: Responsibility of States for
6 December 1930, P.C.I.J., Series A, No. 24, p. 12; and ibid., Judgment, Damage caused in their Territory to the Person or Property of Foreigners
1932, P.C.I.J., Series A/B, No. 46, p. 96, at p. 167. (document C.75.M.69.1929.V), p. 16). During the debate at the 1930
0 Treatment of Polish Nationals (see footnote 75 above), p. 24. Hague Conference, States expressed general approval of the idea em-
1 Exchange of Greek and Turkish Populations, Advisory Opinion, bodied in point I and the Third Committee of the Conference adopted
article to the effect that “A State cannot avoid international responsi-
1925, P.C.I.J., Series B, No. 10, p. 20.
Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928,
bility by invoking the state of its municipal law” (document C.1(c)
M.1(c).190.V; reproduced in Yearbook ... 1956, vol. II, p. ,
P.C.I.J., Series B, No. 15, pp. 26–27. See also the observations of document A/CN./96, annex ).
Lord Finlay in Acquisition of Polish Nationality, Advisory Opinion, 89 See General Assembly resolution 375 (IV) of 6 December 1949,
1923, P.C.I.J., Series B, No. 7, p. 26. annex. For the debate in the Commission, see Yearbook ... 1949,
See Fisheries, Judgment, I.C.J. Reports 1951, p. 116, at p. 132;
pp. 105–106, 150 and 171. For the debate in the Assembly, see Official
Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports 1953, Records of the General Assembly, Fourth Session, Sixth Committee,
p. 111, at p. 123; Application of the Convention of 1902 Governing the 168th–173rd meetings, 18–25 October 1949; 175th–183rd meetings,
Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 55, at p. 67; 27 October–3 November 1949; and ibid., Fourth Session, Plenary
and Applicability of the Obligation to Arbitrate under Section 21 of Meetings, 270th meeting, 6 December 1949.
the United Nations Headquarters Agreement of 26 June 1947, Advisory 90 Article 46 of the Convention provides for the invocation of pro-
Opinion, I.C.J. Reports 1988, p. 12, at pp. 34–35, para. 57. visions of internal law regarding competence to conclude treaties in
Reparation for Injuries (see footnote 38 above), at p. 180.
limited circumstances, viz., where the violation of such provisions
Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, “was manifest and concerned a rule of … internal law of fundamental
p. 15, at p. 51, para. 73. importance”.
261
Annex 13
(7) The rule that the characterization of conduct as Chapter ii

unlawful in international law cannot be affected by the
characterization of the same act as lawful in internal law attributiOn Of COnduCt tO a state
makes no exception for cases where rules of international
law require a State to conform to the provisions of its in- Commentary
ternal law, for instance by applying to aliens the same le-
gal treatment as to nationals. It is true that in such a case, (1) In accordance with article 2, one of the essential con-
compliance with internal law is relevant to the question of ditions for the international responsibility of a State is that
international responsibility. But this is because the rule of the conduct in question is attributable to the State under
international law makes it relevant, e.g. by incorporating international law. Chapter II defines the circumstances in
the standard of compliance with internal law as the appli- which such attribution is justified, i.e. when conduct con-
cable international standard or as an aspect of it. Especial- sisting of an act or omission or a series of acts or omis-
ly in the fields of injury to aliens and their property and sions is to be considered as the conduct of the State.
of human rights, the content and application of internal
law will often be relevant to the question of international (2) In theory, the conduct of all human beings, corpora-
responsibility. In every case it will be seen on analysis that tions or collectivities linked to the State by nationality,
either the provisions of internal law are relevant as facts in habitual residence or incorporation might be attributed
applying the applicable international standard, or else that to the State, whether or not they have any connection to
they are actually incorporated in some form, conditionally the Government. In international law, such an approach
or unconditionally, into that standard. is avoided, both with a view to limiting responsibility to
conduct which engages the State as an organization, and
(8) As regards the wording of the rule, the formulation also so as to recognize the autonomy of persons acting on
“The municipal law of a State cannot be invoked to prevent their own account and not at the instigation of a public
an act of that State from being characterized as wrongful authority. Thus, the general rule is that the only conduct
in international law”, which is similar to article 5 of the attributed to the State at the international level is that of its
draft adopted on first reading at the 1930 Hague Confer- organs of government, or of others who have acted under
ence and also to article 27 of the 1969 Vienna Convention, the direction, instigation or control of those organs, i.e. as
has the merit of making it clear that States cannot use their agents of the State.92
internal law as a means of escaping international respon-
sibility. On the other hand, such a formulation sounds like (3) As a corollary, the conduct of private persons is not
a rule of procedure and is inappropriate for a statement as such attributable to the State. This was established, for
of principle. Issues of the invocation of responsibility be- example, in the Tellini case of 1923. The Council of the
long to Part Three, whereas this principle addresses the League of Nations referred to a Special Commission of
underlying question of the origin of responsibility. In ad- Jurists certain questions arising from an incident between
dition, there are many cases where issues of internal law Italy and Greece.93 This involved the assassination on
are relevant to the existence or otherwise of responsibil- Greek territory of the Chairman and several members of
ity. As already noted, in such cases it is international law an international commission entrusted with the task of de-
which determines the scope and limits of any reference to limiting the Greek-Albanian border. In reply to question
internal law. This element is best reflected by saying, first, five, the Commission stated that:
that the characterization of State conduct as internationally
wrongful is governed by international law, and secondly by The responsibility of a State is only involved by the commission in its
affirming that conduct which is characterized as wrongful territory of a political crime against the persons of foreigners if the State
has neglected to take all reasonable measures for the prevention of the
under international law cannot be excused by reference to crime and the pursuit, arrest and bringing to justice of the criminal.9
the legality of that conduct under internal law.
(4) The attribution of conduct to the State as a subject
(9) As to terminology, in the English version the term of international law is based on criteria determined by in-
“internal law” is preferred to “municipal law”, because ternational law and not on the mere recognition of a link
the latter is sometimes used in a narrower sense, and be- 9 See, e.g., I. Brownlie, System of the Law of Nations: State
cause the 1969 Vienna Convention speaks of “internal Responsibility, Part I (Oxford, Clarendon Press, 1983), pp. 132–
law”. Still less would it be appropriate to use the term 166; D. D. Caron, “The basis of responsibility: attribution and other
“national law”, which in some legal systems refers only to trans-substantive rules”, The Iran-United States Claims Tribunal: Its
the laws emanating from the central legislature, as distinct Contribution to the Law of State Responsibility, R. B. Lillich and
from provincial, cantonal or local authorities. The princi- D. B. Magraw, eds. (Irvington-on-Hudson, N.Y., Transnational, 1998),
p. 109; L. Condorelli, “L’imputation à l’État d’un fait internationale-
ple in article 3 applies to all laws and regulations adopted ment illicite : solutions classiques et nouvelles tendances”, Recueil
within the framework of the State, by whatever authority des cours…, 1984–VI (Dordrecht, Martinus Nijhoff, 1988), vol. 189,
and at whatever level.91 In the French version the expres- p. 9; H. Dipla, La responsabilité de l’État pour violation des
sion droit interne is preferred to législation interne and droits de l’homme: problèmes d’imputation (Paris, Pedone, 1994);
A. V. Freeman, “Responsibility of States for unlawful acts of their
loi interne, because it covers all provisions of the inter- armed forces”, Recueil des cours…, 1955–II (Leiden, Sijthoff, 1956),
nal legal order, whether written or unwritten and whether vol. 88, p. 261; and F. Przetacznik, “The international responsibility of
they take the form of constitutional or legislative rules, States for the unauthorized acts of their organs”, Sri Lanka Journal of
administrative decrees or judicial decisions. International Law, vol. 1 (June 1989), p. 151.
9 League of Nations, Official Journal, 4th Year, No. 11 (November
91 Cf. LaGrand (Germany v. United States of America), Provisional 1923), p. 1349.
Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 9, at p. 16, 9 Ibid., 5th Year, No. 4 (April 1924), p. 524. See also the Janes case,
para. 28. UNRIAA, vol. IV (Sales No. 1951.V.1), p. 82 (1925).
262
Annex 13
of factual causality. As a normative operation, attribution attributed to the State under international law, whatever
must be clearly distinguished from the characterization the position may be under internal law.99
of conduct as internationally wrongful. Its concern is to
establish that there is an act of the State for the purposes
of responsibility. To show that conduct is attributable to (7) The purpose of this chapter is to specify the condi-
the State says nothing, as such, about the legality or oth- tions under which conduct is attributed to the State as a
erwise of that conduct, and rules of attribution should not subject of international law for the purposes of determin-
be formulated in terms which imply otherwise. But the ing its international responsibility. Conduct is thereby at-
different rules of attribution stated in chapter II have a tributed to the State as a subject of international law and
cumulative effect, such that a State may be responsible not as a subject of internal law. In internal law, it is com-
for the effects of the conduct of private parties, if it failed mon for the “State” to be subdivided into a series of dis-
to take necessary measures to prevent those effects. For tinct legal entities. For example, ministries, departments,
example, a receiving State is not responsible, as such, for component units of all kinds, State commissions or corpo-
the acts of private individuals in seizing an embassy, but rations may have separate legal personality under internal
it will be responsible if it fails to take all necessary steps law, with separate accounts and separate liabilities. But
to protect the embassy from seizure, or to regain control international law does not permit a State to escape its in-
over it.95 In this respect there is often a close link between ternational responsibilities by a mere process of internal
the basis of attribution and the particular obligation said subdivision. The State as a subject of international law is
to have been breached, even though the two elements are held responsible for the conduct of all the organs, instru-
analytically distinct. mentalities and officials which form part of its organi-
zation and act in that capacity, whether or not they have
separate legal personality under its internal law.
(5) The question of attribution of conduct to the State for
the purposes of responsibility is to be distinguished from
other international law processes by which particular or- (8) Chapter II consists of eight articles. Article 4 states
gans are authorized to enter into commitments on behalf the basic rule attributing to the State the conduct of its
of the State. Thus the Head of State or Government or the organs. Article 5 deals with conduct of entities empow-
minister of foreign affairs is regarded as having authority ered to exercise the governmental authority of a State, and
to represent the State without any need to produce full article 6 deals with the special case where an organ of
powers.96 Such rules have nothing to do with attribution one State is placed at the disposal of another State and
for the purposes of State responsibility. In principle, the empowered to exercise the governmental authority of that
State’s responsibility is engaged by conduct incompatible State. Article 7 makes it clear that the conduct of organs
with its international obligations, irrespective of the level or entities empowered to exercise governmental author-
of administration or government at which the conduct oc- ity is attributable to the State even if it was carried out
curs.97 Thus, the rules concerning attribution set out in outside the authority of the organ or person concerned or
this chapter are formulated for this particular purpose, contrary to instructions. Articles 8 to 11 then deal with
and not for other purposes for which it may be necessary certain additional cases where conduct, not that of a State
to define the State or its Government. organ or entity, is nonetheless attributed to the State in
international law. Article 8 deals with conduct carried out
(6) In determining what constitutes an organ of a State on the instructions of a State organ or under its direction
for the purposes of responsibility, the internal law and or control. Article 9 deals with certain conduct involving
practice of each State are of prime importance. The struc- elements of governmental authority, carried out in the ab-
ture of the State and the functions of its organs are not, sence of the official authorities. Article 10 concerns the
in general, governed by international law. It is a matter special case of responsibility in defined circumstances for
for each State to decide how its administration is to be the conduct of insurrectional movements. Article 11 deals
structured and which functions are to be assumed by gov- with conduct not attributable to the State under one of the
ernment. But while the State remains free to determine its earlier articles which is nonetheless adopted by the State,
internal structure and functions through its own law and expressly or by conduct, as its own.
practice, international law has a distinct role. For exam-
ple, the conduct of certain institutions performing public (9) These rules are cumulative but they are also limita-
functions and exercising public powers (e.g. the police) is tive. In the absence of a specific undertaking or guarantee
attributed to the State even if those institutions are regard- (which would be a lex specialis100), a State is not respon-
ed in internal law as autonomous and independent of the sible for the conduct of persons or entities in circumstanc-
executive government.98 Conduct engaged in by organs es not covered by this chapter. As the Iran-United States
of the State in excess of their competence may also be Claims Tribunal has affirmed, “in order to attribute an act
9 See United States Diplomatic and Consular Staff in Tehran to the State, it is necessary to identify with reasonable
(footnote 59 above). certainty the actors and their association with the State”.101
96 See articles 7, 8, 46 and 47 of the 1969 Vienna Convention. This follows already from the provisions of article 2.
9 The point was emphasized, in the context of federal States, in
99 See article 7 and commentary.
LaGrand (see footnote 91 above). It is not of course limited to federal
States. See further article 5 and commentary. 100 See article 55 and commentary.
9 See paragraph (11) of the commentary to article 4; see also ar- 101 Kenneth P. Yeager v. The Islamic Republic of Iran, Iran-U.S.
ticle 5 and commentary. C.T.R., vol. 17 , p. 92, at pp. 101–102 (1987).
263
Annex 13
Article 4. Conduct of organs of a State failure on the part of its organs to carry out the interna-
tional obligations of the State”.105
1. The conduct of any State organ shall be con-
sidered an act of that State under international law, (5) The principle of the unity of the State entails that the
whether the organ exercises legislative, executive, judi- acts or omissions of all its organs should be regarded as
cial or any other functions, whatever position it holds acts or omissions of the State for the purposes of interna-
in the organization of the State, and whatever its char- tional responsibility. It goes without saying that there is
acter as an organ of the central Government or of a no category of organs specially designated for the com-
territorial unit of the State. mission of internationally wrongful acts, and virtually any
State organ may be the author of such an act. The diversity
2. An organ includes any person or entity which of international obligations does not permit any general
has that status in accordance with the internal law of distinction between organs which can commit interna-
the State. tionally wrongful acts and those which cannot. This is re-
flected in the closing words of paragraph 1, which clearly
Commentary reflect the rule of international law in the matter.
(1) Paragraph 1 of article 4 states the first principle of (6) Thus, the reference to a State organ in article 4 is in-
attribution for the purposes of State responsibility in intended in the most general sense. It is not limited to the or-
ternational law—that the conduct of an organ of the State gans of the central government, to officials at a high level
is attributable to that State. The reference to a “State or- or to persons with responsibility for the external relations
gan” covers all the individual or collective entities which of the State. It extends to organs of government of what-
make up the organization of the State and act on its behalf. ever kind or classification, exercising whatever functions,
It includes an organ of any territorial governmental entity and at whatever level in the hierarchy, including those at
within the State on the same basis as the central govern- provincial or even local level. No distinction is made for
mental organs of that State: this is made clear by the final this purpose between legislative, executive or judicial or-
phrase. gans. Thus, in the Salvador Commercial Company case,
the tribunal said that:
(2) Certain acts of individuals or entities which do not a State is responsible for the acts of its rulers, whether they belong to
have the status of organs of the State may be attributed to the legislative, executive, or judicial department of the Government, so
the State in international law, and these cases are dealt with far as the acts are done in their official capacity.106
in later articles of this chapter. But the rule is nonetheless
a point of departure. It defines the core cases of attribu- ICJ has also confirmed the rule in categorical terms. In
tion, and it is a starting point for other cases. For example, Difference Relating to Immunity from Legal Process of a
under article 8 conduct which is authorized by the State, Special Rapporteur of the Commission on Human Rights,
so as to be attributable to it, must have been authorized by it said:
an organ of the State, either directly or indirectly.
According to a well-established rule of international law, the conduct of
any organ of a State must be regarded as an act of that State. This rule
(3) That the State is responsible for the conduct of its … is of a customary character.10
own organs, acting in that capacity, has long been rec-
ognized in international judicial decisions. In the Moses In that case the Court was principally concerned with
case, for example, a decision of a Mexico-United States decisions of State courts, but the same principle applies to
Mixed Claims Commission, Umpire Lieber said: “An legislative and executive acts.108 As PCIJ said in Certain
officer or person in authority represents pro tanto his gov- German Interests in Polish Upper Silesia (Merits):
ernment, which in an international sense is the aggregate 10 Reproduced in Yearbook ... 1956, vol. II, p. 225, document
of all officers and men in authority.”102 There have been A/CN.4/96, annex 3.
many statements of the principle since then.103 106 See Salvador Commercial Company (footnote 103 above).
See also Chattin case, UNRIAA, vol. IV (Sales No. 1951.V.1), p. 282,
(4) The replies by Governments to the Preparatory Com- at pp. 285–286 (1927); and Dispute concerning the interpretation of
article 79 of the Treaty of Peace, ibid., vol. XIII (Sales No. 64.V.3),
mittee for the 1930 Hague Conference104 were unani- p. 389, at p. 438 (1955).
mously of the view that the actions or omissions of organs 10 Difference Relating to Immunity from Legal Process of a
of the State must be attributed to it. The Third Committee Special Rapporteur of the Commission on Human Rights (see footnote
of the Conference adopted unanimously on first reading 56 above), p. 87, para. 62, referring to the draft articles on State respon-
an article 1, which provided that international responsibil- sibility, article 6, now embodied in article 4.
10 As to legislative acts, see, e.g., German Settlers in Poland
ity shall be incurred by a State as a consequence of “any
(footnote 65 above), at pp. 35–36; Treatment of Polish Nationals (footnote
10 Moore, 75 above), at pp. 24–25; Phosphates in Morocco (footnote 34 above),
History and Digest, vol. III, p. 3127, at p. 3129 (1871).
10 See,
at pp. 25–26; and Rights of Nationals of the United States of America
e.g., Claims of Italian Nationals (footnote 41 above); in Morocco, Judgment, I.C.J. Reports 1952, p. 176, at pp. 193–194.
Salvador Commercial Company, UNRIAA, vol. XV (Sales No. 66.V.3), As to executive acts, see, e.g., Military and Paramilitary Activities in
p. 455, at p. 477 (1902); and Finnish Shipowners (Great Britain/Fin- and against Nicaragua (footnote 36 above); and ELSI (footnote 85
land), ibid., vol. III (Sales No. 1949.V.2), p. 1479, at p. 1501 (1934). above). As to judicial acts, see, e.g., “Lotus” (footnote 76 above);
10 League of Nations, Conference for the Codification of Interna- Jurisdiction of the Courts of Danzig (footnote 82 above); and Ambatie-
tional Law, Bases of Discussion … (see footnote 88 above), pp. 25, 41 los, Merits, Judgment, I.C.J. Reports 1953, p. 10, at pp. 21–22. In some
and 52; Supplement to Volume III: Replies made by the Governments cases, the conduct in question may involve both executive and judicial
to the Schedule of Points; Replies of Canada and the United States of acts; see, e.g., Application of the Convention of 1902 (footnote 83 above)
America (document C.75(a)M.69(a).1929.V), pp. 2–3 and 6. at p. 65.
264
Annex 13
From the standpoint of International Law and of the Court which is its (8) Likewise, the principle in article 4 applies equally to
organ, municipal laws ... express the will and constitute the activities organs of the central government and to those of regional
of States, in the same manner as do legal decisions or administrative
measures.109
or local units. This principle has long been recognized.
For example, the Franco-Italian Conciliation Commission
in the Heirs of the Duc de Guise case said:
Thus, article 4 covers organs, whether they exercise
“legislative, executive, judicial or any other functions”. For the purposes of reaching a decision in the present case it matters
little that the decree of 29 August 1947 was not enacted by the Italian
This language allows for the fact that the principle of the State but by the region of Sicily. For the Italian State is responsible
separation of powers is not followed in any uniform way, for implementing the Peace Treaty, even for Sicily, notwithstanding the
and that many organs exercise some combination of pub- autonomy granted to Sicily in internal relations under the public law of
lic powers of a legislative, executive or judicial character. the Italian Republic.11
Moreover, the term is one of extension, not limitation, This principle was strongly supported during the prepara-
as is made clear by the words “or any other functions”.110 tory work for the 1930 Hague Conference. Governments
It is irrelevant for the purposes of attribution that the con- were expressly asked whether the State became respon-
duct of a State organ may be classified as “commercial” sible as a result of “[a]cts or omissions of bodies exer-
or as acta iure gestionis. Of course, the breach by a State cising public functions of a legislative or executive char-
of a contract does not as such entail a breach of interna- acter (communes, provinces, etc.)”. All answered in the
tional law.111 Something further is required before inter- affirmative.116
national law becomes relevant, such as a denial of justice
by the courts of the State in proceedings brought by the (9) It does not matter for this purpose whether the terri-
other contracting party. But the entry into or breach of a torial unit in question is a component unit of a federal State
contract by a State organ is nonetheless an act of the State or a specific autonomous area, and it is equally irrelevant
for the purposes of article 4,112 and it might in certain cir- whether the internal law of the State in question gives the
cumstances amount to an internationally wrongful act.113 federal parliament power to compel the component unit to
abide by the State’s international obligations. The award
in the “Montijo” case is the starting point for a consistent
(7) Nor is any distinction made at the level of princi- series of decisions to this effect.117 The French-Mexican
ple between the acts of “superior” and “subordinate” of- Claims Commission in the Pellat case reaffirmed “the
ficials, provided they are acting in their official capacity. principle of the international responsibility ... of a fed-
This is expressed in the phrase “whatever position it holds eral State for all the acts of its separate States which give
in the organization of the State” in article 4. No doubt rise to claims by foreign States” and noted specially that
lower-level officials may have a more restricted scope of such responsibility “... cannot be denied, not even in cases
activity and they may not be able to make final decisions. where the federal Constitution denies the central Govern-
But conduct carried out by them in their official capacity ment the right of control over the separate States or the
is nonetheless attributable to the State for the purposes of right to require them to comply, in their conduct, with the
article 4. Mixed commissions after the Second World War rules of international law”.118 That rule has since been
often had to consider the conduct of minor organs of the consistently applied. Thus, for example, in the LaGrand
State, such as administrators of enemy property, mayors case, ICJ said:
and police officers, and consistently treated the acts of Whereas the international responsibility of a State is engaged by the ac-
such persons as attributable to the State.114 tion of the competent organs and authorities acting in that State, what-
ever they may be; whereas the United States should take all measures at
109 Certain German Interests in Polish Upper Silesia, Merits, Judg- its disposal to ensure that Walter LaGrand is not executed pending the
ment No. 7, 1926, P.C.I.J., Series A, No. 7, at p. 19. final decision in these proceedings; whereas, according to the informa-
110 These functions might involve, e.g. the giving of administrative tion available to the Court, implementation of the measures indicated
guidance to the private sector. Whether such guidance involves a breach in the present Order falls within the jurisdiction of the Governor of
of an international obligation may be an issue, but as “guidance” it is Arizona; whereas the Government of the United States is consequently
clearly attributable to the State. See, e.g., GATT, Report of the Panel, under the obligation to transmit the present Order to the said Governor;
Japan–Trade in Semi-conductors, 24 March 1988, paras. 110–111; whereas the Governor of Arizona is under the obligation to act in con-
and WTO, Report of the Panel, Japan–Measures affecting Consumer formity with the international undertakings of the United States.119
Photographic Film and Paper (WT/DS44/R), paras. 10.12–10.16.
111 See article 3 and commentary. 11 UNRIAA, vol. XIII (Sales No. 64.V.3), p. 150, at p. 161 (1951).
11 See, e.g., the decisions of the European Court of Human Rights For earlier decisions, see, e.g., the Pieri Dominique and Co. case, ibid.,
vol. X (Sales No. 60.V.4), p. 139, at p. 156 (1905).
in Swedish Engine Drivers’ Union v. Sweden, Eur. Court H.R., Series 116 League of Nations, Conference for the Codification of Interna-
A, No. 20 (1976), at p. 14; and Schmidt and Dahlström v. Sweden, ibid.,
Series A, No. 21 (1976), at p. 15. tional Law, Bases of Discussion … (see footnote 104 above), p. 90;
11 The irrelevance of the classification of the acts of State organs Supplement to Vol. III … (ibid.), pp. 3 and 18.
11 See Moore, History and Digest, vol. II, p. 1440, at p. 1440
as iure imperii or iure gestionis was affirmed by all those members of
the Sixth Committee who responded to a specific question on this issue (1874). See also De Brissot and others, Moore, History and Digest,
from the Commission (see Yearbook ... 1998, vol. II (Part Two), p. 17, vol. III, p. 2967, at pp. 2970–2971 (1855); Pieri Dominique and Co.
para. 35). (footnote 115 above), at pp. 156–157; Davy case, UNRIAA, vol. IX
11 See, e.g., the Currie case, UNRIAA, vol. XIV (Sales No. (Sales No. 59.V.5), p. 467, at p. 468 (1903); Janes case (footnote 94
65.V.4), p. 21, at p. 24 (1954); Dispute concerning the interpretation above); Swinney, UNRIAA, vol. IV (Sales No. 1951.V.1), p. 101 (1925);
of article 79 (footnote 106 above), at pp. 431–432; and Mossé case, Quintanilla, ibid., p. 101, at p. 103 (1925); Youmans, ibid., p. 110,
UNRIAA, vol. XIII (Sales No. 64.V.3), p. 486, at pp. 492–493 (1953). at p. 116 (1925); Mallén, ibid., p. 173, at p. 177 (1927); Venable, ibid.,
For earlier decisions, see the Roper case, ibid., vol. IV (Sales No. 1951. p. 218, at p. 230 (1925); and Tribolet, ibid., p. 598, at p. 601 (1925).
11 UNRIAA, vol. V (Sales No. 1952.V.3), p. 534, at p. 536 (1929).
V.1), p. 145 (1927); Massey, ibid., p. 155 (1927); Way, ibid., p. 391, at
p. 400 (1928); and Baldwin, ibid., vol. VI (Sales No. 1955.V.3), p. 328 119 LaGrand, Provisional Measures (see footnote 91 above).
(1933). Cf. the consideration of the requisition of a plant by the Mayor See also LaGrand (Germany v. United States of America), Judgment,
of Palermo in ELSI (see footnote 85 above), e.g. at p. 50, para. 70. I.C.J.Reports 2001, p. 466, at p. 495, para. 81.
265
Annex 13
(10) The reasons for this position are reinforced by the on jurisdictional immunities of States and their property,
fact that federal States vary widely in their structure and adopted in 1991.
distribution of powers, and that in most cases the constitu-
ent units have no separate international legal personality (13) Although the principle stated in article 4 is clear
of their own (however limited), nor any treaty-making and undoubted, difficulties can arise in its application.
power. In those cases where the constituent unit of a fed- A particular problem is to determine whether a person
eration is able to enter into international agreements on its who is a State organ acts in that capacity. It is irrelevant
own account,120 the other party may well have agreed to for this purpose that the person concerned may have had
limit itself to recourse against the constituent unit in the ulterior or improper motives or may be abusing pub-
event of a breach. In that case the matter will not involve lic power. Where such a person acts in an apparently
the responsibility of the federal State and will fall outside official capacity, or under colour of authority, the actions
the scope of the present articles. Another possibility is that in question will be attributable to the State. The distinc-
the responsibility of the federal State under a treaty may tion between unauthorized conduct of a State organ and
be limited by the terms of a federal clause in the treaty.121 purely private conduct has been clearly drawn in inter-
This is clearly an exception to the general rule, applicable national arbitral decisions. For example, the award of the
solely in relations between the States parties to the treaty Mexico-United States General Claims Commission in the
and in the matters which the treaty covers. It has effect Mallén case involved, first, the act of an official acting in
by virtue of the lex specialis principle, dealt with in ar- a private capacity and, secondly, another act committed
ticle 55. by the same official in his official capacity, although in an
abusive way.124 The latter action was, and the former was
(11) Paragraph 2 explains the relevance of internal law not, held attributable to the State. The French-Mexican
in determining the status of a State organ. Where the law Claims Commission in the Caire case excluded responsi-
of a State characterizes an entity as an organ, no difficulty bility only in cases where “the act had no connexion with
will arise. On the other hand, it is not sufficient to refer to the official function and was, in fact, merely the act of a
internal law for the status of State organs. In some systems private individual”.125 The case of purely private conduct
the status and functions of various entities are determined should not be confused with that of an organ functioning
not only by law but also by practice, and reference ex- as such but acting ultra vires or in breach of the rules
clusively to internal law would be misleading. The inter- governing its operation. In this latter case, the organ is
nal law of a State may not classify, exhaustively or at all, nevertheless acting in the name of the State: this principle
which entities have the status of “organs”. In such cases, is affirmed in article 7.126 In applying this test, of course,
while the powers of an entity and its relation to other bod- each case will have to be dealt with on the basis of its own
ies under internal law will be relevant to its classification facts and circumstances.
as an “organ”, internal law will not itself perform the task
of classification. Even if it does so, the term “organ” used
in internal law may have a special meaning, and not the Article 5. Conduct of persons or entities exercising
very broad meaning it has under article 4. For example, elements of governmental authority
under some legal systems the term “government” refers
only to bodies at the highest level such as the Head of The conduct of a person or entity which is not an
State and the cabinet of ministers. In others, the police organ of the State under article but which is empow-
have a special status, independent of the executive; this ered by the law of that State to exercise elements of
cannot mean that for international law purposes they are the governmental authority shall be considered an act
not organs of the State.122 Accordingly, a State cannot of the State under international law, provided the per-
avoid responsibility for the conduct of a body which does son or entity is acting in that capacity in the particular
in truth act as one of its organs merely by denying it that instance.
status under its own law. This result is achieved by the use
of the word “includes” in paragraph 2.
Commentary
(12) The term “person or entity” is used in article 4,
(1) Article 5 deals with the attribution to the State of
paragraph 2, as well as in articles 5 and 7. It is used in a
conduct of bodies which are not State organs in the sense
broad sense to include any natural or legal person, includ-
of article 4, but which are nonetheless authorized to
ing an individual office holder, a department, commission
exercise governmental authority. The article is intended
or other body exercising public authority, etc. The term to take account of the increasingly common phenomenon
“entity” is used in a similar sense123 in the draft articles of parastatal entities, which exercise elements of gov-
10 See, e.g., articles 56, paragraph 3, and 172, paragraph 3, of the ernmental authority in place of State organs, as well as
Constitution of the Swiss Confederation of 18 April 1999. situations where former State corporations have been pri-
11 See, e.g., article 34 of the Convention for the Protection of the vatized but retain certain public or regulatory functions.
World Cultural and Natural Heritage.
1 See, e.g., the Church of Scientology case, Germany, Federal Su- 1 Mallén (see footnote 117 above), at p. 175.
preme Court, Judgment of 26 September 1978, case No. VI ZR 267/76, 1 UNRIAA, vol. V (Sales No. 1952.V.3), p. 516, at p. 531 (1929).
Neue Juristische Wochenschrift, No. 21 (May 1979), p. 1101; ILR, See also the Bensley case in Moore, History and Digest, vol. III, p. 3018
vol. 65, p. 193; and Propend Finance Pty Ltd. v. Sing, England, Court of (1850) (“a wanton trespass … under no color of official proceedings,
Appeal, ILR, vol. 111, p. 611 (1997). These were State immunity cases, and without any connection with his official duties”); and the Castelain
but the same principle applies in the field of State responsibility. case ibid., p. 2999 (1880). See further article 7 and commentary.
1 See Yearbook … 1991, vol. II (Part Two), pp. 14–18. 16 See paragraph (7) of the commentary to article 7.
266
Annex 13
(2) The generic term “entity” reflects the wide variety tee of the Conference was unable in the time available to
of bodies which, though not organs, may be empowered examine it:
by the law of a State to exercise elements of governmental
authority. They may include public corporations, semi- A State is responsible for damage suffered by a foreigner as the result of
acts or omissions of such … autonomous institutions as exercise public
public entities, public agencies of various kinds and even, functions of a legislative or administrative character, if such acts or
in special cases, private companies, provided that in each omissions contravene the international obligations of the State.19
case the entity is empowered by the law of the State to
exercise functions of a public character normally exer- (5) The justification for attributing to the State under in-
cised by State organs, and the conduct of the entity relates ternational law the conduct of “parastatal” entities lies in
to the exercise of the governmental authority concerned. the fact that the internal law of the State has conferred on
For example, in some countries private security firms may the entity in question the exercise of certain elements of
be contracted to act as prison guards and in that capacity the governmental authority. If it is to be regarded as an act
may exercise public powers such as powers of detention of the State for purposes of international responsibility,
and discipline pursuant to a judicial sentence or to pris- the conduct of an entity must accordingly concern govern-
on regulations. Private or State-owned airlines may have mental activity and not other private or commercial activ-
delegated to them certain powers in relation to immigration ity in which the entity may engage. Thus, for example,
control or quarantine. In one case before the Iran-United the conduct of a railway company to which certain police
States Claims Tribunal, an autonomous foundation estab- powers have been granted will be regarded as an act of the
lished by the State held property for charitable purposes State under international law if it concerns the exercise of
under close governmental control; its powers included the those powers, but not if it concerns other activities (e.g.
identification of property for seizure. It was held that it the sale of tickets or the purchase of rolling stock).
was a public and not a private entity, and therefore within
the tribunal’s jurisdiction; with respect to its administra- (6) Article 5 does not attempt to identify precisely the
tion of allegedly expropriated property, it would in any scope of “governmental authority” for the purpose of at-
event have been covered by article 5.127 tribution of the conduct of an entity to the State. Beyond
a certain limit, what is regarded as “governmental” de-
(3) The fact that an entity can be classified as public or pends on the particular society, its history and traditions.
private according to the criteria of a given legal system, Of particular importance will be not just the content of the
the existence of a greater or lesser State participation in its powers, but the way they are conferred on an entity, the
capital, or, more generally, in the ownership of its assets, purposes for which they are to be exercised and the extent
the fact that it is not subject to executive control—these to which the entity is accountable to government for their
are not decisive criteria for the purpose of attribution of exercise. These are essentially questions of the application
the entity’s conduct to the State. Instead, article 5 refers of a general standard to varied circumstances.
to the true common feature, namely that these entities
are empowered, if only to a limited extent or in a specific (7) The formulation of article 5 clearly limits it to en-
context, to exercise specified elements of governmental tities which are empowered by internal law to exercise
authority. governmental authority. This is to be distinguished from
situations where an entity acts under the direction or
(4) Parastatal entities may be considered a relatively control of the State, which are covered by article 8, and
modern phenomenon, but the principle embodied in ar- those where an entity or group seizes power in the absence
ticle 5 has been recognized for some time. For example, of State organs but in situations where the exercise of
the replies to the request for information made by the governmental authority is called for: these are dealt with
Preparatory Committee for the 1930 Hague Conference in article 9. For the purposes of article 5, an entity is
indicated strong support from some Governments for the covered even if its exercise of authority involves an in-
attribution to the State of the conduct of autonomous bod- dependent discretion or power to act; there is no need to
ies exercising public functions of an administrative or leg- show that the conduct was in fact carried out under the
islative character. The German Government, for example, control of the State. On the other hand, article 5 does not
asserted that: extend to cover, for example, situations where internal
when, by delegation of powers, bodies act in a public capacity, e.g., law authorizes or justifies certain conduct by way of self-
police an area … the principles governing the responsibility of the State help or self-defence; i.e. where it confers powers upon
for its organs apply with equal force. From the point of view of inter- or authorizes conduct by citizens or residents generally.
national law, it does not matter whether a State polices a given area The internal law in question must specifically authorize
with its own police or entrusts this duty, to a greater or less extent, to
autonomous bodies.1
the conduct as involving the exercise of public author-
ity; it is not enough that it permits activity as part of the
The Preparatory Committee accordingly prepared the general regulation of the affairs of the community.
following basis of discussion, though the Third Commit- It is accordingly a narrow category.
1 Hyatt International Corporation v. The Government of the Is-
lamic Republic of Iran, Iran-U.S. C.T.R., vol. 9, p. 72, at pp. 88–94 Article 6. Conduct of organs placed at the disposal
(1985). of a State by another State
1 League of Nations, Conference for the Codification of Inter-
national Law, Bases of Discussion … (see footnote 88 above), p. 90. The conduct of an organ placed at the disposal of
The German Government noted that these remarks would extend to the
situation where “the State, as an exceptional measure, invests private
a State by another State shall be considered an act of
organisations with public powers and duties or authorities [sic] them the former State under international law if the organ is
to exercise sovereign rights, as in the case of private railway companies
permitted to maintain a police force”, ibid. 19 Ibid., p. 92.
267
Annex 13
Report of the International Law Commission on the work of its fifty-third session
acting in the exercise of elements of the governmental ing State. The notion of an organ “placed at the disposal”
authority of the State at whose disposal it is placed. of another State excludes the case of State organs, sent
to another State for the purposes of the former State or
even for shared purposes, which retain their own autono-
Commentary my and status: for example, cultural missions, diplomatic
or consular missions, foreign relief or aid organizations.
(1) Article 6 deals with the limited and precise situation Also excluded from the ambit of article 6 are situations in
in which an organ of a State is effectively put at the dis- which functions of the “beneficiary” State are performed
posal of another State so that the organ may temporarily without its consent, as when a State placed in a position
act for its benefit and under its authority. In such a case, of dependence, territorial occupation or the like is com-
the organ, originally that of one State, acts exclusively for pelled to allow the acts of its own organs to be set aside
the purposes of and on behalf of another State and its con- and replaced to a greater or lesser extent by those of the
duct is attributed to the latter State alone. other State.132
(2) The words “placed at the disposal of ” in article 6 (5) There are two further criteria that must be met for
express the essential condition that must be met in order article 6 to apply. First, the organ in question must possess
for the conduct of the organ to be regarded under interna- the status of an organ of the sending State; and secondly
tional law as an act of the receiving and not of the sending its conduct must involve the exercise of elements of the
State. The notion of an organ “placed at the disposal of ” governmental authority of the receiving State. The first
the receiving State is a specialized one, implying that the of these conditions excludes from the ambit of article 6
organ is acting with the consent, under the authority of the conduct of private entities or individuals which have
and for the purposes of the receiving State. Not only must never had the status of an organ of the sending State. For
the organ be appointed to perform functions appertaining example, experts or advisers placed at the disposal of a
to the State at whose disposal it is placed, but in perform- State under technical assistance programmes do not usu-
ing the functions entrusted to it by the beneficiary State, ally have the status of organs of the sending State. The
the organ must also act in conjunction with the machinery second condition is that the organ placed at the disposal of
of that State and under its exclusive direction and con- a State by another State must be “acting in the exercise of
trol, rather than on instructions from the sending State. elements of the governmental authority” of the receiving
Thus article 6 is not concerned with ordinary situations of State. There will only be an act attributable to the receiv-
inter-State cooperation or collaboration, pursuant to treaty ing State where the conduct of the loaned organ involves
or otherwise.130 the exercise of the governmental authority of that State.
By comparison with the number of cases of cooperative
(3) Examples of situations that could come within this action by States in fields such as mutual defence, aid and
limited notion of a State organ “placed at the disposal” of development, article 6 covers only a specific and limited
another State might include a section of the health serv- notion of “transferred responsibility”. Yet, in State prac-
ice or some other unit placed under the orders of another tice the situation is not unknown.
country to assist in overcoming an epidemic or natural
disaster, or judges appointed in particular cases to act as (6) In the Chevreau case, a British consul in Persia,
judicial organs of another State. On the other hand, mere temporarily placed in charge of the French consulate, lost
aid or assistance offered by organs of one State to another some papers entrusted to him. On a claim being brought
on the territory of the latter is not covered by article 6. For by France, Arbitrator Beichmann held that: “the British
example, armed forces may be sent to assist another State Government cannot be held responsible for negligence
in the exercise of the right of collective self-defence or by its Consul in his capacity as the person in charge of
for other purposes. Where the forces in question remain the Consulate of another Power.”133 It is implicit in the
under the authority of the sending State, they exercise ele- Arbitrator’s finding that the agreed terms on which the
ments of the governmental authority of that State and not British Consul was acting contained no provision allocat-
of the receiving State. Situations can also arise where the ing responsibility for the Consul’s acts. If a third State had
organ of one State acts on the joint instructions of its own brought a claim, the proper respondent in accordance with
and another State, or there may be a single entity which is article 6 would have been the State on whose behalf the
a joint organ of several States. In these cases, the conduct conduct in question was carried out.
in question is attributable to both States under other arti-
cles of this chapter.131 (7) Similar issues were considered by the European
Commission of Human Rights in two cases relating to the
(4) Thus, what is crucial for the purposes of article 6 is exercise by Swiss police in Liechtenstein of “delegated”
the establishment of a functional link between the organ powers.134 At the relevant time Liechtenstein was not
in question and the structure or authority of the receiv-
1 For the responsibility of a State for directing, controlling or
130 Thus,
the conduct of Italy in policing illegal immigration at sea coercing the internationally wrongful act of another, see articles 17 and
pursuant to an agreement with Albania was not attributable to Albania: 18 and commentaries.
Xhavara and Others v. Italy and Albania, application No. 39473/98, 1 UNRIAA, vol. II (Sales No. 1949.V.1), p. 1113, at p. 1141
Eur. Court H.R., decision of 11 January 2001. Conversely, the conduct (1931).
of Turkey taken in the context of the Turkey-European Communities 1 X and Y v. Switzerland, application Nos. 7289/75 and 7349/76,
customs union was still attributable to Turkey: see WTO, Report of the decision of 14 July 1977; Council of Europe, European Commission
Panel, Turkey: Restrictions on Imports of Textile and Clothing Products of Human Rights, Decisions and Reports, vol. 9, p. 57; and Yearbook
(WT/DS34/R), 31 May 1999, paras. 9.33–9.44. of the European Convention on Human Rights, 1977, vol. 20 (1978),
11 See also article 47 and commentary. p. 372, at pp. 402–406.
268
Annex 13
a party to the Convention for the Protection of Human State under international law if the organ, person or
Rights and Fundamental Freedoms (European Conven- entity acts in that capacity, even if it exceeds its author-
tion on Human Rights), so that if the conduct was attrib- ity or contravenes instructions.
utable only to Liechtenstein no breach of the Convention
could have occurred. The Commission held the case ad-
missible, on the basis that under the treaty governing the Commentary
relations between Switzerland and Liechtenstein of 1923,
Switzerland exercised its own customs and immigration
jurisdiction in Liechtenstein, albeit with the latter’s con- (1) Article 7 deals with the important question of un-
sent and in their mutual interest. The officers in question authorized or ultra vires acts of State organs or entities.
were governed exclusively by Swiss law and were consid- It makes it clear that the conduct of a State organ or an
ered to be exercising the public authority of Switzerland. entity empowered to exercise elements of the governmen-
In that sense, they were not “placed at the disposal” of the tal authority, acting in its official capacity, is attributable
receiving State.135 to the State even if the organ or entity acted in excess of
authority or contrary to instructions.
(8) A further, long-standing example of a situation to
which article 6 applies is the Judicial Committee of the
Privy Council, which has acted as the final court of appeal (2) The State cannot take refuge behind the notion
for a number of independent States within the Common- that, according to the provisions of its internal law or
wealth. Decisions of the Privy Council on appeal from to instructions which may have been given to its organs
an independent Commonwealth State will be attributable or agents, their actions or omissions ought not to have
to that State and not to the United Kingdom. The Privy occurred or ought to have taken a different form. This is
Council’s role is paralleled by certain final courts of ap- so even where the organ or entity in question has overtly
peal acting pursuant to treaty arrangements.136 There are committed unlawful acts under the cover of its official
many examples of judges seconded by one State to anoth- status or has manifestly exceeded its competence. It is
er for a time: in their capacity as judges of the receiving so even if other organs of the State have disowned the
State, their decisions are not attributable to the sending conduct in question.138 Any other rule would contradict
State, even if it continues to pay their salaries. the basic principle stated in article 3, since otherwise a
State could rely on its internal law in order to argue that
(9) Similar questions could also arise in the case of or- conduct, in fact carried out by its organs, was not attrib-
gans of international organizations placed at the disposal utable to it.
of a State and exercising elements of that State’s gov-
ernmental authority. This is even more exceptional than (3) The rule evolved in response to the need for clar-
the inter-State cases to which article 6 is limited. It also ity and security in international relations. Despite early
raises difficult questions of the relations between States equivocal statements in diplomatic practice and by arbi-
and international organizations, questions which fall out- tral tribunals,139 State practice came to support the propo-
side the scope of these articles. Article 57 accordingly ex- sition, articulated by the British Government in response
cludes from the ambit of the articles all questions of the to an Italian request, that “all Governments should always
responsibility of international organizations or of a State be held responsible for all acts committed by their agents
for the acts of an international organization. By the same by virtue of their official capacity”.140 As the Spanish
token, article 6 does not concern those cases where, for Government pointed out: “If this were not the case, one
example, accused persons are transferred by a State to an would end by authorizing abuse, for in most cases there
international institution pursuant to treaty.137 In cooperat- would be no practical way of proving that the agent had
ing with international institutions in such a case, the State or had not acted on orders received.”141 At this time the
concerned does not assume responsibility for their subse- United States supported “a rule of international law that
quent conduct. sovereigns are not liable, in diplomatic procedure, for
damages to a foreigner when arising from the misconduct
of agents acting out of the range not only of their real but
Article 7. Excess of authority or contravention
1 See, e.g., the “Star and Herald” controversy, Moore, Digest,
of instructions
vol. VI, p. 775.
19 In a number of early cases, international responsibility was
The conduct of an organ of a State or of a person
attributed to the State for the conduct of officials without making it
or entity empowered to exercise elements of the gov- clear whether the officials had exceeded their authority: see, e.g., the
ernmental authority shall be considered an act of the following cases: “Only Son”, Moore, History and Digest, vol. IV,
pp. 3404–3405; “William Lee”, ibid., p. 3405; and Donoughho’s, ibid.,
1 See also Drozd and Janousek v. France and Spain, Eur. Court vol. III, p. 3012. Where the question was expressly examined, tribunals
H.R., Series A, No. 240 (1992), paras. 96 and 110. See also Controller did not consistently apply any single principle: see, e.g., the Lewis’s
and Auditor-General v. Davison (New Zealand, Court of Appeal), ILR, case, ibid., p. 3019; the Gadino case, UNRIAA, vol. XV (Sales No.
vol. 104 (1996), p. 526, at pp. 536–537 (Cooke, P.) and pp. 574–576 66.V.3), p. 414 (1901); the Lacaze case, Lapradelle-Politis, vol. II,
(Richardson, J.). An appeal to the Privy Council on other grounds was p. 290, at pp. 297–298; and the“William Yeaton” case, Moore, History
dismissed, Brannigan v. Davison, ibid., vol. 108, p. 622. and Digest, vol. III, p. 2944, at p. 2946.
16 For example, Agreement relating to Appeals to the High Court of 10 For the opinions of the British and Spanish Governments giv-
Australia from the Supreme Court of Nauru (Nauru, 6 September 1976) en in 1898 at the request of Italy in respect of a dispute with Peru,
(United Nations, Treaty Series, vol. 1216, No. 19617, p. 151). see Archivio del Ministero degli Affari esteri italiano, serie politica P,
1 See, e.g., article 89 of the Rome Statute of the International No. 43.
Criminal Court. 11 Note verbale by Duke Almodóvar del Río, 4 July 1898, ibid.
269
Annex 13
of their apparent authority”.142 It is probable that the dif- (6) International human rights courts and tribunals
ferent formulations had essentially the same effect, since have applied the same rule. For example, the Inter-
acts falling outside the scope of both real and apparent American Court of Human Rights in the Velásquez
authority would not be performed “by virtue of … official Rodríguez case said:
capacity”. In any event, by the time of the 1930 Hague This conclusion [of a breach of the Convention] is independent of
Conference, a majority of States responding to the Prepar- whether the organ or official has contravened provisions of internal
atory Committee’s request for information were clearly in law or overstepped the limits of his authority: under international law a
favour of the broadest formulation of the rule, providing State is responsible for the acts of its agents undertaken in their official
for attribution to the State in the case of “[a]cts of officials capacity and for their omissions, even when those agents act outside the
sphere of their authority or violate internal law.1
in the national territory in their public capacity (actes de
fonction) but exceeding their authority”.143 The Basis (7) The central issue to be addressed in determining
of Discussion prepared by the Committee reflected this the applicability of article 7 to unauthorized conduct of
view. The Third Committee of the Conference adopted an official bodies is whether the conduct was performed
article on first reading in the following terms: by the body in an official capacity or not. Cases where
International responsibility is … incurred by a State if damage is sus- officials acted in their capacity as such, albeit unlawfully
tained by a foreigner as a result of unauthorised acts of its officials or contrary to instructions, must be distinguished from
performed under cover of their official character, if the acts contravene cases where the conduct is so removed from the scope
the international obligations of the State.1
of their official functions that it should be assimilated to
(4) The modern rule is now firmly established in this that of private individuals, not attributable to the State.
sense by international jurisprudence, State practice and In the words of the Iran-United States Claims Tribunal,
the writings of jurists.145 It is confirmed, for example, the question is whether the conduct has been “carried out
in article 91 of the Protocol Additional to the Geneva by persons cloaked with governmental authority”.149
Conventions of 12 August 1949, and relating to the
protection of victims of international armed conflicts (8) The problem of drawing the line between unauthor-
(Protocol I), which provides that: “A Party to the conflict ized but still “official” conduct, on the one hand, and “pri-
… shall be responsible for all acts committed by persons vate” conduct on the other, may be avoided if the con-
forming part of its armed forces”: this clearly covers acts duct complained of is systematic or recurrent, such that
committed contrary to orders or instructions. The com- the State knew or ought to have known of it and should
mentary notes that article 91 was adopted by consensus have taken steps to prevent it. However, the distinction
and “correspond[s] to the general principles of law on between the two situations still needs to be made in some
international responsibility”.146 cases, for example when considering isolated instances of
outrageous conduct on the part of persons who are offi-
(5) A definitive formulation of the modern rule is found cials. That distinction is reflected in the expression “if the
in the Caire case. The case concerned the murder of a organ, person or entity acts in that capacity” in arti-
French national by two Mexican officers who, after fail- cle 7. This indicates that the conduct referred to comprises
ing to extort money, took Caire to the local barracks and only the actions and omissions of organs purportedly or
shot him. The Commission held: apparently carrying out their official functions, and not the
private actions or omissions of individuals who happen to
that the two officers, even if they are deemed to have acted outside their be organs or agents of the State.150 In short, the question
competence … and even if their superiors countermanded an order, is whether they were acting with apparent authority.
have involved the responsibility of the State, since they acted under
cover of their status as officers and used means placed at their disposal
on account of that status.1 (9) As formulated, article 7 only applies to the con-
duct of an organ of a State or of an entity empowered to
1 “American Bible Society” incident, statement of United States
exercise elements of the governmental authority, i.e.
Secretary of State, 17 August 1885, Moore, Digest, vol. VI, p. 743;
“Shine and Milligen”, G. H. Hackworth, Digest of International Law vol. IV (Sales No. 1951.V.1), pp. 267–268 (1927); and Way (footnote
(Washington, D.C., United States Government Printing Office, 1943), 114 above), pp. 400–401. The decision of the United States Court of
vol. V, p. 575; and “Miller”, ibid., pp. 570–571. Claims in Royal Holland Lloyd v. United States, 73 Ct. Cl. 722 (1931)
1 League of Nations, Conference for the Codification of Interna-
(Annual Digest of Public International Law Cases (London, Butter-
tional Law, Bases of Discussion … (see footnote 88 above), point V, worth, 1938), vol. 6, p. 442) is also often cited.
No. 2 (b), p. 74, and Supplement to Vol. III … (see footnote 104 above), 1 Velásquez Rodríguez (see footnote 63 above); see also ILR,
pp. 3 and 17. vol. 95, p. 232, at p. 296.
1 League of Nations, Conference for the Codification of Interna-
19 Petrolane, Inc. v. The Government of the Islamic Republic of Iran,
tional Law, Bases of Discussion ..., document C.351(c)M.145(c).1930.
Iran-U.S. C.T.R., vol. 27, p. 64, at p. 92 (1991). See also paragraph (13)
V (see footnote 88 above), p. 237. For a more detailed account of the
of the commentary to article 4.
evolution of the modern rule, see Yearbook … 1975, vol. II, pp. 61–70. 10 One form of ultra vires conduct covered by article 7 would be
1 For example, the 1961 revised draft by the Special Rapporteur,
for a State official to accept a bribe to perform some act or conclude
Mr. García Amador, provided that “an act or omission shall likewise
some transaction. The articles are not concerned with questions that
be imputable to the State if the organs or officials concerned exceeded
would then arise as to the validity of the transaction (cf. the 1969
their competence but purported to be acting in their official capacity”
Vienna Convention, art. 50). So far as responsibility for the corrupt
(Yearbook ... 1961, vol. II, p. 53).
16 ICRC, Commentary on the Additional Protocols of 8 June 1977 to
conduct is concerned, various situations could arise which it is not nec-
essary to deal with expressly in the present articles. Where one State
the Geneva Conventions of 12 August 1949 (Geneva, Martinus Nijhoff, bribes an organ of another to perform some official act, the corrupt-
1987), pp. 1053–1054. ing State would be responsible either under article 8 or article 17. The
1 Caire (see footnote 125 above). For other statements of the question of the responsibility of the State whose official had been bribed
rule, see Maal, UNRIAA, vol. X (Sales No. 60.V.4), pp. 732–733 towards the corrupting State in such a case could hardly arise, but there
(1903); La Masica, ibid., vol. XI (Sales No. 61.V.4), p. 560 (1916); could be issues of its responsibility towards a third party, which would
Youmans (footnote 117 above); Mallén, ibid.; Stephens, UNRIAA, be properly resolved under article 7.
270
Annex 13
State responsibility
only to those cases of attribution covered by articles 4, 5 their conduct involves “governmental activity”. Most
and 6. Problems of unauthorized conduct by other persons, commonly, cases of this kind will arise where State organs
groups or entities give rise to distinct problems, which are supplement their own action by recruiting or instigating
dealt with separately under articles 8, 9 and 10. private persons or groups who act as “auxiliaries” while
remaining outside the official structure of the State. These
(10) As a rule of attribution, article 7 is not concerned include, for example, individuals or groups of private indi-
with the question whether the conduct amounted to a viduals who, though not specifically commissioned by the
breach of an international obligation. The fact that instruc- State and not forming part of its police or armed forces,
tions given to an organ or entity were ignored, or that its are employed as auxiliaries or are sent as “volunteers” to
actions were ultra vires, may be relevant in determining neighbouring countries, or who are instructed to carry out
whether or not the obligation has been breached, but that particular missions abroad.
is a separate issue.151 Equally, article 7 is not concerned
with the admissibility of claims arising from internation- (3) More complex issues arise in determining whether
ally wrongful acts committed by organs or agents acting conduct was carried out “under the direction or control”
ultra vires or contrary to their instructions. Where there of a State. Such conduct will be attributable to the State
has been an unauthorized or invalid act under local law only if it directed or controlled the specific operation and
and as a result a local remedy is available, this will have to the conduct complained of was an integral part of that op-
be resorted to, in accordance with the principle of exhaus- eration. The principle does not extend to conduct which
tion of local remedies, before bringing an international was only incidentally or peripherally associated with an
claim.152 operation and which escaped from the State’s direction or
control.
Article 8. Conduct directed or controlled by a State
(4) The degree of control which must be exercised by
The conduct of a person or group of persons shall the State in order for the conduct to be attributable to
be considered an act of a State under international law it was a key issue in the Military and Paramilitary Ac-
if the person or group of persons is in fact acting on tivities in and against Nicaragua case. The question was
the instructions of, or under the direction or control whether the conduct of the contras was attributable to the
of, that State in carrying out the conduct. United States so as to hold the latter generally responsible
for breaches of international humanitarian law commit-
ted by the contras. This was analysed by ICJ in terms of
Commentary the notion of “control”. On the one hand, it held that the
United States was responsible for the “planning, direction
(1) As a general principle, the conduct of private per- and support” given by the United States to Nicaraguan
sons or entities is not attributable to the State under in- operatives.155 But it rejected the broader claim of Nica-
ternational law. Circumstances may arise, however, where ragua that all the conduct of the contras was attributable
such conduct is nevertheless attributable to the State be- to the United States by reason of its control over them. It
cause there exists a specific factual relationship between concluded that:
the person or entity engaging in the conduct and the State.
Article 8 deals with two such circumstances. The first in- [D]espite the heavy subsidies and other support provided to them by
volves private persons acting on the instructions of the the United States, there is no clear evidence of the United States having
State in carrying out the wrongful conduct. The second actually exercised such a degree of control in all fields as to justify
treating the contras as acting on its behalf.
deals with a more general situation where private persons
act under the State’s direction or control.153 Bearing in …
mind the important role played by the principle of effec-
tiveness in international law, it is necessary to take into All the forms of United States participation mentioned above, and even
account in both cases the existence of a real link between the general control by the respondent State over a force with a high
the person or group performing the act and the State ma- degree of dependency on it, would not in themselves mean, without
further evidence, that the United States directed or enforced the per-
chinery. petration of the acts contrary to human rights and humanitarian law
alleged by the applicant State. Such acts could well be committed by
(2) The attribution to the State of conduct in fact au- members of the contras without the control of the United States. For
this conduct to give rise to legal responsibility of the United States, it
thorized by it is widely accepted in international jurispru- would in principle have to be proved that that State had effective control
dence.154 In such cases it does not matter that the person of the military or paramilitary operations in the course of which the
or persons involved are private individuals nor whether alleged violations were committed.16
11 See ELSI (footnote 85 above), especially at pp. 52, 62 and 74. Thus while the United States was held responsible for its
1 See further article 44, subparagraph (b), and commentary. own support for the contras, only in certain individual
1 Separate issues are raised where one State engages in interna-
instances were the acts of the contras themselves held
tionally wrongful conduct at the direction or under the control of attributable to it, based upon actual participation of and
another State: see article 17 and commentary, and especially para-
graph (7) for the meaning of the words “direction” and “control” in
directions given by that State. The Court confirmed that
various languages. a general situation of dependence and support would be
1 See, e.g., the Zafiro case, UNRIAA, vol. VI (Sales No. 1955.
1 Military and Paramilitary Activities in and against Nicaragua
V.3), p. 160 (1925); the Stephens case (footnote 147 above), p. 267;
and Lehigh Valley Railroad Company and Others (U.S.A.) v. Germa- (see footnote 36 above), p. 51, para. 86.
ny (Sabotage cases): “Black Tom” and “Kingsland” incidents, ibid., 16 Ibid., pp. 62 and 64–65, paras. 109 and 115. See also the concur-
vol. VIII (Sales No. 58.V.2), p. 84 (1930) and p. 458 (1939). ring opinion of Judge Ago, ibid., p. 189, para. 17.
271
Annex 13
insufficient to justify attribution of the conduct to the corporate entities, although owned by and in that sense
State. subject to the control of the State, are considered to be
separate, prima facie their conduct in carrying out their
(5) The Appeals Chamber of the International Tribunal activities is not attributable to the State unless they are
for the Former Yugoslavia has also addressed these issues. exercising elements of governmental authority within
In the Tadić, case, the Chamber stressed that: the meaning of article 5. This was the position taken, for
example, in relation to the de facto seizure of property by
The requirement of international law for the attribution to States of acts a State-owned oil company, in a case where there was no
performed by private individuals is that the State exercises control over
the individuals. The degree of control may, however, vary according
proof that the State used its ownership interest as a vehicle
to the factual circumstances of each case. The Appeals Chamber fails for directing the company to seize the property.163 On the
to see why in each and every circumstance international law should other hand, where there was evidence that the corporation
require a high threshold for the test of control.1 was exercising public powers,164 or that the State was us-
ing its ownership interest in or control of a corporation
The Appeals Chamber held that the requisite degree of specifically in order to achieve a particular result,165 the
control by the Yugoslavian “authorities over these armed conduct in question has been attributed to the State.166
forces required by international law for considering the
armed conflict to be international was overall control
going beyond the mere financing and equipping of such (7) It is clear then that a State may, either by specif-
forces and involving also participation in the planning ic directions or by exercising control over a group, in
and supervision of military operations”.158 In the course effect assume responsibility for their conduct. Each case
of their reasoning, the majority considered it necessary to will depend on its own facts, in particular those concern-
disapprove the ICJ approach in the Military and Paramili- ing the relationship between the instructions given or the
tary Activities in and against Nicaragua case. But the legal direction or control exercised and the specific conduct
issues and the factual situation in the Tadić case were dif- complained of. In the text of article 8, the three terms “in-
ferent from those facing the Court in that case. The tribu- structions”, “direction” and “control” are disjunctive; it is
nal’s mandate is directed to issues of individual criminal sufficient to establish any one of them. At the same time
responsibility, not State responsibility, and the question in it is made clear that the instructions, direction or control
that case concerned not responsibility but the applicable must relate to the conduct which is said to have amounted
rules of international humanitarian law.159 In any event it to an internationally wrongful act.
is a matter for appreciation in each case whether particu-
lar conduct was or was not carried out under the control (8) Where a State has authorized an act, or has exercised
of a State, to such an extent that the conduct controlled direction or control over it, questions can arise as to the
should be attributed to it.160 State’s responsibility for actions going beyond the scope
of the authorization. For example, questions might arise
if the agent, while carrying out lawful instructions or
(6) Questions arise with respect to the conduct of com- directions, engages in some activity which contravenes
panies or enterprises which are State-owned and control- both the instructions or directions given and the inter-
led. If such corporations act inconsistently with the international obligations of the instructing State. Such cases
national obligations of the State concerned the question can be resolved by asking whether the unlawful or unau-
arises whether such conduct is attributable to the State. In thorized conduct was really incidental to the mission or
discussing this issue it is necessary to recall that interna- clearly went beyond it. In general a State, in giving lawful
tional law acknowledges the general separateness of cor- instructions to persons who are not its organs, does not
porate entities at the national level, except in those cases assume the risk that the instructions will be carried out in
where the “corporate veil” is a mere device or a vehicle an internationally unlawful way. On the other hand, where
for fraud or evasion.161 The fact that the State initially es- persons or groups have committed acts under the effective
tablishes a corporate entity, whether by a special law or control of a State, the condition for attribution will still be
otherwise, is not a sufficient basis for the attribution to met even if particular instructions may have been ignored.
the State of the subsequent conduct of that entity.162 Since
1 Prosecutor v. Duško Tadić,
vol. 5, p. 361 (1984); Otis Elevator Company v. The Islamic Republic
International Tribunal for the Former of Iran, ibid., vol. 14, p. 283 (1987); and Eastman Kodak Company v.
Yugoslavia, Case IT-94-1-A (1999), ILM, vol. 38, No. 6 (November The Government of Iran, ibid., vol. 17, p. 153 (1987).
1999), p. 1518, at p. 1541, para. 117. For the judgment of the Trial 16 SEDCO, Inc. v. National Iranian Oil Company, ibid., vol. 15,
Chamber (Case IT-94-1-T (1997)), see ILR, vol. 112, p. 1. p. 23 (1987). See also International Technical Products Corporation
1 ILM, vol. 38, No. 6 (November 1999), p. 1546, para. 145.
v. The Government of the Islamic Republic of Iran, ibid., vol. 9, p. 206
19 See the explanation given by Judge Shahabuddeen, ibid., (1985); and Flexi-Van Leasing, Inc. v. The Government of the Islamic
pp. 1614–1615. Republic of Iran, ibid., vol. 12, p. 335, at p. 349 (1986).
160 The problem of the degree of State control necessary for the 16 Phillips Petroleum Company Iran v. The Islamic Republic of Iran,
purposes of attribution of conduct to the State has also been dealt with, ibid., vol. 21, p. 79 (1989); and Petrolane (see footnote 149 above).
for example, by the Iran-United States Claims Tribunal and the Euro- 16 Foremost Tehran, Inc. v. The Government of the Islamic Repub-
pean Court of Human Rights: Yeager (see footnote 101 above), p. 103. lic of Iran, Iran-U.S. ibid., vol. 10, p. 228 (1986); and American Bell
See also Starrett Housing Corporation v. Government of the Islamic International Inc. v. The Islamic Republic of Iran, ibid., vol. 12, p. 170
Republic of Iran, Iran-U.S. C.T.R., vol. 4, p. 122, at p. 143 (1983); (1986).
Loizidou v. Turkey, Merits, Eur. Court H.R., Reports, 1996–VI, p. 2216, 166 See Hertzberg et al. v. Finland (Official Records of the Gen-
at pp. 2235–2236, para. 56, also p. 2234, para. 52; and ibid., Prelimi- eral Assembly, Thirty-seventh Session, Supplement No. 40 (A/37/40),
nary Objections, Eur. Court H.R., Series A, No. 310, p. 23, para. 62 annex XIV, communication No. R.14/61, p. 161, at p. 164, para. 9.1)
(1995). (1982). See also X v. Ireland, application No. 4125/69, Yearbook of the
161 Barcelona Traction (see footnote 25 above), p. 39, paras. 56–58.
European Convention on Human Rights, 1971, vol. 14 (1973), p. 199;
16 For example, the Workers’ Councils considered in Schering and Young, James and Webster v. the United Kingdom, Eur. Court H.R.,
Corporation v. The Islamic Republic of Iran, Iran-U.S. C.T.R., Series A, No. 44 (1981).
272
Annex 13
The conduct will have been committed under the control at least exercised elements of governmental authority in the absence of
of the State and it will be attributable to the State in ac- official authorities, in operations of which the new Government must
have had knowledge and to which it did not specifically object.168
cordance with article 8.
(3) Article 9 establishes three conditions which must be
(9) Article 8 uses the words “person or group of per- met in order for conduct to be attributable to the State:
sons”, reflecting the fact that conduct covered by the arti- first, the conduct must effectively relate to the exercise of
cle may be that of a group lacking separate legal personal- elements of the governmental authority, secondly, the con-
ity but acting on a de facto basis. Thus, while a State may duct must have been carried out in the absence or default
authorize conduct by a legal entity such as a corporation, of the official authorities, and thirdly, the circumstances
it may also deal with aggregates of individuals or groups must have been such as to call for the exercise of those
that do not have legal personality but are nonetheless act- elements of authority.
ing as a collective.
(4) As regards the first condition, the person or group
acting must be performing governmental functions, though
Article 9. Conduct carried out in the absence they are doing so on their own initiative. In this respect,
or default of the official authorities the nature of the activity performed is given more weight
than the existence of a formal link between the actors and
the organization of the State. It must be stressed that the
The conduct of a person or group of persons shall private persons covered by article 9 are not equivalent to
be considered an act of a State under international law a general de facto Government. The cases envisaged by
if the person or group of persons is in fact exercising article 9 presuppose the existence of a Government in of-
elements of the governmental authority in the absence fice and of State machinery whose place is taken by ir-
or default of the official authorities and in circumstanc- regulars or whose action is supplemented in certain cases.
es such as to call for the exercise of those elements of This may happen on part of the territory of a State which
authority. is for the time being out of control, or in other specific
circumstances. A general de facto Government, on the
other hand, is itself an apparatus of the State, replacing
that which existed previously. The conduct of the organs
Commentary of such a Government is covered by article 4 rather than
article 9.169
(1) Article 9 deals with the exceptional case of conduct
in the exercise of elements of the governmental authority (5) In respect of the second condition, the phrase “in the
by a person or group of persons acting in the absence of the absence or default of ” is intended to cover both the situ-
official authorities and without any actual authority to do ation of a total collapse of the State apparatus as well as
so. The exceptional nature of the circumstances envisaged cases where the official authorities are not exercising their
in the article is indicated by the phrase “in circumstances functions in some specific respect, for instance, in the case
such as to call for”. Such cases occur only rarely, such as of a partial collapse of the State or its loss of control over a
during revolution, armed conflict or foreign occupation, certain locality. The phrase “absence or default” seeks to
where the regular authorities dissolve, are disintegrating, capture both situations.
have been suppressed or are for the time being inopera-
tive. They may also cover cases where lawful authority is (6) The third condition for attribution under article 9
being gradually restored, e.g. after foreign occupation. requires that the circumstances must have been such as
to call for the exercise of elements of the governmental
(2) The principle underlying article 9 owes something to authority by private persons. The term “call for” conveys
the old idea of the levée en masse, the self-defence of the the idea that some exercise of governmental functions was
citizenry in the absence of regular forces:167 in effect it is called for, though not necessarily the conduct in question.
a form of agency of necessity. Instances continue to occur In other words, the circumstances surrounding the exer-
from time to time in the field of State responsibility. Thus, cise of elements of the governmental authority by private
persons must have justified the attempt to exercise police
the position of the Revolutionary Guards or “Komitehs”
or other functions in the absence of any constituted au-
immediately after the revolution in the Islamic Republic
thority. There is thus a normative element in the form of
of Iran was treated by the Iran-United States Claims Tri- agency entailed by article 9, and this distinguishes these
bunal as covered by the principle expressed in article 9. situations from the normal principle that conduct of pri-
Yeager concerned, inter alia, the action of performing im- vate parties, including insurrectionary forces, is not at-
migration, customs and similar functions at Tehran airport tributable to the State.170
in the immediate aftermath of the revolution. The tribunal
held the conduct attributable to the Islamic Republic of 16 Yeager (see footnote 101 above), p. 104, para. 43.
Iran, on the basis that, if it was not actually authorized by 169 See, e.g., the award of 18 October 1923 by Arbitrator Taft in the
the Government, then the Guards: Tinoco case (footnote 87 above), pp. 381–382. On the responsibility
of the State for the conduct of de facto Governments, see also J. A.
16 This principle is recognized as legitimate by article 2 of the Regu- Frowein, Das de facto-Regime im Völkerrecht (Cologne, Heymanns,
lations respecting the Laws and Customs of War on Land (annexed to 1968), pp. 70–71. Conduct of a Government in exile might be covered
the Hague Conventions II of 1899 and IV of 1907 respecting the Laws by article 9, depending on the circumstances.
and Customs of War on Land); and by article 4, paragraph A (6), of the 10 See, e.g., the Sambiaggio case, UNRIAA, vol. X (Sales
Geneva Convention relative to the Treatment of Prisoners of War of No. 60.V.4), p. 499, at p. 512 (1904); see also article 10 and
12 August 1949. commentary.
273
Annex 13
Article 10. Conduct of an insurrectional insurrectional movement cannot be attributed to the State.
or other movement This can be seen, for example, from the preparatory work
for the 1930 Hague Conference. Replies of Governments
1. The conduct of an insurrectional movement to point IX of the request for information addressed to
which becomes the new Government of a State shall them by the Preparatory Committee indicated substantial
be considered an act of that State under international agreement that: (a) the conduct of organs of an insurrec-
law. tional movement could not be attributed as such to the
State or entail its international responsibility; and (b) only
2. The conduct of a movement, insurrectional or conduct engaged in by organs of the State in connection
other, which succeeds in establishing a new State in with the injurious acts of the insurgents could be attrib-
part of the territory of a pre-existing State or in a ter- uted to the State and entail its international responsibility,
ritory under its administration shall be considered an and then only if such conduct constituted a breach of an
act of the new State under international law. international obligation of that State.174
3. This article is without prejudice to the attribu-
tion to a State of any conduct, however related to that (4) The general principle that the conduct of an insur-
of the movement concerned, which is to be considered rectional or other movement is not attributable to the State
an act of that State by virtue of articles to 9. is premised on the assumption that the structures and or-
ganization of the movement are and remain independent
of those of the State. This will be the case where the State
Commentary successfully puts down the revolt. In contrast, where the
(1) Article 10 deals with the special case of attribution movement achieves its aims and either installs itself as the
to a State of conduct of an insurrectional or other move- new Government of the State or forms a new State in part
ment which subsequently becomes the new Government of the territory of the pre-existing State or in a territory
of the State or succeeds in establishing a new State. under its administration, it would be anomalous if the new
regime or new State could avoid responsibility for con-
duct earlier committed by it. In these exceptional circum-
(2) At the outset, the conduct of the members of the stances, article 10 provides for the attribution of the con-
movement presents itself purely as the conduct of private duct of the successful insurrectional or other movement
individuals. It can be placed on the same footing as that of to the State. The basis for the attribution of conduct of a
persons or groups who participate in a riot or mass dem- successful insurrectional or other movement to the State
onstration and it is likewise not attributable to the State. under international law lies in the continuity between the
Once an organized movement comes into existence as a movement and the eventual Government. Thus the term
matter of fact, it will be even less possible to attribute its “conduct” only concerns the conduct of the movement as
conduct to the State, which will not be in a position to such and not the individual acts of members of the move-
exert effective control over its activities. The general prin- ment, acting in their own capacity.
ciple in respect of the conduct of such movements, com-
mitted during the continuing struggle with the constituted
authority, is that it is not attributable to the State under (5) Where the insurrectional movement, as a new Gov-
international law. In other words, the acts of unsuccessful ernment, replaces the previous Government of the State,
insurrectional movements are not attributable to the State, the ruling organization of the insurrectional movement
unless under some other article of chapter II, for example becomes the ruling organization of that State. The conti-
in the special circumstances envisaged by article 9. nuity which thus exists between the new organization of
the State and that of the insurrectional movement leads
(3) Ample support for this general principle is found naturally to the attribution to the State of conduct which
in arbitral jurisprudence. International arbitral bodies, the insurrectional movement may have committed during
including mixed claims commissions171 and arbitral tri- the struggle. In such a case, the State does not cease to
bunals172 have uniformly affirmed what Commissioner exist as a subject of international law. It remains the same
Nielsen in the Solis case described as a “well-established State, despite the changes, reorganizations and adapta-
principle of international law”, that no Government can tions which occur in its institutions. Moreover, it is the
be held responsible for the conduct of rebellious groups only subject of international law to which responsibility
committed in violation of its authority, where it is itself can be attributed. The situation requires that acts com-
guilty of no breach of good faith, or of no negligence in mitted during the struggle for power by the apparatus of
suppressing insurrection.173 Diplomatic practice is re- the insurrectional movement should be attributable to the
markably consistent in recognizing that the conduct of an State, alongside acts of the then established Government.
171 See the decisions of the various mixed commissions: Zuloa-

(6) Where the insurrectional or other movement suc-
ga and Miramon Governments, Moore, History and Digest, vol. III, ceeds in establishing a new State, either in part of the
p. 2873; McKenny case, ibid., p. 2881; Confederate States, ibid., p. 2886;
Confederate Debt, ibid., p. 2900; and Maximilian Government, ibid., territory of the pre-existing State or in a territory which
p. 2902, at pp. 2928–2929. was previously under its administration, the attribution to
1 See, e.g., British Claims in the Spanish Zone of Morocco the new State of the conduct of the insurrectional or other
(footnote 44 above), p. 642; and the Iloilo Claims, UNRIAA, vol. VI movement is again justified by virtue of the continuity be-
(Sales No. 1955.V.3), p. 158, at pp. 159–160 (1925).
1 UNRIAA, vol. IV (Sales No. 1951.V.1), p. 358, at p. 361 (1928) 1 League of Nations, Conference for the Codification of Interna-
(referring to Home Frontier and Foreign Missionary Society, ibid., tional Law, Bases of Discussion … (see footnote 88 above), p. 108;
vol. VI (Sales No. 1955.V.3), p. 42 (1920)); cf. the Sambiaggio case and Supplement to Volume III … (see footnote 104 above), pp. 3
(footnote 170 above), p. 524. and 20.
274
Annex 13
tween the organization of the movement and the organiza- (10) As compared with paragraph 1, the scope of the
tion of the State to which it has given rise. Effectively the attribution rule articulated by paragraph 2 is broadened to
same entity which previously had the characteristics of an include “insurrectional or other” movements. This termi-
insurrectional or other movement has become the Govern- nology reflects the existence of a greater variety of move-
ment of the State it was struggling to establish. The pred- ments whose actions may result in the formation of a new
ecessor State will not be responsible for those acts. The State. The words do not, however, extend to encompass
only possibility is that the new State be required to assume the actions of a group of citizens advocating separation or
responsibility for conduct committed with a view to its revolution where these are carried out within the frame-
own establishment, and this represents the accepted rule. work of the predecessor State. Nor does it cover the situa-
tion where an insurrectional movement within a territory
(7) Paragraph 1 of article 10 covers the scenario in succeeds in its agitation for union with another State. This
which the insurrectional movement, having triumphed, is essentially a case of succession, and outside the scope
has substituted its structures for those of the previous of the articles, whereas article 10 focuses on the conti-
Government of the State in question. The phrase “which nuity of the movement concerned and the eventual new
becomes the new Government” is used to describe this Government or State, as the case may be.
consequence. However, the rule in paragraph 1 should not
be pressed too far in the case of Governments of national (11) No distinction should be made for the purposes of
reconciliation, formed following an agreement between article 10 between different categories of movements on
the existing authorities and the leaders of an insurrection- the basis of any international “legitimacy” or of any ille-
al movement. The State should not be made responsible gality in respect of their establishment as a Government,
for the conduct of a violent opposition movement merely despite the potential importance of such distinctions in
because, in the interests of an overall peace settlement, other contexts.175 From the standpoint of the formulation
elements of the opposition are drawn into a reconstructed of rules of law governing State responsibility, it is unnec-
Government. Thus, the criterion of application of para- essary and undesirable to exonerate a new Government
graph 1 is that of a real and substantial continuity between or a new State from responsibility for the conduct of its
the former insurrectional movement and the new Govern- personnel by reference to considerations of legitimacy or
ment it has succeeded in forming. illegitimacy of its origin.176 Rather, the focus must be on
the particular conduct in question, and on its lawfulness or
(8) Paragraph 2 of article 10 addresses the second sce- otherwise under the applicable rules of international law.
nario, where the structures of the insurrectional or other
revolutionary movement become those of a new State, (12) Arbitral decisions, together with State practice and
constituted by secession or decolonization in part of the the literature, indicate a general acceptance of the two
territory which was previously subject to the sovereignty positive attribution rules in article 10. The international
or administration of the predecessor State. The expression arbitral decisions, e.g. those of the mixed commissions
“or in a territory under its administration” is included in established in respect of Venezuela (1903) and Mexico
order to take account of the differing legal status of differ- (1920–1930), support the attribution of conduct by insur-
ent dependent territories. gents where the movement is successful in achieving its
revolutionary aims. For example, in the Bolívar Railway
(9) A comprehensive definition of the types of groups Company claim, the principle is stated in the following
encompassed by the term “insurrectional movement” as terms:
used in article 10 is made difficult by the wide variety The nation is responsible for the obligations of a successful revolution
of forms which insurrectional movements may take in from its beginning, because in theory, it represented ab initio a changing
practice, according to whether there is relatively limited national will, crystallizing in the finally successful result.1
internal unrest, a genuine civil war situation, an anti-co-
lonial struggle, the action of a national liberation front, The French-Venezuelan Mixed Claims Commission in
revolutionary or counter-revolutionary movements and its decision concerning the French Company of Venezue-
so on. Insurrectional movements may be based in the ter- lan Railroads case emphasized that the State cannot be
ritory of the State against which the movement’s actions held responsible for the acts of revolutionaries “unless the
are directed, or on the territory of a third State. Despite revolution was successful”, since such acts then involve
this diversity, the threshold for the application of the laws the responsibility of the State “under the well-recognized
of armed conflict contained in the Protocol Additional to rules of public law”.178 In the Pinson case, the French-
the Geneva Conventions of 12 August 1949, and relating Mexican Claims Commission ruled that:
to the protection of victims of non-international armed
1 See H. Atlam, “National liberation movements and international
conflicts (Protocol II) may be taken as a guide. Article
responsibility”, United Nations Codification of State Responsibility,
1, paragraph 1, refers to “dissident armed forces or other B. Simma and M. Spinedi, eds. (New York, Oceana, 1987), p. 35.
organized armed groups which, under responsible com- 16 As ICJ said, “[p]hysical control of a territory, and not sovereignty
mand, exercise such control over a part of [the relevant or legitimacy of title, is the basis of State liability for acts affecting
State’s] territory as to enable them to carry out sustained other States”, Legal Consequences for States of the Continued
and concerted military operations and to implement this Presence of South Africa in Namibia (South West Africa) notwith-
Protocol”, and it contrasts such groups with “situations of standing Security Council Resolution 276 (1970), Advisory Opinion
I.C.J. Reports 1971, p. 16, at p. 54, para. 118.
internal disturbances and tensions, such as riots, isolated 1 UNRIAA, vol. IX (Sales No. 59.V.5), p. 445, at p. 453 (1903).
and sporadic acts of violence and other acts of a simi- See also Puerto Cabello and Valencia Railway Company, ibid., p. 510,
lar nature” (art. 1, para. 2). This definition of “dissident at p. 513 (1903).
armed forces” reflects, in the context of the Protocols, the 1 Ibid., vol. X (Sales No. 60.V.4), p. 285, at p. 354 (1902). See also
essential idea of an “insurrectional movement”. the Dix case, ibid., vol. IX (Sales No. 59.V.5), p. 119 (1902).
275
Annex 13
if the injuries originated, for example, in requisitions or forced contri- Article 11. Conduct acknowledged and
butions demanded ... by revolutionaries before their final success, or if adopted by a State as its own
they were caused ... by offences committed by successful revolutionary
forces, the responsibility of the State ... cannot be denied.19
Conduct which is not attributable to a State under
the preceding articles shall nevertheless be considered
(13) The possibility of holding the State responsible for an act of that State under international law if and to
the conduct of a successful insurrectional movement was the extent that the State acknowledges and adopts the
brought out in the request for information addressed to conduct in question as its own.
Governments by the Preparatory Committee for the 1930
Hague Conference. On the basis of replies received from
a number of Governments, the Preparatory Committee Commentary
drew up the following Basis of Discussion: “A State is re-
sponsible for damage caused to foreigners by an insurrec- (1) All the bases for attribution covered in chapter II,
tionist party which has been successful and has become with the exception of the conduct of insurrectional or oth-
the Government to the same degree as it is responsible er movements under article 10, assume that the status of
for damage caused by acts of the Government de jure or the person or body as a State organ, or its mandate to act
its officials or troops.” 180 Although the proposition was on behalf of the State, are established at the time of the
never discussed, it may be considered to reflect the rule of alleged wrongful act. Article 11, by contrast, provides for
attribution now contained in paragraph 2. the attribution to a State of conduct that was not or may
not have been attributable to it at the time of commission,
(14) More recent decisions and practice do not, on the but which is subsequently acknowledged and adopted by
whole, give any reason to doubt the propositions con- the State as its own.
tained in article 10. In one case, the Supreme Court of
Namibia went even further in accepting responsibility (2) In many cases, the conduct which is acknowledged
for “anything done” by the predecessor administration of and adopted by a State will be that of private persons or
South Africa.181 entities. The general principle, drawn from State practice
and international judicial decisions, is that the conduct
of a person or group of persons not acting on behalf of
(15) Exceptional cases may occur where the State was the State is not considered as an act of the State under
in a position to adopt measures of vigilance, prevention international law. This conclusion holds irrespective of
or punishment in respect of the movement’s conduct but the circumstances in which the private person acts and of
improperly failed to do so. This possibility is preserved by the interests affected by the person’s conduct.
paragraph 3 of article 10, which provides that the attribu-
tion rules of paragraphs 1 and 2 are without prejudice to (3) Thus, like article 10, article 11 is based on the prin-
the attribution to a State of any conduct, however related ciple that purely private conduct cannot as such be attrib-
to that of the movement concerned, which is to be consid- uted to a State. But it recognizes “nevertheless” that con-
ered an act of that State by virtue of other provisions in duct is to be considered as an act of a State “if and to the
chapter II. The term “however related to that of the move- extent that the State acknowledges and adopts the conduct
ment concerned” is intended to have a broad meaning. in question as its own”. Instances of the application of
Thus, the failure by a State to take available steps to pro- the principle can be found in judicial decisions and State
tect the premises of diplomatic missions, threatened from practice. For example, in the Lighthouses arbitration, a
attack by an insurrectional movement, is clearly conduct tribunal held Greece liable for the breach of a concession
attributable to the State and is preserved by paragraph 3. agreement initiated by Crete at a period when the latter
was an autonomous territory of the Ottoman Empire,
(16) A further possibility is that the insurrectional move- partly on the basis that the breach had been “endorsed
ment may itself be held responsible for its own conduct by [Greece] as if it had been a regular transaction … and
under international law, for example for a breach of inter- eventually continued by her, even after the acquisition of
national humanitarian law committed by its forces. The territorial sovereignty over the island”.182 In the context
topic of the international responsibility of unsuccessful of State succession, it is unclear whether a new State suc-
ceeds to any State responsibility of the predecessor State
insurrectional or other movements, however, falls outside
with respect to its territory.183 However, if the successor
the scope of the present articles, which are concerned only
State, faced with a continuing wrongful act on its terri-
with the responsibility of States.
tory, endorses and continues that situation, the inference
19 Ibid.,
vol. V (Sales No. 1952.V.3), p. 327, at p. 353 (1928). may readily be drawn that it has assumed responsibility
10
League of Nations, Conference for the Codification of Interna- for it.
tional Law, Bases of Discussion … (see footnote 88 above), pp. 108
and 116; and Basis of discussion No. 22 (c), ibid., p. 118; reproduced in (4) Outside the context of State succession, the Unit-
Yearbook ... 1956, vol. II, p. 223, at p. 224, document A/CN.4/96.
181 Guided in particular by a constitutional provision, the Supreme
ed States Diplomatic and Consular Staff in Tehran case
Court of Namibia held that “the new government inherits responsibil-
provides a further example of subsequent adoption by a
ity for the acts committed by the previous organs of the State”, Minis- 1 Affaire relative à la concession des phares de l’Empire ottoman,
ter of Defence, Namibia v. Mwandinghi, South African Law Reports,
1992 (2), p. 355, at p. 360; and ILR, vol. 91, p. 341, at p. 361. See, on UNRIAA, vol. XII (Sales No. 63.V.3), p. 155, at p. 198 (1956).
the other hand, 44123 Ontario Ltd. v. Crispus Kiyonga and Others, 1 The matter is reserved by article 39 of the Vienna Convention
11 Kampala Law Reports 14, pp. 20–21 (1992); and ILR, vol. 103, on Succession of States in respect of Treaties (hereinafter “the 1978
p. 259, at p. 266 (High Court, Uganda). Vienna Convention”).
276
Annex 13
State of particular conduct. There ICJ drew a clear distinc- (6) The phrase “acknowledges and adopts the conduct
tion between the legal situation immediately following the in question as its own” is intended to distinguish cases
seizure of the United States embassy and its personnel by of acknowledgement and adoption from cases of mere
the militants, and that created by a decree of the Iranian support or endorsement.188 ICJ in the United States Dip-
State which expressly approved and maintained the situa- lomatic and Consular Staff in Tehran case used phrases
tion. In the words of the Court: such as “approval”, “endorsement”, “the seal of official
governmental approval” and “the decision to perpetuate
The policy thus announced by the Ayatollah Khomeini, of maintaining [the situation]”.189 These were sufficient in the context of
the occupation of the Embassy and the detention of its inmates as hos- that case, but as a general matter, conduct will not be at-
tages for the purpose of exerting pressure on the United States Govern- tributable to a State under article 11 where a State merely
ment was complied with by other Iranian authorities and endorsed by
them repeatedly in statements made in various contexts. The result of acknowledges the factual existence of conduct or express-
that policy was fundamentally to transform the legal nature of the situ- es its verbal approval of it. In international controversies,
ation created by the occupation of the Embassy and the detention of its States often take positions which amount to “approval”
diplomatic and consular staff as hostages. The approval given to these or “endorsement” of conduct in some general sense but
facts by the Ayatollah Khomeini and other organs of the Iranian State, do not involve any assumption of responsibility. The lan-
and the decision to perpetuate them, translated continuing occupation
of the Embassy and detention of the hostages into acts of that State.1 guage of “adoption”, on the other hand, carries with it the
idea that the conduct is acknowledged by the State as, in
effect, its own conduct. Indeed, provided the State’s inten-
In that case it made no difference whether the effect of the tion to accept responsibility for otherwise non-attributa-
“approval” of the conduct of the militants was merely pro- ble conduct is clearly indicated, article 11 may cover cases
spective, or whether it made the Islamic Republic of Iran where a State has accepted responsibility for conduct of
responsible for the whole process of seizure of the em- which it did not approve, which it had sought to prevent
bassy and detention of its personnel ab initio. The Islamic and which it deeply regretted. However such acceptance
Republic of Iran had already been held responsible in re- may be phrased in the particular case, the term “acknowl-
lation to the earlier period on a different legal basis, viz. edges and adopts” in article 11 makes it clear that what is
its failure to take sufficient action to prevent the seizure or required is something more than a general acknowledge-
to bring it to an immediate end.185 In other cases no such ment of a factual situation, but rather that the State identi-
prior responsibility will exist. Where the acknowledge- fies the conduct in question and makes it its own.
ment and adoption is unequivocal and unqualified there
is good reason to give it retroactive effect, which is what
(7) The principle established by article 11 governs the
the tribunal did in the Lighthouses arbitration.186 This is question of attribution only. Where conduct has been ac-
consistent with the position established by article 10 for knowledged and adopted by a State, it will still be neces-
insurrectional movements and avoids gaps in the extent of sary to consider whether the conduct was internationally
responsibility for what is, in effect, the same continuing wrongful. For the purposes of article 11, the internation-
act. al obligations of the adopting State are the criterion for
wrongfulness. The conduct may have been lawful so far
(5) As regards State practice, the capture and subse- as the original actor was concerned, or the actor may have
quent trial in Israel of Adolf Eichmann may provide an been a private party whose conduct in the relevant respect
example of the subsequent adoption of private conduct by was not regulated by international law. By the same token,
a State. On 10 May 1960, Eichmann was captured by a a State adopting or acknowledging conduct which is law-
group of Israelis in Buenos Aires. He was held in captivity ful in terms of its own international obligations does not
in Buenos Aires in a private home for some weeks before thereby assume responsibility for the unlawful acts of any
being taken by air to Israel. Argentina later charged the other person or entity. Such an assumption of responsibil-
Israeli Government with complicity in Eichmann’s capture, ity would have to go further and amount to an agreement
a charge neither admitted nor denied by Israeli Foreign to indemnify for the wrongful act of another.
Minister Golda Meir, during the discussion in the Security
Council of the complaint. She referred to Eichmann’s cap- (8) The phrase “if and to the extent that” is intended to
tors as a “volunteer group”.187 Security Council resolu- convey a number of ideas. First, the conduct of, in particu-
tion 138 (1960) of 23 June 1960 implied a finding that the lar, private persons, groups or entities is not attributable to
Israeli Government was at least aware of, and consented the State unless under some other article of chapter II or
to, the successful plan to capture Eichmann in Argentina. unless it has been acknowledged and adopted by the State.
It may be that Eichmann’s captors were “in fact acting Secondly, a State might acknowledge and adopt conduct
on the instructions of, or under the direction or control only to a certain extent. In other words, a State may elect
of ” Israel, in which case their conduct was more properly to acknowledge and adopt only some of the conduct in
attributed to the State under article 8. But where there are question. Thirdly, the act of acknowledgment and adop-
doubts about whether certain conduct falls within article tion, whether it takes the form of words or conduct, must
8, these may be resolved by the subsequent adoption of be clear and unequivocal.
the conduct in question by the State.
(9) The conditions of acknowledgement and adoption
1 United States Diplomatic and Consular Staff in Tehran (see are cumulative, as indicated by the word “and”. The order
footnote 59 above), p. 35, para. 74. of the two conditions indicates the normal sequence of
1 Ibid., pp. 31–33, paras. 63–68.
16 Lighthouses arbitration (see footnote 182 above), pp. 197–198. 1 The separate question of aid or assistance by a State to interna-
1 Official Records of the Security Council, Fifteenth Year, 866th tionally wrongful conduct of another State is dealt with in article 16.
meeting, 22 June 1960, para. 18. 19 See footnote 59 above.
277
Annex 13
events in cases in which article 11 is relied on. Acknowl- (4) For the reason given in paragraph (2) above, it is
edgement and adoption of conduct by a State might be neither possible nor desirable to deal in the framework
express (as for example in the United States Diplomatic of this Part with all the issues that can arise in determin-
and Consular Staff in Tehran case), or it might be inferred ing whether there has been a breach of an international
from the conduct of the State in question. obligation. Questions of evidence and proof of such a
breach fall entirely outside the scope of the articles. Other
questions concern rather the classification or typology of
international obligations. These have only been included
Chapter iii in the text where they can be seen to have distinct conse-
quences within the framework of the secondary rules of
State responsibility.191
breaCh Of an internatiOnal ObligatiOn
Commentary
Article 12. Existence of a breach of an
(1) There is a breach of an international obligation when
international obligation
conduct attributed to a State as a subject of international
law amounts to a failure by that State to comply with an
international obligation incumbent upon it or, to use the There is a breach of an international obligation by
language of article 2, subparagraph (b), when such con- a State when an act of that State is not in conformity
duct constitutes “a breach of an international obligation with what is required of it by that obligation, regard-
of the State”. This chapter develops the notion of a breach less of its origin or character.
of an international obligation, to the extent that this is pos-
sible in general terms.
Commentary
(2) It must be stressed again that the articles do not
purport to specify the content of the primary rules of
international law, or of the obligations thereby created (1) As stated in article 2, a breach by a State of an in-
for particular States.190 In determining whether given ternational obligation incumbent upon it gives rise to its
conduct attributable to a State constitutes a breach of its international responsibility. It is first necessary to specify
international obligations, the principal focus will be on what is meant by a breach of an international obligation.
the primary obligation concerned. It is this which has to This is the purpose of article 12, which defines in the
be interpreted and applied to the situation, determining most general terms what constitutes a breach of an inter-
thereby the substance of the conduct required, the stand- national obligation by a State. In order to conclude that
ard to be observed, the result to be achieved, etc. There is there is a breach of an international obligation in any spe-
no such thing as a breach of an international obligation in cific case, it will be necessary to take account of the other
the abstract, and chapter III can only play an ancillary role provisions of chapter III which specify further conditions
in determining whether there has been such a breach, or relating to the existence of a breach of an international
the time at which it occurred, or its duration. Nonetheless, obligation, as well as the provisions of chapter V dealing
a number of basic principles can be stated. with circumstances which may preclude the wrongfulness
of an act of a State. But in the final analysis, whether and
when there has been a breach of an obligation depends on
(3) The essence of an internationally wrongful act lies in the precise terms of the obligation, its interpretation and
the non-conformity of the State’s actual conduct with the application, taking into account its object and purpose and
conduct it ought to have adopted in order to comply with the facts of the case.
a particular international obligation. Such conduct gives
rise to the new legal relations which are grouped under
the common denomination of international responsibility. (2) In introducing the notion of a breach of an interna-
Chapter III, therefore, begins with a provision specifying tional obligation, it is necessary again to emphasize the
in general terms when it may be considered that there is a autonomy of international law in accordance with the
breach of an international obligation (art. 12). The basic principle stated in article 3. In the terms of article 12, the
concept having been defined, the other provisions of the breach of an international obligation consists in the dis-
chapter are devoted to specifying how this concept applies conformity between the conduct required of the State by
to various situations. In particular, the chapter deals with that obligation and the conduct actually adopted by the
the question of the intertemporal law as it applies to State State—i.e. between the requirements of international law
responsibility, i.e. the principle that a State is only respon- and the facts of the matter. This can be expressed in differ-
sible for a breach of an international obligation if the ob- ent ways. For example, ICJ has used such expressions as
ligation is in force for the State at the time of the breach “incompatibility with the obligations” of a State,192 acts
(art. 13), with the equally important question of continu- “contrary to” or “inconsistent with” a given rule,193 and
ing breaches (art. 14), and with the special problem of de- 191 See, e.g., the classification of obligations of conduct and results,
termining whether and when there has been a breach of an paragraphs (11) to (12) of the commentary to article 12.
obligation which is directed not at single but at composite 19 United States Diplomatic and Consular Staff in Tehran
acts, i.e. where the essence of the breach lies in a series of (see footnote 59 above), p. 29, para. 56.
acts defined in aggregate as wrongful (art. 15). 19 Military and Paramilitary Activities in and against Nicaragua
(see footnote 36 above), p. 64, para. 115, and p. 98, para. 186, respec-
190 See paragraphs (2) to (4) of the general commentary. tively.
278
Annex 13
“failure to comply with its treaty obligations”.194 In the “origin”, which has the same meaning, is not attended by
ELSI case, a Chamber of the Court asked the “question the doubts and doctrinal debates the term “source” has
whether the requisition was in conformity with the re- provoked.
quirements … of the FCN Treaty”.195 The expression “not
in conformity with what is required of it by that obliga- (4) According to article 12, the origin or provenance of
tion” is the most appropriate to indicate what constitutes an obligation does not, as such, alter the conclusion that
the essence of a breach of an international obligation by a responsibility will be entailed if it is breached by a State,
State. It allows for the possibility that a breach may exist nor does it, as such, affect the regime of State responsibil-
even if the act of the State is only partly contrary to an ity thereby arising. Obligations may arise for a State by a
international obligation incumbent upon it. In some cas- treaty and by a rule of customary international law or by
es precisely defined conduct is expected from the State a treaty and a unilateral act.197 Moreover, these various
concerned; in others the obligation only sets a minimum grounds of obligation interact with each other, as practice
standard above which the State is free to act. Conduct pro- clearly shows. Treaties, especially multilateral treaties, can
scribed by an international obligation may involve an act contribute to the formation of general international law;
or an omission or a combination of acts and omissions; it customary law may assist in the interpretation of treaties;
may involve the passage of legislation, or specific admin- an obligation contained in a treaty may be applicable to a
istrative or other action in a given case, or even a threat State by reason of its unilateral act, and so on. Thus, in-
of such action, whether or not the threat is carried out, ternational courts and tribunals have treated responsibility
or a final judicial decision. It may require the provision as arising for a State by reason of any “violation of a duty
of facilities, or the taking of precautions or the enforce- imposed by an international juridical standard”.198 In the
ment of a prohibition. In every case, it is by comparing “Rainbow Warrior” arbitration, the tribunal said that “any
the conduct in fact engaged in by the State with the con- violation by a State of any obligation, of whatever ori-
duct legally prescribed by the international obligation that gin, gives rise to State responsibility and consequently, to
one can determine whether or not there is a breach of that the duty of reparation”.199 In the Gabčíkovo-Nagymaros
obligation. The phrase “is not in conformity with” is flex- Project case, ICJ referred to the relevant draft article pro-
ible enough to cover the many different ways in which an visionally adopted by the Commission in 1976 in support
obligation can be expressed, as well as the various forms of the proposition that it is “well established that, when a
which a breach may take. State has committed an internationally wrongful act, its
international responsibility is likely to be involved what-
(3) Article 12 states that there is a breach of an interna- ever the nature of the obligation it has failed to respect”.200
tional obligation when the act in question is not in con-
formity with what is required by that obligation “regard- (5) Thus, there is no room in international law for a dis-
less of its origin”. As this phrase indicates, the articles tinction, such as is drawn by some legal systems, between
are of general application. They apply to all international the regime of responsibility for breach of a treaty and for
obligations of States, whatever their origin may be. In- breach of some other rule, i.e. for responsibility arising
ternational obligations may be established by a custom- ex contractu or ex delicto. In the “Rainbow Warrior” ar-
ary rule of international law, by a treaty or by a general bitration, the tribunal affirmed that “in the field of inter-
principle applicable within the international legal order. national law there is no distinction between contractual
States may assume international obligations by a unilater- and tortious responsibility”.201 As far as the origin of the
al act.196 An international obligation may arise from pro- obligation breached is concerned, there is a single general
visions stipulated in a treaty (a decision of an organ of an regime of State responsibility. Nor does any distinction
international organization competent in the matter, a judg- exist between the “civil” and “criminal” responsibility as
ment given between two States by ICJ or another tribunal, is the case in internal legal systems.
etc.). It is unnecessary to spell out these possibilities in
article 12, since the responsibility of a State is engaged (6) State responsibility can arise from breaches of bi-
by the breach of an international obligation whatever the lateral obligations or of obligations owed to some States
particular origin of the obligation concerned. The formula
“regardless of its origin” refers to all possible sources of 19 ICJ has recognized “[t]he existence of identical rules in inter-
international obligations, that is to say, to all processes for national treaty law and customary law” on a number of occasions,
creating legal obligations recognized by international law. Military and Paramilitary Activities in and against Nicaragua
The word “source” is sometimes used in this context, as in (see footnote 36 above), p. 95, para. 177; see also North Sea Continen-
tal Shelf, Judgment, I.C.J. Reports 1969, p. 3, at pp. 38–39, para. 63.
the preamble to the Charter of the United Nations which 19 Dickson Car Wheel Company (see footnote 42 above); cf. the
stresses the need to respect “the obligations arising from Goldenberg case, UNRIAA, vol. II (Sales No. 1949.V.1), p. 901, at
treaties and other sources of international law”. The word pp. 908–909 (1928); International Fisheries Company (footnote 43
above), p. 701 (“some principle of international law”); and Armstrong
19 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 46, Cork Company (footnote 45 above), p. 163 (“any rule whatsoever of
para. 57. international law”).
19 ELSI (see footnote 85 above), p. 50, para. 70. 199 “Rainbow Warrior” (see footnote 46 above), p. 251, para. 75.
196 Thus, France undertook by a unilateral act not to engage in See also Barcelona Traction (footnote 25 above), p. 46, para. 86
(“breach of an international obligation arising out of a treaty or a
further atmospheric nuclear testing: Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 253; Nuclear Tests (New Zealand general rule of law”).
00 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 38,
v. France), ibid., p. 457. The extent of the obligation thereby under-
taken was clarified in Request for an Examination of the Situation in para. 47. The qualification “likely to be involved” may have been
Accordance with Paragraph 63 of the Court’s Judgment of 20 Decem- inserted because of possible circumstances precluding wrongfulness in
ber 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of that case.
22 September 1995, I.C.J. Reports 1995, p. 288. 01 “Rainbow Warrior” (see footnote 46 above), p. 251, para. 75.
279
Annex 13
or to the international community as a whole. It can in- the subject matter of the obligation breached.205 Courts
volve relatively minor infringements as well as the most and tribunals have consistently affirmed the principle that
serious breaches of obligations under peremptory norms there is no a priori limit to the subject matters on which
of general international law. Questions of the gravity of States may assume international obligations. Thus, PCIJ
the breach and the peremptory character of the obligation stated in its first judgment, in the S.S. “Wimbledon” case,
breached can affect the consequences which arise for the that “the right of entering into international engagements
responsible State and, in certain cases, for other States is an attribute of State sovereignty”.206 That proposition
also. Certain distinctions between the consequences of has often been endorsed.207
certain breaches are accordingly drawn in Parts Two and
Three of these articles.202 But the regime of State respon- (10) In a similar perspective, it has sometimes been
sibility for breach of an international obligation under Part argued that an obligation dealing with a certain subject
One is comprehensive in scope, general in character and matter could only have been breached by conduct of the
flexible in its application: Part One is thus able to cover same description. That proposition formed the basis of an
the spectrum of possible situations without any need for objection to the jurisdiction of ICJ in the Oil Platforms
further distinctions between categories of obligation con- case. It was argued that a treaty of friendship, commerce
cerned or the category of the breach. and navigation could not in principle have been breached
by conduct involving the use of armed force. The Court
responded in the following terms:
(7) Even fundamental principles of the international le-
gal order are not based on any special source of law or The Treaty of 1955 imposes on each of the Parties various obligations
specific law-making procedure, in contrast with rules of on a variety of matters. Any action by one of the Parties that is incom-
constitutional character in internal legal systems. In ac- patible with those obligations is unlawful, regardless of the means by
cordance with article 53 of the 1969 Vienna Convention, which it is brought about. A violation of the rights of one party under
a peremptory norm of general international law is one the Treaty by means of the use of force is as unlawful as would be
a violation by administrative decision or by any other means. Matters
which is “accepted and recognized by the international relating to the use of force are therefore not per se excluded from the
community of States as a whole as a norm from which no reach of the Treaty of 1955.0
derogation is permitted and which can be modified only
by a subsequent norm of general international law hav- Thus, the breach by a State of an international obligation
ing the same character”. Article 53 recognizes both that constitutes an internationally wrongful act, whatever the
norms of a peremptory character can be created and that subject matter or content of the obligation breached, and
the States have a special role in this regard as par excel- whatever description may be given to the non-conforming
lence the holders of normative authority on behalf of the conduct.
international community. Moreover, obligations imposed
on States by peremptory norms necessarily affect the vital (11) Article 12 also states that there is a breach of an
interests of the international community as a whole and international obligation when the act in question is not
may entail a stricter regime of responsibility than that ap- in conformity with what is required by that obligation,
plied to other internationally wrongful acts. But this is “regardless of its … character”. In practice, various clas-
an issue belonging to the content of State responsibility.203 sifications of international obligations have been adopted.
So far at least as Part One of the articles is concerned, For example, a distinction is commonly drawn between
there is a unitary regime of State responsibility which is obligations of conduct and obligations of result. That dis-
general in character. tinction may assist in ascertaining when a breach has oc-
curred. But it is not exclusive,209 and it does not seem to
bear specific or direct consequences as far as the present
(8) Rather similar considerations apply with respect to articles are concerned. In the Colozza case, for example,
obligations arising under the Charter of the United Na- the European Court of Human Rights was concerned with
tions. Since the Charter is a treaty, the obligations it con- the trial in absentia of a person who, without actual notice
tains are, from the point of view of their origin, treaty of his trial, was sentenced to six years’ imprisonment and
obligations. The special importance of the Charter, as re- was not allowed subsequently to contest his conviction.
flected in its Article 103,204 derives from its express pro-
visions as well as from the virtually universal member- 0 See, e.g., Factory at Chorzów, Jurisdiction (footnote 34 above);
ship of States in the United Nations. Factory at Chorzów, Merits (ibid.); and Reparation for Injuries
(footnote 38 above). In these decisions it is stated that “any breach
of an international engagement” entails international responsibility.
(9) The general scope of the articles extends not only to See also Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania (footnote 39 above), p. 228.
the conventional or other origin of the obligation breached 06 S.S. “Wimbledon” (see footnote 34 above), p. 25.
but also to its subject matter. International awards and 0 See, e.g., Nottebohm, Second Phase, Judgment, I.C.J. Reports
decisions specifying the conditions for the existence of 1955, p. 4, at pp. 20–21; Right of Passage over Indian Territory, Merits,
an internationally wrongful act speak of the breach of an Judgment, I.C.J. Reports 1960, p. 6, at p. 33; and Military and Para-
international obligation without placing any restriction on military Activities in and against Nicaragua (footnote 36 above),
p. 131, para. 259.
0 See Part Three, chapter II and commentary; see also article 48 0 Oil Platforms (Islamic Republic of Iran v. United States of Amer-
and commentary. ica), Preliminary Objection, Judgment, I.C.J. Reports 1996, p. 803, at
0 See articles 40 and 41 and commentaries. pp. 811–812, para. 21.
0 According to which “[i]n the event of a conflict between the 09 Cf. Gabčíkovo-Nagymaros Project (footnote 27 above), p. 77,
obligations of the Members of the United Nations under the present para. 135, where the Court referred to the parties having accepted
Charter and their obligations under any other international agreement, “obligations of conduct, obligations of performance, and obligations
their obligations under the present Charter shall prevail”. of result”.
280
Annex 13
He claimed that he had not had a fair hearing, contrary legislature itself being an organ of the State for the pur-
to article 6, paragraph 1, of the European Convention on poses of the attribution of responsibility.216 In other cir-
Human Rights. The Court noted that: cumstances, the enactment of legislation may not in and
The Contracting States enjoy a wide discretion as regards the choice of
of itself amount to a breach,217 especially if it is open to
the means calculated to ensure that their legal systems are in compli- the State concerned to give effect to the legislation in a
ance with the requirements of article 6 § 1 in this field. The Court’s task way which would not violate the international obligation
is not to indicate those means to the States, but to determine whether in question. In such cases, whether there is a breach will
the result called for by the Convention has been achieved ... For this to depend on whether and how the legislation is given ef-
be so, the resources available under domestic law must be shown to be
effective and a person “charged with a criminal offence” ... must not be fect.218
left with the burden of proving that he was not seeking to evade justice
or that his absence was due to force majeure.10
Article 13. International obligation in force for a State
The Court thus considered that article 6, paragraph 1,
imposed an obligation of result.211 But, in order to de- An act of a State does not constitute a breach of an
cide whether there had been a breach of the Convention international obligation unless the State is bound by
in the circumstances of the case, it did not simply com- the obligation in question at the time the act occurs.
pare the result required (the opportunity for a trial in the
accused’s presence) with the result practically achieved
(the lack of that opportunity in the particular case). Rather, Commentary
it examined what more Italy could have done to make the
applicant’s right “effective”.212 The distinction between (1) Article 13 states the basic principle that, for respon-
obligations of conduct and result was not determinative sibility to exist, the breach must occur at a time when the
of the actual decision that there had been a breach of ar- State is bound by the obligation. This is but the application
ticle 6, paragraph 1.213 in the field of State responsibility of the general principle
of intertemporal law, as stated by Judge Huber in another
(12) The question often arises whether an obligation is context in the Island of Palmas case:
breached by the enactment of legislation by a State, in [A] juridical fact must be appreciated in the light of the law contempo-
cases where the content of the legislation prima facie con- rary with it, and not of the law in force at the time when a dispute in
flicts with what is required by the international obligation, regard to it arises or falls to be settled.19
or whether the legislation has to be implemented in the
given case before the breach can be said to have occurred. Article 13 provides an important guarantee for States in
Again, no general rule can be laid down that is applicable terms of claims of responsibility. Its formulation (“does
to all cases.214 Certain obligations may be breached by the not constitute … unless …”) is in keeping with the idea of
mere passage of incompatible legislation.215 Where this a guarantee against the retrospective application of inter-
is so, the passage of the legislation without more entails national law in matters of State responsibility.
the international responsibility of the enacting State, the
(2) International tribunals have applied the principle
10 Colozza v. Italy, Eur. Court H.R., Series A, No. 89 (1985),
stated in article 13 in many cases. An instructive example
pp. 15–16, para. 30, citing De Cubber v. Belgium, ibid., No. 86 (1984), is provided by the decision of Umpire Bates of the United
p. 20, para. 35.
11 Cf. Plattform “Ärzte für das Leben” v. Austria, in which the States-Great Britain Mixed Commission concerning the
Court gave the following interpretation of article 11: 16 See article 4 and commentary. For illustrations, see, e.g., the
“While it is the duty of Contracting States to take reasonable and findings of the European Court of Human Rights in Norris v. Ireland,
appropriate measures to enable lawful demonstrations to proceed Eur. Court H.R., Series A, No. 142, para. 31 (1988), citing Klass and
peacefully, they cannot guarantee this absolutely and they have a Others v. Germany, ibid., No. 28, para. 33 (1978); Marckx v. Bel-
wide discretion in the choice of the means to be used … In this area gium, ibid., No. 31, para. 27 (1979); Johnston and Others v. Ireland,
the obligation they enter into under article 11 of the Convention ibid., No. 112, para. 42 (1986); Dudgeon v. the United Kingdom, ibid.,
is an obligation as to measures to be taken and not as to results to No. 45, para. 41 (1981); and Modinos v. Cyprus, ibid., No. 259, para.
be achieved” (Eur. Court H.R., Series A, No. 139, p. 12, para. 34 24 (1993). See also International responsibility for the promulgation
(1988)). and enforcement of laws in violation of the Convention (arts. 1 and 2
In the Colozza case (see footnote 210 above), the Court used similar American Convention on Human Rights), Advisory Opinion OC–14/94,
language but concluded that the obligation was an obligation of result. Inter-American Court of Human Rights, Series A, No. 14 (1994).
Cf. C. Tomuschat, “What is a ‘breach’ of the European Convention on The Inter-American Court also considered it possible to determine
Human Rights?”, The Dynamics of the Protection of Human Rights whether draft legislation was compatible with the provisions of human
in Europe: Essays in Honour of Henry G. Schermers, Lawson and rights treaties: Restrictions to the Death Penalty (arts. 4(2) and 4(4)
de Blois, eds. (Dordrecht, Martinus Nijhoff, 1994), vol. 3, p. 315, at American Convention on Human Rights), Advisory Opinion OC–3/83,
p. 328. Series A, No. 3 (1983).
1 Colozza case (see footnote 210 above), para. 28. 1 As ICJ held in LaGrand, Judgment (see footnote 119 above),
1 See also The Islamic Republic of Iran v. The United States of p. 497, paras. 90–91.
America, cases A15 (IV) and A24, Iran-U.S. C.T.R., vol. 32, p. 115 1 See, e.g., WTO, Report of the Panel (footnote 73 above),
(1996). paras. 7.34–7.57.
1 Cf. Applicability of the Obligation to Arbitrate under Section 21 19 Island of Palmas (Netherlands/United States of America),
of the United Nations Headquarters Agreement of 26 June 1947 (foot- UNRIAA, vol. II (Sales No. 1949.V.1), p. 829, at p. 845 (1928).
note 83 above), p. 30, para. 42. Generally on intertemporal law, see resolution I adopted in 1975 by
1 A uniform law treaty will generally be construed as requiring im- the Institute of International Law at its Wiesbaden session, Annuaire
mediate implementation, i.e. as embodying an obligation to make the de l’Institut de droit international, vol. 56 (1975), pp. 536–540; for
provisions of the uniform law a part of the law of each State party: the debate, ibid., pp. 339–374; for M. Sørensen’s reports, ibid., vol. 55
see, e.g., B. Conforti, “Obblighi di mezzi e obblighi di risultato nelle (1973), pp. 1–116. See further W. Karl, “The time factor in the law of
convenzioni di diritto uniforme”, Rivista di diritto internazionale State responsibility”, Spinedi and Simma, eds., op. cit. (footnote 175
privato e processuale, vol. 24 (1988), p. 233. above), p. 95.
281
Annex 13
conduct of British authorities who had seized United States sis of the obligations in force at the time when the act was
vessels engaged in the slave trade and freed slaves belong- performed.226
ing to United States nationals. The incidents referred to
the Commission had taken place at different times and the (5) State responsibility can extend to acts of the utmost
umpire had to determine whether, at the time each inci- seriousness, and the regime of responsibility in such cases
dent took place, slavery was “contrary to the law of na- will be correspondingly stringent. But even when a new
tions”. Earlier incidents, dating back to a time when the peremptory norm of general international law comes
slave trade was considered lawful, amounted to a breach into existence, as contemplated by article 64 of the 1969
on the part of the British authorities of the international Vienna Convention, this does not entail any retrospective
obligation to respect and protect the property of foreign assumption of responsibility. Article 71, paragraph 2 (b),
nationals.220 The later incidents occurred when the slave provides that such a new peremptory norm “does not af-
trade had been “prohibited by all civilized nations” and fect any right, obligation or legal situation of the parties
did not involve the responsibility of Great Britain.221 created through the execution of the treaty prior to its ter-
mination, provided that those rights, obligations or situa-
(3) Similar principles were applied by Arbitrator As- tions may thereafter be maintained only to the extent that
ser in deciding whether the seizure and confiscation by their maintenance is not in itself in conflict with the new
Russian authorities of United States vessels engaged in peremptory norm”.
seal hunting outside Russia’s territorial waters should be
considered internationally wrongful. In his award in the (6) Accordingly, it is appropriate to apply the intertem-
“James Hamilton Lewis” case, he observed that the ques- poral principle to all international obligations, and arti-
tion had to be settled “according to the general principles cle 13 is general in its application. It is, however, with-
of the law of nations and the spirit of the international out prejudice to the possibility that a State may agree
agreements in force and binding upon the two High Par- to compensate for damage caused as a result of conduct
ties at the time of the seizure of the vessel”.222 Since, un- which was not at the time a breach of any international
der the principles in force at the time, Russia had no right obligation in force for that State. In fact, cases of the ret-
to seize the United States vessel, the seizure and confisca- rospective assumption of responsibility are rare. The lex
tion of the vessel were unlawful acts for which Russia was specialis principle (art. 55) is sufficient to deal with any
required to pay compensation.223 The same principle has such cases where it may be agreed or decided that respon-
consistently been applied by the European Commission sibility will be assumed retrospectively for conduct which
and the European Court of Human Rights to deny claims was not a breach of an international obligation at the time
relating to periods during which the European Conven- it was committed.227
tion on Human Rights was not in force for the State con-
(7) In international law, the principle stated in article
cerned.224
13 is not only a necessary but also a sufficient basis for
(4) State practice also supports the principle. A require- responsibility. In other words, once responsibility has ac-
ment that arbitrators apply the rules of international law crued as a result of an internationally wrongful act, it is
in force at the time when the alleged wrongful acts took not affected by the subsequent termination of the obliga-
place is a common stipulation in arbitration agreements,225 tion, whether as a result of the termination of the treaty
and undoubtedly is made by way of explicit confirma- which has been breached or of a change in international
tion of a generally recognized principle. International law law. Thus, as ICJ said in the Northern Cameroons case:
writers who have dealt with the question recognize that [I]f during the life of the Trusteeship the Trustee was responsible for
the wrongfulness of an act must be established on the ba- some act in violation of the terms of the Trusteeship Agreement which
resulted in damage to another Member of the United Nations or to one
0 See the “Enterprize” case, Lapradelle-Politis (footnote 139 of its nationals, a claim for reparation would not be liquidated by the
above), vol. I, p. 703 (1855); and Moore, History and Digest, termination of the Trust.
vol. IV, p. 4349, at p. 4373. See also the “Hermosa” and “Créole” cas-
es, Lapradelle-Politis, op. cit., p. 704 (1855); and Moore, History and Similarly, in the “Rainbow Warrior” arbitration, the ar-
Digest, vol. IV, pp. 4374–4375. bitral tribunal held that, although the relevant treaty obli-
1 See the “Lawrence” case, Lapradelle-Politis, op. cit., p. 741; and
Moore, History and Digest, vol. III, p. 2824. See also the “Volusia” 6 See, e.g., P. Tavernier, Recherches sur l’application dans le temps
case, Lapradelle-Politis, op. cit., p. 741.
Affaire des navires Cape Horn Pigeon, James Hamilton Lewis,
des actes et des règles en droit international public: problèmes de droit
intertemporel ou de droit transitoire (Paris, Librairie générale de droit
C. H. White et Kate and Anna, UNRIAA, vol. IX (Sales No. 59.V.5), et de jurisprudence, 1970), pp. 119, 135 and 292; D. Bindschedler-Rob-
p. 66, at p. 69 (1902). ert, “De la rétroactivité en droit international public”, Recueil d’études
See also the “C. H. White” case, ibid., p. 74. In these cases the ar- de droit international en hommage à Paul Guggenheim (University of
bitrator was required by the arbitration agreement itself to apply the law Geneva Law Faculty/Graduate Institute of International Studies, 1968),
in force at the time the acts were performed. Nevertheless, the inten- p. 184; M. Sørensen, “Le problème intertemporel dans l’application de
tion of the parties was clearly to confirm the application of the general la Convention européenne des droits de l’homme”, Mélanges offerts
principle in the context of the arbitration agreement, not to establish à Polys Modinos (Paris, Pedone, 1968), p. 304; T. O. Elias, “The doc-
an exception. See further the S.S. “Lisman” case, ibid., vol. III (Sales trine of intertemporal law”, AJIL, vol. 74, No. 2 (April 1980), p. 285;
No. 1949.V.2), p. 1767, at p. 1771 (1937). and R. Higgins, “Time and the law: international perspectives on an
See, e.g., X v. Germany, application No. 1151/61, Council of old problem”, International and Comparative Law Quarterly, vol. 46
Europe, European Commission of Human Rights, Recueil des déci- (July 1997), p. 501.
sions, No. 7 (March 1962), p. 119 (1961) and many later decisions. As to the retroactive effect of the acknowledgement and adop-
See, e.g., Declarations exchanged between the Government of tion of conduct by a State, see article 11 and commentary, especially
the United States of America and the Imperial Government of Rus- paragraph (4). Such acknowledgement and adoption would not, without
sia, for the submission to arbitration of certain disputes concerning the more, give retroactive effect to the obligations of the adopting State.
international responsibility of Russia for the seizure of American ships, Northern Cameroons, Preliminary Objections, Judgment, I.C.J.
UNRIAA, vol. IX (Sales No. 59.V.5), p. 57 (1900). Reports 1963, p. 15, at p. 35.
282
Annex 13
gation had terminated with the passage of time, France’s Article 14. Extension in time of the breach
responsibility for its earlier breach remained.229 of an international obligation
(8) Both aspects of the principle are implicit in the ICJ 1. The breach of an international obligation by an
decision in the Certain Phosphate Lands in Nauru case. act of a State not having a continuing character occurs
Australia argued there that a State responsibility claim re- at the moment when the act is performed, even if its
lating to the period of its joint administration of the Trust effects continue.
Territory for Nauru (1947–1968) could not be brought 2. The breach of an international obligation by an
decades later, even if the claim had not been formally act of a State having a continuing character extends
waived. The Court rejected the argument, applying a lib- over the entire period during which the act continues
eral standard of laches or unreasonable delay.230 But it and remains not in conformity with the international
went on to say that: obligation.
[I]t will be for the Court, in due time, to ensure that Nauru’s delay in 3. The breach of an international obligation re-
seising [sic] it will in no way cause prejudice to Australia with regard to quiring a State to prevent a given event occurs when
both the establishment of the facts and the determination of the content
of the applicable law.1 the event occurs and extends over the entire period
during which the event continues and remains not in
conformity with that obligation.
Evidently, the Court intended to apply the law in force at
the time the claim arose. Indeed that position was neces-
sarily taken by Nauru itself, since its claim was based on Commentary
a breach of the Trusteeship Agreement, which terminated
at the date of its accession to independence in 1968. Its (1) The problem of identifying when a wrongful act
claim was that the responsibility of Australia, once en- begins and how long it continues is one which arises
gaged under the law in force at a given time, continued frequently236 and has consequences in the field of State
to exist even if the primary obligation had subsequently responsibility, including the important question of cessa-
terminated.232 tion of continuing wrongful acts dealt with in article 30.
Although the existence and duration of a breach of an
international obligation depends for the most part on the
(9) The basic principle stated in article 13 is thus well existence and content of the obligation and on the facts
established. One possible qualification concerns the proof the particular breach, certain basic concepts are estab-
gressive interpretation of obligations, by a majority of lished. These are introduced in article 14. Without seeking
the Court in the Namibia case.233 But the intertemporal to be comprehensive in its treatment of the problem, arti-
principle does not entail that treaty provisions are to be cle 14 deals with several related questions. In particular, it
interpreted as if frozen in time. The evolutionary interpre- develops the distinction between breaches not extending
tation of treaty provisions is permissible in certain cases,234 in time and continuing wrongful acts (see paragraphs (1)
but this has nothing to do with the principle that a State and (2) respectively), and it also deals with the application
can only be held responsible for breach of an obligation of that distinction to the important case of obligations of
which was in force for that State at the time of its conduct. prevention. In each of these cases it takes into account
Nor does the principle of the intertemporal law mean that the question of the continuance in force of the obligation
facts occurring prior to the entry into force of a particular breached.
obligation may not be taken into account where these are
otherwise relevant. For example, in dealing with the obli-
gation to ensure that persons accused are tried without un- (2) Internationally wrongful acts usually take some time
due delay, periods of detention prior to the entry into force to happen. The critical distinction for the purpose of ar-
of that obligation may be relevant as facts, even though no ticle 14 is between a breach which is continuing and one
compensation could be awarded in respect of the period which has already been completed. In accordance with
prior to the entry into force of the obligation.235 paragraph 1, a completed act occurs “at the moment
when the act is performed”, even though its effects or
9 “Rainbow Warrior” (see footnote 46 above), pp. 265–266. consequences may continue. The words “at the moment”
0 Certain Phosphate Lands in Nauru (Nauru v. Australia), Prelimi- are intended to provide a more precise description of the
nary Objections, Judgment, I.C.J. Reports 1992, p. 240, at pp. 253–255, time frame when a completed wrongful act is performed,
paras. 31–36. See article 45, subparagraph (b), and commentary.
1 Certain Phosphate Lands in Nauru, ibid., p. 255, para. 36. 6 See, e.g., Mavrommatis Palestine Concessions, Judgment No. 2,
The case was settled before the Court had the opportunity to con- 1924, P.C.I.J., Series A, No. 2, p. 35; Phosphates in Morocco (foot-
sider the merits: Certain Phosphate Lands in Nauru, Order of 13 Sep- note 34 above), pp. 23–29; Electricity Company of Sofia and Bulgar-
tember 1993, I.C.J. Reports 1993, p. 322; for the settlement agreement, ia, Judgment, 1939, P.C.I.J., Series A/B, No. 77, p. 64, at pp. 80–82;
see Agreement between Australia and the Republic of Nauru for the and Right of Passage over Indian Territory (footnote 207 above),
Settlement of the Case in the International Court of Justice concerning pp. 33–36. The issue has often been raised before the organs of the
Certain Phosphate Lands in Nauru (Nauru, 10 August 1993) (United European Convention on Human Rights. See, e. g., the decision of the
Nations, Treaty Series, vol. 1770, No. 30807, p. 379). European Commission of Human Rights in the De Becker v. Belgium
Namibia case (see footnote 176 above), pp. 31–32, para. 53. case, application No. 214/56, Yearbook of the European Convention on
See, e.g., Tyrer v. the United Kingdom, Eur. Court H.R., Series A,
Human Rights, 1958–1959, p. 214, at pp. 234 and 244; and the Court’s
judgments in Ireland v. the United Kingdom, Eur. Court H.R., Series
No. 26, pp. 15–16 (1978). A, No. 25, p. 64 (1978); Papamichalopoulos and Others v. Greece,
235 See, e.g., Zana v. Turkey, Eur. Court H.R., Reports, 1997–VII, ibid., No. 260–B, para. 40 (1993); and Agrotexim and Others v. Greece,
p. 2533 (1997); and J. Pauwelyn, “The concept of a ‘continuing viola- ibid., No. 330–A, p. 22, para. 58 (1995). See also E. Wyler, “Quelques
tion’ of an international obligation: selected problems”, BYBIL, 1995, réflexions sur la réalisation dans le temps du fait internationalement
vol. 66, p. 415, at pp. 443–445. illicite”, RGDIP, vol. 95, p. 881 (1991).
283
Annex 13
without requiring that the act necessarily be completed in consequences are the subject of the secondary obligations
a single instant. of reparation, including restitution, as required by Part
Two of the articles. The prolongation of such effects will
(3) In accordance with paragraph 2, a continuing be relevant, for example, in determining the amount of
wrongful act, on the other hand, occupies the entire pe- compensation payable. They do not, however, entail that
riod during which the act continues and remains not in the breach itself is a continuing one.
conformity with the international obligation, provided
that the State is bound by the international obligation dur- (7) The notion of continuing wrongful acts is common
ing that period.237 Examples of continuing wrongful acts to many national legal systems and owes its origins in
include the maintenance in effect of legislative provisions international law to Triepel.241 It has been repeatedly re-
incompatible with treaty obligations of the enacting State, ferred to by ICJ and by other international tribunals. For
unlawful detention of a foreign official or unlawful oc- example, in the United States Diplomatic and Consular
cupation of embassy premises, maintenance by force of Staff in Tehran case, the Court referred to “successive and
colonial domination, unlawful occupation of part of the still continuing breaches by Iran of its obligations to the
territory of another State or stationing armed forces in an- United States under the Vienna Conventions of 1961 and
other State without its consent. 1963”.242
(4) Whether a wrongful act is completed or has a con-
tinuing character will depend both on the primary obli- (8) The consequences of a continuing wrongful act
gation and the circumstances of the given case. For ex- will depend on the context, as well as on the duration
ample, the Inter-American Court of Human Rights has of the obligation breached. For example, the “Rainbow
interpreted forced or involuntary disappearance as a con- Warrior” arbitration involved the failure of France to de-
tinuing wrongful act, one which continues for as long as tain two agents on the French Pacific island of Hao for a
the person concerned is unaccounted for.238 The question period of three years, as required by an agreement between
whether a wrongful taking of property is a completed or France and New Zealand. The arbitral tribunal referred
continuing act likewise depends to some extent on the con- with approval to the Commission’s draft articles (now
tent of the primary rule said to have been violated. Where amalgamated in article 14) and to the distinction between
an expropriation is carried out by legal process, with the instantaneous and continuing wrongful acts, and said:
consequence that title to the property concerned is trans- Applying this classification to the present case, it is clear that the
ferred, the expropriation itself will then be a completed breach consisting in the failure of returning to Hao the two agents has
act. The position with a de facto, “creeping” or disguised been not only a material but also a continuous breach. And this clas-
occupation, however, may well be different.239 Exception- sification is not purely theoretical, but, on the contrary, it has practical
consequences, since the seriousness of the breach and its prolongation
ally, a tribunal may be justified in refusing to recognize a in time cannot fail to have considerable bearing on the establishment
law or decree at all, with the consequence that the result- of the reparation which is adequate for a violation presenting these two
ing denial of status, ownership or possession may give rise features.
to a continuing wrongful act.240
The tribunal went on to draw further legal consequences
(5) Moreover, the distinction between completed and from the distinction in terms of the duration of French
continuing acts is a relative one. A continuing wrongful obligations under the agreement.244
act itself can cease: thus a hostage can be released, or the
body of a disappeared person returned to the next of kin. (9) The notion of continuing wrongful acts has also been
In essence, a continuing wrongful act is one which has applied by the European Court of Human Rights to estab-
been commenced but has not been completed at the rel- lish its jurisdiction ratione temporis in a series of cases.
evant time. Where a continuing wrongful act has ceased, The issue arises because the Court’s jurisdiction may be
for example by the release of hostages or the withdrawal limited to events occurring after the respondent State be-
of forces from territory unlawfully occupied, the act is came a party to the Convention or the relevant Protocol
considered for the future as no longer having a continu- and accepted the right of individual petition. Thus, in the
ing character, even though certain effects of the act may Papamichalopoulos case, a seizure of property not in-
continue. In this respect, it is covered by paragraph 1 of volving formal expropriation occurred some eight years
article 14. before Greece recognized the Court’s competence. The
Court held that there was a continuing breach of the right
(6) An act does not have a continuing character mere- to peaceful enjoyment of property under article 1 of the
ly because its effects or consequences extend in time. Protocol to the European Convention on Human Rights,
It must be the wrongful act as such which continues. In
many cases of internationally wrongful acts, their conse- 241 H. Triepel, Völkerrecht und Landesrecht (Leipzig, Hirschfeld,
quences may be prolonged. The pain and suffering caused 1899), p. 289. The concept was subsequently taken up in various
by earlier acts of torture or the economic effects of the general studies on State responsibility as well as in works on the inter-
pretation of the formula “situations or facts prior to a given date” used
expropriation of property continue even though the tor- in some declarations of acceptance of the compulsory jurisdiction of
ture has ceased or title to the property has passed. Such ICJ.
242 United States Diplomatic and Consular Staff in Tehran (see
237
See article 13 and commentary, especially para. (2). footnote 59 above), p. 37, para. 80. See also pages 36–37, paras. 78–
238
Blake, Inter-American Court of Human Rights, Series C, No. 36, 79.
para. 67 (1998). “Rainbow Warrior” (see footnote 46 above), p. 264, para. 101.
239 Papamichalopoulos (see footnote 236 above). 244 Ibid., pp. 265–266, paras. 105–106. But see the separate opinion
240 Loizidou, Merits (see footnote 160 above), p. 2216. of Sir Kenneth Keith, ibid., pp. 279–284.
284
Annex 13
which continued after the Protocol had come into force; it constituted) a breach at that time, can continue and give
accordingly upheld its jurisdiction over the claim.245 rise to a continuing wrongful act in the present. Moreover,
this continuing character can have legal significance for
(10) In the Loizidou case,246 similar reasoning was various purposes, including State responsibility. For ex-
applied by the Court to the consequences of the Turk- ample, the obligation of cessation contained in article 30
ish invasion of Cyprus in 1974, as a result of which the applies to continuing wrongful acts.
applicant was denied access to her property in northern
Cyprus. Turkey argued that under article 159 of the Con- (13) A question common to wrongful acts whether com-
stitution of the Turkish Republic of Northern Cyprus pleted or continuing is when a breach of international law
of 1985, the property in question had been expropri- occurs, as distinct from being merely apprehended or im-
ated, and this had occurred prior to Turkey’s acceptance minent. As noted in the context of article 12, that question
of the Court’s jurisdiction in 1990. The Court held that, can only be answered by reference to the particular pri-
in accordance with international law and having regard mary rule. Some rules specifically prohibit threats of con-
to the relevant Security Council resolutions, it could not duct,249 incitement or attempt,250 in which case the threat,
attribute legal effect to the 1985 Constitution so that the incitement or attempt is itself a wrongful act. On the other
expropriation was not completed at that time and the prop- hand, where the internationally wrongful act is the oc-
erty continued to belong to the applicant. The conduct of currence of some event—e.g. the diversion of an interna-
the Turkish Republic and of Turkish troops in denying the tional river—mere preparatory conduct is not necessarily
applicant access to her property continued after Turkey’s wrongful.251 In the Gabčíkovo-Nagymaros Project case,
acceptance of the Court’s jurisdiction, and constituted a the question was when the diversion scheme (“Variant C”)
breach of article 1 of the Protocol to the European Con- was put into effect. ICJ held that the breach did not occur
vention on Human Rights after that time.247 until the actual diversion of the Danube. It noted:
that between November 1991 and October 1992, Czechoslovakia con-
(11) The Human Rights Committee has likewise en- fined itself to the execution, on its own territory, of the works which
dorsed the idea of continuing wrongful acts. For exam- were necessary for the implementation of Variant C, but which could
ple, in Lovelace, it held it had jurisdiction to examine the have been abandoned if an agreement had been reached between the
continuing effects for the applicant of the loss of her sta- parties and did not therefore predetermine the final decision to be taken.
For as long as the Danube had not been unilaterally dammed, Variant C
tus as a registered member of an Indian group, although had not in fact been applied.
the loss had occurred at the time of her marriage in 1970
and Canada only accepted the Committee’s jurisdiction in Such a situation is not unusual in international law or, for that mat-
ter, in domestic law. A wrongful act or offence is frequently preceded by
1976. The Committee noted that it was: preparatory actions which are not to be confused with the act or offence
not competent, as a rule, to examine allegations relating to events hav- itself. It is as well to distinguish between the actual commission of a
ing taken place before the entry into force of the Covenant and the wrongful act (whether instantaneous or continuous) and the conduct
Optional Protocol … In the case of Sandra Lovelace it follows that the prior to that act which is of a preparatory character and which “does not
Committee is not competent to express any view on the original cause qualify as a wrongful act”.
of her loss of Indian status … at the time of her marriage in 1970 …
The Committee recognizes, however, that the situation may be dif-

Thus, the Court distinguished between the actual com-
ferent if the alleged violations, although relating to events occurring mission of a wrongful act and conduct of a preparatory
before 19 August 1976, continue, or have effects which themselves character. Preparatory conduct does not itself amount to a
constitute violations, after that date.
249 Notably, Article 2, paragraph 4, of the Charter of the United
It found that the continuing impact of Canadian legisla- Nations prohibits “the threat or use of force against the territorial
tion, in preventing Lovelace from exercising her rights integrity or political independence of any state”. For the question of
as a member of a minority, was sufficient to constitute a what constitutes a threat of force, see Legality of the Threat or Use of
Nuclear Weapons (footnote 54 above), pp. 246–247, paras. 47–48; see
breach of article 27 of the International Covenant on Civil also R. Sadurska, “Threats of force”, AJIL, vol. 82, No. 2 (April 1988),
and Political Rights after that date. Here the notion of a p. 239.
continuing breach was relevant not only to the Commit- 250 A particularly comprehensive formulation is that of article III
tee’s jurisdiction but also to the application of article 27 of the Convention on the Prevention and Punishment of the Crime of
as the most directly relevant provision of the Covenant to Genocide which prohibits conspiracy, direct and public incitement,
attempt and complicity in relation to genocide. See also article 2 of
the facts in hand. the International Convention for the Suppression of Terrorist Bombings
and article 2 of the International Convention for the Suppression of the
(12) Thus, conduct which has commenced some time in Financing of Terrorism.
the past, and which constituted (or, if the relevant primary 251 In some legal systems, the notion of “anticipatory breach” is used
rule had been in force for the State at the time, would have to deal with the definitive refusal by a party to perform a contractu-
al obligation, in advance of the time laid down for its performance.
245 Confronted with an anticipatory breach, the party concerned is entitled
See footnote 236 above.
246
to terminate the contract and sue for damages. See K. Zweigert and
Loizidou, Merits (see footnote 160 above), p. 2216. H. Kötz, Introduction to Comparative Law, 3rd rev. ed., trans. T. Weir
247 Ibid., pp. 2230–2232 and 2237–2238, paras. 41–47 and 63–64. (Oxford, Clarendon Press, 1998), p. 508. Other systems achieve similar
See, however, the dissenting opinion of Judge Bernhardt, p. 2242, results without using this concept, e.g. by construing a refusal to per-
para. 2 (with whom Judges Lopes Rocha, Jambrek, Pettiti, Baka and form in advance of the time for performance as a “positive breach of
Gölcüklü in substance agreed). See also Loizidou, Preliminary Objec- contract”, ibid., p. 494 (German law). There appears to be no equivalent
tions (footnote 160 above), pp. 33–34, paras. 102–105; and Cyprus in international law, but article 60, paragraph 3 (a), of the 1969 Vienna
v. Turkey, application No. 25781/94, judgement of 10 May 2001, Convention defines a material breach as including “a repudiation … not
Eur. Court H.R., Reports, 2001–IV. sanctioned by the present Convention”. Such a repudiation could occur
248 Lovelace v. Canada, Official Records of the General Assem- in advance of the time for performance.
bly, Thirty-sixth Session, Supplement No. 40 (A/36/40), annex XVIII, 252 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 54,
communication No. R.6/24, p. 172, paras. 10–11 (1981). para. 79, citing the draft commentary to what is now article 30.
285
Annex 13
breach if it does not “predetermine the final decision to be Commentary

taken”. Whether that is so in any given case will depend
on the facts and on the content of the primary obligation. (1) Within the basic framework established by the dis-
There will be questions of judgement and degree, which it tinction between completed and continuing acts in arti-
is not possible to determine in advance by the use of any cle 14, article 15 deals with a further refinement, viz. the
particular formula. The various possibilities are intended notion of a composite wrongful act. Composite acts give
to be covered by the use of the term “occurs” in para- rise to continuing breaches, which extend in time from the
graphs 1 and 3 of article 14. first of the actions or omissions in the series of acts mak-
ing up the wrongful conduct.
(14) Paragraph 3 of article 14 deals with the temporal (2) Composite acts covered by article 15 are limited to
dimensions of a particular category of breaches of inter- breaches of obligations which concern some aggregate of
national obligations, namely the breach of obligations conduct and not individual acts as such. In other words,
to prevent the occurrence of a given event. Obligations their focus is “a series of acts or omissions defined in ag-
of prevention are usually construed as best efforts obli- gregate as wrongful”. Examples include the obligations
gations, requiring States to take all reasonable or neces- concerning genocide, apartheid or crimes against human-
sary measures to prevent a given event from occurring, ity, systematic acts of racial discrimination, systematic
but without warranting that the event will not occur. The acts of discrimination prohibited by a trade agreement,
breach of an obligation of prevention may well be a con- etc. Some of the most serious wrongful acts in interna-
tional law are defined in terms of their composite charac-
tinuing wrongful act, although, as for other continuing
ter. The importance of these obligations in international
wrongful acts, the effect of article 13 is that the breach law justifies special treatment in article 15.256
only continues if the State is bound by the obligation for
the period during which the event continues and remains
not in conformity with what is required by the obligation. (3) Even though it has special features, the prohibition
For example, the obligation to prevent transboundary of genocide, formulated in identical terms in the Conven-
damage by air pollution, dealt with in the Trail Smelter tion on the Prevention and Punishment of the Crime of
Genocide and in later instruments,257 may be taken as an
arbitration,253 was breached for as long as the pollution illustration of a “composite” obligation. It implies that the
continued to be emitted. Indeed, in such cases the breach responsible entity (including a State) will have adopted a
may be progressively aggravated by the failure to suppress systematic policy or practice. According to article II, sub-
it. However, not all obligations directed to preventing an paragraph (a), of the Convention, the prime case of geno-
act from occurring will be of this kind. If the obligation cide is “[k]illing members of the [national, ethnical, racial
in question was only concerned to prevent the happening or religious] group” with the intent to destroy that group
of the event in the first place (as distinct from its continu- as such, in whole or in part. Both limbs of the definition
ation), there will be no continuing wrongful act.254 If the contain systematic elements. Genocide has also to be car-
obligation in question has ceased, any continuing conduct ried out with the relevant intention, aimed at physically
by definition ceases to be wrongful at that time.255 Both eliminating the group “as such”. Genocide is not commit-
qualifications are intended to be covered by the phrase ted until there has been an accumulation of acts of killing,
in paragraph 3, “and remains not in conformity with that causing harm, etc., committed with the relevant intent, so
obligation”. as to satisfy the definition in article II. Once that threshold
is crossed, the time of commission extends over the whole
period during which any of the acts was committed, and
any individual responsible for any of them with the rel-
Article 15. Breach consisting of a composite act
evant intent will have committed genocide.258
1. The breach of an international obligation by a (4) It is necessary to distinguish composite obliga-

State through a series of actions or omissions defined tions from simple obligations breached by a “composite”
in aggregate as wrongful occurs when the action or act. Composite acts may be more likely to give rise to
omission occurs which, taken with the other actions or
omissions, is sufficient to constitute the wrongful act. 256 See further J. J. A. Salmon, “Le fait étatique complexe: une
notion contestable”, Annuaire français de droit international, vol. 28
(1982), p. 709.
2. In such a case, the breach extends over the 257 See, e.g., article 4 of the statute of the International Tribunal for
entire period starting with the first of the actions or the Former Yugoslavia, originally published as an annex to document
omissions of the series and lasts for as long as these S/25704 and Add.1, approved by the Security Council in its resolu-
actions or omissions are repeated and remain not in tion 827 (1993) of 25 May 1993, and amended on 13 May 1998 by
resolution 1166 (1998) and on 30 November 2000 by resolution 1329
conformity with the international obligation. (2000); article 2 of the statute of the International Tribunal for Rwanda,
253 Trail Smelter, UNRIAA, vol. III (Sales No. 1949.V.2), p. 1905
approved by the Security Council in its resolution 955 (1994) of
8 November 1994; and article 6 of the Rome Statute of the International
(1938, 1941). Criminal Court.
254 An example might be an obligation by State A to prevent certain 258 The intertemporal principle does not apply to the Convention,
information from being published. The breach of such an obligation which according to its article I is declaratory. Thus, the obligation to
will not necessarily be of a continuing character, since it may be that prosecute relates to genocide whenever committed. See Application
once the information is published, the whole point of the obligation is of the Convention on the Prevention and Punishment of the Crime of
defeated. Genocide, Preliminary Objections (footnote 54 above), p. 617,
255 See the “Rainbow Warrior” case (footnote 46 above), p. 266. para. 34.
286
Annex 13
continuing breaches, but simple acts can cause continuing (7) A consequence of the character of a composite act
breaches as well. The position is different, however, where is that the time when the act is accomplished cannot be
the obligation itself is defined in terms of the cumula- the time when the first action or omission of the series
tive character of the conduct, i.e. where the cumulative takes place. It is only subsequently that the first action or
conduct constitutes the essence of the wrongful act. Thus, omission will appear as having, as it were, inaugurated
apartheid is different in kind from individual acts of ra- the series. Only after a series of actions or omissions takes
cial discrimination, and genocide is different in kind from place will the composite act be revealed, not merely as a
individual acts even of ethnically or racially motivated succession of isolated acts, but as a composite act, i.e. an
killing. act defined in aggregate as wrongful.
(5) In Ireland v. the United Kingdom, Ireland com- (8) Paragraph 1 of article 15 defines the time at which a
plained of a practice of unlawful treatment of detainees in composite act “occurs” as the time at which the last action
Northern Ireland which was said to amount to torture or or omission occurs which, taken with the other actions
inhuman or degrading treatment, and the case was held to or omissions, is sufficient to constitute the wrongful act,
be admissible on that basis. This had various procedural without it necessarily having to be the last in the series.
and remedial consequences. In particular, the exhaustion Similar considerations apply as for completed and con-
of local remedies rule did not have to be complied with in tinuing wrongful acts in determining when a breach of
relation to each of the incidents cited as part of the practice. international law exists; the matter is dependent upon the
But the Court denied that there was any separate wrong- precise facts and the content of the primary obligation.
ful act of a systematic kind involved. It was simply that The number of actions or omissions which must occur to
Ireland was entitled to complain of a practice made up by constitute a breach of the obligation is also determined by
a series of breaches of article VII of the Convention on the the formulation and purpose of the primary rule. The ac-
Prevention and Punishment of the Crime of Genocide, tions or omissions must be part of a series but the article
and to call for its cessation. As the Court said: does not require that the whole series of wrongful acts
has to be committed in order to fall into the category of
A practice incompatible with the Convention consists of an accumula- a composite wrongful act, provided a sufficient number
tion of identical or analogous breaches which are sufficiently numerous of acts has occurred to constitute a breach. At the time
and inter-connected to amount not merely to isolated incidents or excep- when the act occurs which is sufficient to constitute the
tions but to a pattern or system; a practice does not of itself constitute a
violation separate from such breaches* ... breach it may not be clear that further acts are to follow
and that the series is not complete. Further, the fact that
The concept of practice is of particular importance for the operation the series of actions or omissions was interrupted so that
of the rule of exhaustion of domestic remedies. This rule, as embodied it was never completed will not necessarily prevent those
in Article 26 of the Convention, applies to State applications ... in the actions or omissions which have occurred being classified
same way as it does to “individual” applications ... On the other hand as a composite wrongful act if, taken together, they are
and in principle, the rule does not apply where the applicant State com-
plains of a practice as such, with the aim of preventing its continuation sufficient to constitute the breach.
or recurrence, but does not ask the Commission or the Court to give a
decision on each of the cases put forward as proof or illustrations of (9) While composite acts are made up of a series of ac-
that practice.9
tions or omissions defined in aggregate as wrongful, this
In the case of crimes against humanity, the composite act does not exclude the possibility that every single act in
is a violation separate from the individual violations of the series could be wrongful in accordance with another
human rights of which it is composed. obligation. For example, the wrongful act of genocide is
generally made up of a series of acts which are themselves
internationally wrongful. Nor does it affect the temporal
(6) A further distinction must be drawn between the element in the commission of the acts: a series of acts or
necessary elements of a wrongful act and what might be omissions may occur at the same time or sequentially, at
required by way of evidence or proof that such an act has different times.
occurred. For example, an individual act of racial dis-
crimination by a State is internationally wrongful,260 even (10) Paragraph 2 of article 15 deals with the extension
though it may be necessary to adduce evidence of a series in time of a composite act. Once a sufficient number of
of acts by State officials (involving the same person or actions or omissions has occurred, producing the result of
other persons similarly situated) in order to show that any the composite act as such, the breach is dated to the first
one of those acts was discriminatory rather than actuated of the acts in the series. The status of the first action or
by legitimate grounds. In its essence such discrimination omission is equivocal until enough of the series has oc-
is not a composite act, but it may be necessary for the curred to constitute the wrongful act; but at that point the
purposes of proving it to produce evidence of a practice act should be regarded as having occurred over the whole
amounting to such an act. period from the commission of the first action or omis-
259 Ireland v. the United Kingdom (see footnote 236 above), p. 64,
sion. If this were not so, the effectiveness of the prohibi-
para. 159; see also page 63, para. 157. See further the United States tion would thereby be undermined.
counterclaim in Oil Platforms (Islamic Republic of Iran v. United States
of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports (11) The word “remain” in paragraph 2 is inserted to
1998, p. 190, which likewise focuses on a general situation rather than
specific instances. deal with the intertemporal principle set out in article 13.
260 See, e.g., article 2 of the International Convention on the Elimina- In accordance with that principle, the State must be bound
tion of All Forms of Racial Discrimination; and article 26 of the Inter- by the international obligation for the period during which
national Covenant on Civil and Political Rights. the series of acts making up the breach is committed. In
287
Annex 13
cases where the relevant obligation did not exist at the three States.264 The acts performed by Australia involved
beginning of the course of conduct but came into being both “joint” conduct of several States and day-to-day ad-
thereafter, the “first” of the actions or omissions of the ministration of a territory by one State acting on behalf of
series for the purposes of State responsibility will be the other States as well as on its own behalf. By contrast, if
first occurring after the obligation came into existence. the relevant organ of the acting State is merely “placed at
This need not prevent a court taking into account earlier the disposal” of the requesting State, in the sense provided
actions or omissions for other purposes (e.g. in order to for in article 6, only the requesting State is responsible for
establish a factual basis for the later breaches or to provide the act in question.
evidence of intent).
(4) In certain circumstances the wrongfulness of a
State’s conduct may depend on the independent action of
another State. A State may engage in conduct in a situa-
Chapter iV tion where another State is involved and the conduct of
the other State may be relevant or even decisive in assess-
RESPONSIBILITY OF A STATE IN CONNECTION ing whether the first State has breached its own interna-
WITH THE ACT OF ANOTHER STATE tional obligations. For example, in the Soering case the
European Court of Human Rights held that the proposed
extradition of a person to a State not party to the Euro-
Commentary pean Convention on Human Rights where he was likely
to suffer inhuman or degrading treatment or punishment
(1) In accordance with the basic principles laid down involved a breach of article 3 of the Convention by the
in chapter I, each State is responsible for its own interna- extraditing State.265 Alternatively, a State may be required
tionally wrongful conduct, i.e. for conduct attributable to by its own international obligations to prevent certain con-
it under chapter II which is in breach of an international duct by another State, or at least to prevent the harm that
obligation of that State in accordance with chapter III.261 would flow from such conduct. Thus, the basis of respon-
The principle that State responsibility is specific to the sibility in the Corfu Channel case266 was Albania’s fail-
State concerned underlies the present articles as a whole. ure to warn the United Kingdom of the presence of mines
It will be referred to as the principle of independent re- in Albanian waters which had been laid by a third State.
sponsibility. It is appropriate since each State has its own Albania’s responsibility in the circumstances was original
range of international obligations and its own correlative and not derived from the wrongfulness of the conduct of
responsibilities. any other State.
(5) In most cases of collaborative conduct by States,

(2) However, internationally wrongful conduct often re- responsibility for the wrongful act will be determined
sults from the collaboration of several States rather than according to the principle of independent responsibility
of one State acting alone.262 This may involve independ- referred to in paragraph (1) above. But there may be cases
ent conduct by several States, each playing its own role where conduct of the organ of one State, not acting as an
in carrying out an internationally wrongful act. Or it may organ or agent of another State, is nonetheless chargeable
be that a number of States act through a common organ to to the latter State, and this may be so even though the
commit a wrongful act.263 Internationally wrongful con- wrongfulness of the conduct lies, or at any rate prima-
duct can also arise out of situations where a State acts rily lies, in a breach of the international obligations of the
on behalf of another State in carrying out the conduct in former. Chapter IV of Part One defines these exceptional
question. cases where it is appropriate that one State should assume
responsibility for the internationally wrongful act of an-
(3) Various forms of collaborative conduct can coex- other.
ist in the same case. For example, three States, Australia,
New Zealand and the United Kingdom, together consti- (6) Three situations are covered in chapter IV. Article 16
tuted the Administering Authority for the Trust Territory deals with cases where one State provides aid or assist-
of Nauru. In the Certain Phosphate Lands in Nauru case, ance to another State with a view to assisting in the com-
proceedings were commenced against Australia alone mission of a wrongful act by the latter. Article 17 deals
in respect of acts performed on the “joint behalf ” of the with cases where one State is responsible for the interna-
tionally wrongful act of another State because it has exer-
261
See, in particular, article 2 and commentary. cised powers of direction and control over the commission
262
See M. L. Padelletti, Pluralità di Stati nel Fatto Illecito Interna- of an internationally wrongful act by the latter. Article 18
zionale (Milan, Giuffrè, 1990); Brownlie, System of the Law of Nations deals with the extreme case where one State deliberately
… (footnote 92 above), pp. 189–192; J. Quigley, “Complicity in inter-
national law: a new direction in the law of State responsibility”, BYBIL,
coerces another into committing an act which is, or but for
1986, vol. 57, p. 77; J. E. Noyes and B. D. Smith, “State responsibility 264 Certain Phosphate Lands in Nauru, Preliminary Objections
and the principle of joint and several liability”, Yale Journal of Interna-
tional Law, vol. 13 (1988), p. 225; and B. Graefrath, “Complicity in the (see footnote 230 above), p. 258, para. 47; see also the separate opinion
law of international responsibility”, Revue belge de droit international, of Judge Shahabuddeen, ibid., p. 284.
vol. 29 (1996), p. 370. 265 Soering v. the United Kingdom, Eur. Court H.R., Series A,
263 In some cases, the act in question may be committed by the No. 161, pp. 33–36, paras. 85–91 (1989). See also Cruz Varas and
organs of an international organization. This raises issues of the Others v. Sweden, ibid., No. 201, p. 28, paras. 69–70 (1991); and
international responsibility of international organizations which fall Vilvarajah and Others v. the United Kingdom, ibid., No. 215, p. 37,
outside the scope of the present articles. See article 57 and com- paras. 115–116 (1991).
mentary. 266 Corfu Channel, Merits (see footnote 35 above), p. 22.
288
Annex 13
the coercion would be,267 an internationally wrongful act necessary to establish a close connection between the ac-
on the part of the coerced State. In all three cases, the act tion of the assisting, directing or coercing State on the
in question is still committed, voluntarily or otherwise, by one hand and that of the State committing the internation-
organs or agents of the acting State, and is, or but for the ally wrongful act on the other. Thus, the articles in this
coercion would be, a breach of that State’s international chapter require that the former State should be aware of
obligations. The implication of the second State in that the circumstances of the internationally wrongful act in
breach arises from the special circumstance of its willing question, and establish a specific causal link between that
assistance in, its direction and control over or its coercion act and the conduct of the assisting, directing or coercing
of the acting State. But there are important differences be- State. This is done without prejudice to the general ques-
tween the three cases. Under article 16, the State primarily tion of “wrongful intent” in matters of State responsibil-
responsible is the acting State and the assisting State has a ity, on which the articles are neutral.270
mere supporting role. Similarly under article 17, the act-
ing State commits the internationally wrongful act, albeit (9) Similar considerations dictate the exclusion of cer-
under the direction and control of another State. By contain situations of “derived responsibility” from chap-
trast, in the case of coercion under article 18, the coercing ter IV. One of these is incitement. The incitement of
State is the prime mover in respect of the conduct and the wrongful conduct is generally not regarded as sufficient
coerced State is merely its instrument. to give rise to responsibility on the part of the inciting
State, if it is not accompanied by concrete support or
(7) A feature of this chapter is that it specifies certain does not involve direction and control on the part of the
conduct as internationally wrongful. This may seem to inciting State.271 However, there can be specific treaty
blur the distinction maintained in the articles between obligations prohibiting incitement under certain circum-
the primary or substantive obligations of the State and its stances.272 Another concerns the issue which is described
secondary obligations of responsibility.268 It is justified in some systems of internal law as being an “accessory
on the basis that responsibility under chapter IV is in a after the fact”. It seems that there is no general obliga-
sense derivative.269 In national legal systems, rules deal- tion on the part of third States to cooperate in suppressing
ing, for example, with conspiracy, complicity and induc- internationally wrongful conduct of another State which
ing breach of contract may be classified as falling within may already have occurred. Again it is a matter for spe-
the “general part” of the law of obligations. Moreover, the cific treaty obligations to establish any such obligation of
idea of the implication of one State in the conduct of an- suppression after the event. There are, however, two im-
other is analogous to problems of attribution, dealt with portant qualifications here. First, in some circumstances
in chapter II. assistance given by one State to another after the latter has
committed an internationally wrongful act may amount to
the adoption of that act by the former State. In such cases
(8) On the other hand, the situations covered in chap- responsibility for that act potentially arises pursuant to ar-
ter IV have a special character. They are exceptions to ticle 11. Secondly, special obligations of cooperation in
the principle of independent responsibility and they only putting an end to an unlawful situation arise in the case of
cover certain cases. In formulating these exceptional cas- serious breaches of obligations under peremptory norms
es where one State is responsible for the internationally of general international law. By definition, in such cases
wrongful acts of another, it is necessary to bear in mind States will have agreed that no derogation from such obli-
certain features of the international system. First, there is gations is to be permitted and, faced with a serious breach
the possibility that the same conduct may be internation- of such an obligation, certain obligations of cooperation
ally wrongful so far as one State is concerned but not for arise. These are dealt with in article 41.
another State having regard to its own international obli-
gations. Rules of derived responsibility cannot be allowed
to undermine the principle, stated in article 34 of the 1969 Article 16. Aid or assistance in the commission
Vienna Convention, that a “treaty does not create either of an internationally wrongful act
obligations or rights for a third State without its consent”;
similar issues arise with respect to unilateral obligations A State which aids or assists another State in the
and even, in certain cases, rules of general international commission of an internationally wrongful act by the
law. Hence it is only in the extreme case of coercion that a latter is internationally responsible for doing so if:
State may become responsible under this chapter for con- (a) that State does so with knowledge of the circum-
duct which would not have been internationally wrongful stances of the internationally wrongful act; and
if performed by that State. Secondly, States engage in a
wide variety of activities through a multiplicity of organs (b) the act would be internationally wrongful if
and agencies. For example, a State providing financial or committed by that State.
other aid to another State should not be required to as- 270 See above, the commentary to paragraphs (3) and (10) of
sume the risk that the latter will divert the aid for pur- article 2.
poses which may be internationally unlawful. Thus, it is 271 See the statement of the United States-French Commission-
267 If a State has been coerced, the wrongfulness of its act may be
ers relating to the French Indemnity of 1831 case in Moore, History
and Digest, vol. V, p. 4447, at pp. 4473–4476. See also Military and
precluded by force majeure: see article 23 and commentary. Paramilitary Activities in and against Nicaragua (footnote 36 above),
268 See paras. (1)–(2) and (4) of the general commentary for an p. 129, para. 255, and the dissenting opinion of Judge Schwebel,
explanation of the distinction. p. 389, para. 259.
269 Cf. the term responsabilité dérivée used by Arbitrator Huber in 272 See, e.g., article III (c) of the Convention on the Prevention and
British Claims in the Spanish Zone of Morocco (footnote 44 above), Punishment of the Crime of Genocide; and article 4 of the International
p. 648. Convention on the Elimination of All Forms of Racial Discrimination.
289
Annex 13
Commentary ing State is unaware of the circumstances in which its aid

or assistance is intended to be used by the other State, it
(1) Article 16 deals with the situation where one State bears no international responsibility.
provides aid or assistance to another with a view to facili-
tating the commission of an internationally wrongful act (5) The second requirement is that the aid or assistance
by the latter. Such situations arise where a State voluntar- must be given with a view to facilitating the commission
ily assists or aids another State in carrying out conduct of the wrongful act, and must actually do so. This limits
which violates the international obligations of the latter, the application of article 16 to those cases where the aid or
for example, by knowingly providing an essential facility assistance given is clearly linked to the subsequent wrong-
or financing the activity in question. Other examples in- ful conduct. A State is not responsible for aid or assistance
clude providing means for the closing of an international under article 16 unless the relevant State organ intended,
waterway, facilitating the abduction of persons on foreign by the aid or assistance given, to facilitate the occurrence
soil, or assisting in the destruction of property belonging of the wrongful conduct and the internationally wrong-
to nationals of a third country. The State primarily re- ful conduct is actually committed by the aided or assisted
sponsible in each case is the acting State, and the assist- State. There is no requirement that the aid or assistance
ing State has only a supporting role. Hence the use of the should have been essential to the performance of the in-
term “by the latter” in the chapeau to article 16, which ternationally wrongful act; it is sufficient if it contributed
distinguishes the situation of aid or assistance from that significantly to that act.
of co-perpetrators or co-participants in an internationally
wrongful act. Under article 16, aid or assistance by the (6) The third condition limits article 16 to aid or assist-
assisting State is not to be confused with the responsibil- ance in the breach of obligations by which the aiding or
ity of the acting State. In such a case, the assisting State assisting State is itself bound. An aiding or assisting State
will only be responsible to the extent that its own conduct may not deliberately procure the breach by another State
has caused or contributed to the internationally wrongful of an obligation by which both States are bound; a State
act. Thus, in cases where that internationally wrongful act cannot do by another what it cannot do by itself. On the
would clearly have occurred in any event, the responsibil- other hand, a State is not bound by obligations of another
ity of the assisting State will not extend to compensating State vis-à-vis third States. This basic principle is also em-
for the act itself. bodied in articles 34 and 35 of the 1969 Vienna Conven-
tion. Correspondingly, a State is free to act for itself in a
(2) Various specific substantive rules exist, prohibiting way which is inconsistent with the obligations of another
one State from providing assistance in the commission State vis-à-vis third States. Any question of responsibil-
of certain wrongful acts by other States or even requir- ity in such cases will be a matter for the State to whom
ing third States to prevent or repress such acts.273 Such assistance is provided vis-à-vis the injured State. Thus, it
provisions do not rely on any general principle of derived is a necessary requirement for the responsibility of an as-
responsibility, nor do they deny the existence of such a sisting State that the conduct in question, if attributable to
principle, and it would be wrong to infer from them the the assisting State, would have constituted a breach of its
non-existence of any general rule. As to treaty provisions own international obligations.
such as Article 2, paragraph 5, of the Charter of the United
Nations, again these have a specific rationale which goes (7) State practice supports assigning international re-
well beyond the scope and purpose of article 16. sponsibility to a State which deliberately participates in
the internationally wrongful conduct of another through
(3) Article 16 limits the scope of responsibility for aid the provision of aid or assistance, in circumstances where
or assistance in three ways. First, the relevant State organ the obligation breached is equally opposable to the assist-
or agency providing aid or assistance must be aware of the ing State. For example, in 1984 the Islamic Republic of
circumstances making the conduct of the assisted State Iran protested against the supply of financial and mili-
internationally wrongful; secondly, the aid or assistance tary aid to Iraq by the United Kingdom, which allegedly
must be given with a view to facilitating the commission included chemical weapons used in attacks against Ira-
of that act, and must actually do so; and thirdly, the com- nian troops, on the ground that the assistance was facili-
pleted act must be such that it would have been wrongful tating acts of aggression by Iraq.274 The Government of
had it been committed by the assisting State itself. the United Kingdom denied both the allegation that it had
chemical weapons and that it had supplied them to Iraq.275
(4) The requirement that the assisting State be aware In 1998, a similar allegation surfaced that the Sudan had
of the circumstances making the conduct of the assisted assisted Iraq to manufacture chemical weapons by allow-
State internationally wrongful is reflected by the phrase ing Sudanese installations to be used by Iraqi technicians
“knowledge of the circumstances of the internationally for steps in the production of nerve gas. The allegation was
wrongful act”. A State providing material or financial as- denied by Iraq’s representative to the United Nations.276
sistance or aid to another State does not normally assume
the risk that its assistance or aid may be used to carry (8) The obligation not to use force may also be breached
out an internationally wrongful act. If the assisting or aid- by an assisting State through permitting the use of its terri-
tory by another State to carry out an armed attack against
273 See, e.g., the first principle of the Declaration on Principles of
a third State. An example is provided by a statement made
International Law concerning Friendly Relations and Coopera- by the Government of the Federal Republic of Germany
tion among States in accordance with the Charter of the United
Nations (General Assembly resolution 2625 (XXV) of 24 October 274 The New York Times, 6 March 1984, p. A1.
1970, annex); and article 3 (f) of the Definition of Aggression Ibid.,
(General Assembly resolution 3314 (XXIX) of 14 December 1974, 5 March 1984, p. A3.
annex). 276 Ibid., 26 August 1998, p. A8.
290
Annex 13
in response to an allegation that Germany had participat- (10) In accordance with article 16, the assisting State is
ed in an armed attack by allowing United States military responsible for its own act in deliberately assisting another
aircraft to use airfields in its territory in connection with State to breach an international obligation by which they
the United States intervention in Lebanon. While denying are both bound. It is not responsible, as such, for the act of
that the measures taken by the United States and the Unit- the assisted State. In some cases this may be a distinction
ed Kingdom in the Near East constituted intervention, the without a difference: where the assistance is a necessary
Federal Republic of Germany nevertheless seems to have element in the wrongful act in absence of which it could
accepted that the act of a State in placing its own territory not have occurred, the injury suffered can be concurrently
at the disposal of another State in order to facilitate the attributed to the assisting and the acting State.284 In other
commission of an unlawful use of force by that other State cases, however, the difference may be very material: the
was itself an internationally wrongful act.277 Another ex- assistance may have been only an incidental factor in the
ample arises from the Tripoli bombing incident in April commission of the primary act, and may have contributed
1986. The Libyan Arab Jamahiriya charged the United only to a minor degree, if at all, to the injury suffered.
Kingdom with responsibility for the event, based on the By assisting another State to commit an internationally
fact that the United Kingdom had allowed several of its air wrongful act, a State should not necessarily be held to in-
bases to be used for the launching of United States fighter demnify the victim for all the consequences of the act,
planes to attack Libyan targets.278 The Libyan Arab Jama- but only for those which, in accordance with the princi-
hiriya asserted that the United Kingdom “would be held ples stated in Part Two of the articles, flow from its own
partly responsible” for having “supported and contribut- conduct.
ed in a direct way” to the raid.279 The United Kingdom (11) Article 16 does not address the question of the ad-
denied responsibility on the basis that the raid by the missibility of judicial proceedings to establish the respon-
United States was lawful as an act of self-defence sibility of the aiding or assisting State in the absence of
against Libyan terrorist attacks on United States targets.280 or without the consent of the aided or assisted State. ICJ
A proposed Security Council resolution concerning the has repeatedly affirmed that it cannot decide on the inter-
attack was vetoed, but the General Assembly issued a res- national responsibility of a State if, in order to do so, “it
olution condemning the “military attack” as “a violation would have to rule, as a prerequisite, on the lawfulness”285
of the Charter of the United Nations and of international of the conduct of another State, in the latter’s absence and
law”, and calling upon all States “to refrain from extend- without its consent. This is the so-called Monetary Gold
ing any assistance or facilities for perpetrating acts of principle.286 That principle may well apply to cases under
aggression against the Libyan Arab Jamahiriya”.281 article 16, since it is of the essence of the responsibility
of the aiding or assisting State that the aided or assisted
(9) The obligation not to provide aid or assistance to State itself committed an internationally wrongful act.
facilitate the commission of an internationally wrongful The wrongfulness of the aid or assistance given by the
act by another State is not limited to the prohibition on the former is dependent, inter alia, on the wrongfulness of
use of force. For instance, a State may incur responsibility the conduct of the latter. This may present practical dif-
if it assists another State to circumvent sanctions imposed ficulties in some cases in establishing the responsibility
by the Security Council282 or provides material aid to a of the aiding or assisting State, but it does not vitiate the
State that uses the aid to commit human rights violations. purpose of article 16. The Monetary Gold principle is
In this respect, the General Assembly has called on Mem- concerned with the admissibility of claims in internation-
ber States in a number of cases to refrain from supplying al judicial proceedings, not with questions of responsibil-
arms and other military assistance to countries found to ity as such. Moreover, that principle is not all-embracing,
be committing serious human rights violations.283 Where and the Monetary Gold principle may not be a barrier to
the allegation is that the assistance of a State has facili- judicial proceedings in every case. In any event, wrong-
tated human rights abuses by another State, the particular ful assistance given to another State has frequently led to
circumstances of each case must be carefully examined to diplomatic protests. States are entitled to assert complic-
determine whether the aiding State by its aid was aware of ity in the wrongful conduct of another State even though
and intended to facilitate the commission of the interna- no international court may have jurisdiction to rule on the
tionally wrongful conduct. charge, at all or in the absence of the other State.
277 For the text of the note from the Federal Government,
see Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Article 17. Direction and control exercised over the
vol. 20 (August 1960), pp. 663–664. commission of an internationally wrongful act
278 See United States of America, Department of State Bulletin,
No. 2111 (June 1986), p. 8. A State which directs and controls another State in
279 See the statement of Ambassador Hamed Houdeiry, Libyan the commission of an internationally wrongful act by
People’s Bureau, Paris, The Times, 16 April 1986, p. 6. the latter is internationally responsible for that act if:
280 Statement of Mrs. Margaret Thatcher, Prime Minister, House
of Commons Debates, 6th series, vol. 95, col. 737 (15 April 1986), (a) that State does so with knowledge of the circum-
reprinted in BYBIL, 1986, vol. 57, pp. 637–638. stances of the internationally wrongful act; and
281 General Assembly resolution 41/38 of 20 November 1986,
paras. 1 and 3. 284 For the question of concurrent responsibility of several States for
282 See, e.g., Report by President Clinton, AJIL, vol. 91, No. 4 the same injury, see article 47 and commentary.
(October 1997), p. 709. 285 East Timor (see footnote 54 above), p. 105, para. 35.
283 Report of the Economic and Social Council, Report of the Third 6 Monetary Gold Removed from Rome in 1943, Judgment, I.C.J.
Committee of the General Assembly, draft resolution XVII (A/37/745), Reports 1954, p. 19, at p. 32; Certain Phosphate Lands in Nauru,
p. 50. Preliminary Objections (see footnote 230 above), p. 261, para. 55.
291
Annex 13
(b) the act would be internationally wrongful if the protected territory in its international relations”,290
committed by that State. and that the protecting State is answerable “in place of
the protected State”.291 The principal concern in the ar-
bitration was to ensure that, in the case of a protectorate
Commentary which put an end to direct international relations by the
protected State, international responsibility for wrongful
acts committed by the protected State was not erased to
(1) Article 17 deals with a second case of derived re- the detriment of third States injured by the wrongful con-
sponsibility, the exercise of direction and control by one duct. The acceptance by the protecting State of the obliga-
State over the commission of an internationally wrong- tion to answer in place of the protected State was viewed
ful act by another. Under article 16, a State providing as an appropriate means of avoiding that danger.292 The
aid or assistance with a view to the commission of an justification for such an acceptance was not based on the
internationally wrongful act incurs international respon- relationship of “representation” as such but on the fact
sibility only to the extent of the aid or assistance given. that the protecting State was in virtually total control over
By contrast, a State which directs and controls another in the protected State. It was not merely acting as a channel
the commission of an internationally wrongful act is re- of communication.
sponsible for the act itself, since it controlled and directed
the act in its entirety.
(4) Other relationships of dependency, such as depend-
ent territories, fall entirely outside the scope of article 17,
(2) Some examples of international responsibility flow- which is concerned only with the responsibility of one
ing from the exercise of direction and control over the State for the conduct of another State. In most relation-
commission of a wrongful act by another State are now ships of dependency between one territory and another,
largely of historical significance. International depend- the dependent territory, even if it may possess some in-
ency relationships such as “suzerainty” or “protectorate” ternational personality, is not a State. Even in cases where
warranted treating the dominant State as internation- a component unit of a federal State enters into treaties or
ally responsible for conduct formally attributable to the other international legal relations in its own right, and not
dependent State. For example, in Rights of Nationals of by delegation from the federal State, the component unit
the United States of America in Morocco,287 France com- is not itself a State in international law. So far as State
menced proceedings under the Optional Clause in respect responsibility is concerned, the position of federal States
of a dispute concerning the rights of United States na- is no different from that of any other State: the normal
tionals in Morocco under French protectorate. The United principles specified in articles 4 to 9 of the draft articles
States objected that any eventual judgment might not be apply, and the federal State is internationally responsible
considered as binding upon Morocco, which was not a for the conduct of its component units even though that
party to the proceedings. France confirmed that it was conduct falls within their own local control under the fed-
acting both in its own name and as the protecting power eral constitution.293
over Morocco, with the result that the Court’s judgment
would be binding both on France and on Morocco,288 and (5) Nonetheless, instances exist or can be envisaged
the case proceeded on that basis.289 The Court’s judgment where one State exercises the power to direct and control
concerned questions of the responsibility of France in re- the activities of another State, whether by treaty or as a
spect of the conduct of Morocco which were raised both result of a military occupation or for some other reason.
by the application and by the United States counterclaim. For example, during the belligerent occupation of Italy by
Germany in the Second World War, it was generally ac-
(3) With the developments in international relations knowledged that the Italian police in Rome operated un-
since 1945, and in particular the process of decoloniza- der the control of the occupying Power. Thus, the protest
tion, older dependency relationships have been terminat- by the Holy See in respect of wrongful acts committed by
ed. Such links do not involve any legal right to direction Italian police who forcibly entered the Basilica of St. Paul
or control on the part of the representing State. In cases in Rome in February 1944 asserted the responsibility of
of representation, the represented entity remains respon- the German authorities.294 In such cases the occupying
sible for its own international obligations, even though State is responsible for acts of the occupied State which it
diplomatic communications may be channelled through directs and controls.
another State. The representing State in such cases does
not, merely because it is the channel through which com- (6) Article 17 is limited to cases where a dominant State
munications pass, assume any responsibility for their con- actually directs and controls conduct which is a breach of
tent. This is not in contradiction to the British Claims in an international obligation of the dependent State. Interna-
the Spanish Zone of Morocco arbitration, which affirmed tional tribunals have consistently refused to infer respon-
that “the responsibility of the protecting State … proceeds sibility on the part of a dominant State merely because
… from the fact that the protecting State alone represents 290 British Claims in the Spanish Zone of Morocco (see footnote 44
287 above), p. 649.

Rights of Nationals of the United States of America in Morocco 291 Ibid., p. 648.
(see footnote 108 above), p. 176.
288 Ibid., I.C.J. Pleadings, vol. I, p. 235; and vol. II, pp. 431–433; 292 Ibid.
the United States thereupon withdrew its preliminary objection: ibid., 293 See, e.g., LaGrand, Provisional Measures (footnote 91 above).
p. 434. 294 See R. Ago, “L’occupazione bellica di Roma e il Trattato
289 See Rights of Nationals of the United States of America in lateranense”, Comunicazioni e Studi (Milan, Giuffrè, 1945), vol. II,
Morocco (footnote 108 above), p. 179. pp. 167–168.
292
Annex 13
the latter may have the power to interfere in matters of especially of obligations to the international community,
administration internal to a dependent State, if that power it is of much less significance. The essential principle is
is not exercised in the particular case. In the Brown case, that a State should not be able to do through another what
for example, the arbitral tribunal held that the authority of it could not do itself.
Great Britain, as suzerain over the South African Repub-
lic prior to the Boer War, “fell far short of what would be (9) As to the responsibility of the directed and control-
required to make her responsible for the wrong inflicted led State, the mere fact that it was directed to carry out an
upon Brown”.295 It went on to deny that Great Britain internationally wrongful act does not constitute an excuse
possessed power to interfere in matters of internal admin- under chapter V of Part One. If the conduct in question
istration and continued that there was no evidence “that would involve a breach of its international obligations, it is
Great Britain ever did undertake to interfere in this way”.296 incumbent upon it to decline to comply with the direction.
Accordingly, the relation of suzerainty “did not operate to The defence of “superior orders” does not exist for States
render Great Britain liable for the acts complained of ”. 297 in international law. This is not to say that the wrongful-
In the Heirs of the Duc de Guise case, the Franco-Italian ness of the directed and controlled State’s conduct may
Conciliation Commission held that Italy was responsible not be precluded under chapter V, but this will only be so
for a requisition carried out by Italy in Sicily at a time if it can show the existence of a circumstance precluding
when it was under Allied occupation. Its decision was not wrongfulness, e.g. force majeure. In such a case it is to
based on the absence of Allied power to requisition the the directing State alone that the injured State must look.
property, or to stop Italy from doing so. Rather, the major- But as between States, genuine cases of force majeure or
ity pointed to the absence in fact of any “intermeddling coercion are exceptional. Conversely, it is no excuse for
on the part of the Commander of the Occupation forces or the directing State to show that the directed State was a
any Allied authority calling for the requisition decrees”.298 willing or even enthusiastic participant in the internation-
The mere fact that a State may have power to exercise ally wrongful conduct, if in truth the conditions laid down
direction and control over another State in some field is in article 17 are met.
not a sufficient basis for attributing to it any wrongful acts
of the latter State in that field.299
Article 18. Coercion of another State
(7) In the formulation of article 17, the term “controls”
refers to cases of domination over the commission of A State which coerces another State to commit an
wrongful conduct and not simply the exercise of oversight, act is internationally responsible for that act if:
still less mere influence or concern. Similarly, the word
“directs” does not encompass mere incitement or sugges- (a) the act would, but for the coercion, be an inter-
tion but rather connotes actual direction of an operative nationally wrongful act of the coerced State; and
kind. Both direction and control must be exercised over (b) the coercing State does so with knowledge of the
the wrongful conduct in order for a dominant State to in- circumstances of the act.
cur responsibility. The choice of the expression, common
in English, “direction and control”, raised some problems
in other languages, owing in particular to the ambiguity Commentary
of the term “direction” which may imply, as is the case
in French, complete power, whereas it does not have this (1) The third case of derived responsibility dealt with
implication in English. by chapter IV is that of coercion of one State by another.
Article 18 is concerned with the specific problem of coer-
(8) Two further conditions attach to responsibility under cion deliberately exercised in order to procure the breach
article 17. First, the dominant State is only responsible if of one State’s obligation to a third State. In such cases
it has knowledge of the circumstances making the conduct the responsibility of the coercing State with respect to the
of the dependent State wrongful. Secondly, it has to be third State derives not from its act of coercion, but rather
shown that the completed act would have been wrongful from the wrongful conduct resulting from the action of
had it been committed by the directing and controlling the coerced State. Responsibility for the coercion itself
State itself. This condition is significant in the context is that of the coercing State vis-à-vis the coerced State,
of bilateral obligations, which are not opposable to the whereas responsibility under article 18 is the responsibil-
directing State. In cases of multilateral obligations and ity of the coercing State vis-à-vis a victim of the coerced
act, in particular a third State which is injured as a result.
295 Robert E. Brown (United States) v. Great Britain, UNRIAA,
vol. VI (Sales No. 1955.V.3), p. 120, at p. 130 (1923).
296 Ibid., p. 131. (2) Coercion for the purpose of article 18 has the same
297 Ibid. essential character as force majeure under article 23.
298 Heirs of the Duc de Guise (see footnote 115 above). See also, in Nothing less than conduct which forces the will of the
another context, Drozd and Janousek v. France and Spain (footnote 135 coerced State will suffice, giving it no effective choice
above); see also Iribarne Pérez v. France, Eur. Court H.R., Series A, but to comply with the wishes of the coercing State. It
No. 325–C, pp. 62–63, paras. 29–31 (1995). is not sufficient that compliance with the obligation is
299 It may be that the fact of the dependence of one State upon anoth-
made more difficult or onerous, or that the acting State
er is relevant in terms of the burden of proof, since the mere existence is assisted or directed in its conduct: such questions are
of a formal State apparatus does not exclude the possibility that control
was exercised in fact by an occupying Power. Cf. Restitution of House- covered by the preceding articles. Moreover, the coerc-
hold Effects Belonging to Jews Deported from Hungary (Germany), ing State must coerce the very act which is internationally
Kammergericht of Berlin, ILR, vol. 44, p. 301, at pp. 340–342 (1965). wrongful. It is not enough that the consequences of the
293
Annex 13
coerced act merely make it more difficult for the coerced the coerced State in circumstances where the coercing
State to comply with the obligation. State is not itself bound by the obligation in question.
(3) Though coercion for the purpose of article 18 is (7) State practice lends support to the principle that a
narrowly defined, it is not limited to unlawful coercion.300 State bears responsibility for the internationally wrongful
As a practical matter, most cases of coercion meeting the conduct of another State which it coerces. In the Romano-
requirements of the article will be unlawful, e.g. because Americana case, the claim of the United States Govern-
they involve a threat or use of force contrary to the Char- ment in respect of the destruction of certain oil storage
ter of the United Nations, or because they involve inter- and other facilities owned by a United States company on
vention, i.e. coercive interference, in the affairs of another the orders of the Government of Romania during the First
State. Such is also the case with countermeasures. They World War was originally addressed to the British Govern-
may have a coercive character, but as is made clear in ment. At the time the facilities were destroyed, Romania
article 49, their function is to induce a wrongdoing State was at war with Germany, which was preparing to invade
to comply with obligations of cessation and reparation to- the country, and the United States claimed that the Roma-
wards the State taking the countermeasures, not to coerce nian authorities had been “compelled” by Great Britain to
that State to violate obligations to third States.301 How- take the measures in question. In support of its claim, the
ever, coercion could possibly take other forms, e.g. seri- United States Government argued that the circumstances
ous economic pressure, provided that it is such as to de- of the case revealed “a situation where a strong belligerent
prive the coerced State of any possibility of conforming for a purpose primarily its own arising from its defensive
with the obligation breached. requirements at sea, compelled a weaker Ally to acquiesce
in an operation which it carried out on the territory of that
Ally”.302 The British Government denied responsibility,
(4) The equation of coercion with force majeure means
asserting that its influence over the conduct of the Roma-
that in most cases where article 18 is applicable, the re-
nian authorities “did not in any way go beyond the limits
sponsibility of the coerced State will be precluded vis-à-
of persuasion and good counsel as between governments
vis the injured third State. This is reflected in the phrase
associated in a common cause”.303 The point of disagree-
“but for the coercion” in subparagraph (a) of article 18.
ment between the Governments of the United States and
Coercion amounting to force majeure may be the reason
of Great Britain was not as to the responsibility of a State
why the wrongfulness of an act is precluded vis-à-vis the
for the conduct of another State which it has coerced, but
coerced State. Therefore, the act is not described as an
rather the existence of “compulsion” in the particular
internationally wrongful act in the opening clause of the
circumstances of the case.304
article, as is done in articles 16 and 17, where no compa-
rable circumstance would preclude the wrongfulness of
the act of the assisted or controlled State. But there is no Article 19. Effect of this chapter
reason why the wrongfulness of that act should be pre-
cluded vis-à-vis the coercing State. On the contrary, if the This chapter is without prejudice to the internation-
coercing State cannot be held responsible for the act in al responsibility, under other provisions of these arti-
question, the injured State may have no redress at all. cles, of the State which commits the act in question, or
of any other State.
(5) It is a further requirement for responsibility under
article 18 that the coercing State must be aware of the
circumstances which would, but for the coercion, have Commentary
entailed the wrongfulness of the coerced State’s conduct.
The reference to “circumstances” in subparagraph (b) is (1) Article 19 serves three purposes. First, it preserves
understood as reference to the factual situation rather than the responsibility of the State which has committed the
to the coercing State’s judgement of the legality of the act. internationally wrongful act, albeit with the aid or assist-
This point is clarified by the phrase “circumstances of the ance, under the direction and control or subject to the co-
act”. Hence, while ignorance of the law is no excuse, ig- ercion of another State. It recognizes that the attribution
norance of the facts is material in determining the respon- of international responsibility to an assisting, directing or
sibility of the coercing State. coercing State does not preclude the responsibility of the
assisted, directed or coerced State.
(6) A State which sets out to procure by coercion a
breach of another State’s obligations to a third State (2) Secondly, the article makes clear that the provisions
will be held responsible to the third State for the conse- of chapter IV are without prejudice to any other basis for
quences, regardless of whether the coercing State is also establishing the responsibility of the assisting, directing
bound by the obligation in question. Otherwise, the in- or coercing State under any rule of international law de-
jured State would potentially be deprived of any redress, fining particular conduct as wrongful. The phrase “under
because the acting State may be able to rely on force ma- 302 Note from the United States Embassy in London, dated 16 Febru-
jeure as a circumstance precluding wrongfulness. Article ary 1925, in Hackworth, op. cit. (footnote 142 above), p. 702.
18 thus differs from articles 16 and 17 in that it does not 303 Note from the British Foreign Office dated 5 July 1928, ibid.,
allow for an exemption from responsibility for the act of p. 704.
304 For a different example involving the coercion of a breach of con-
300 P. Reuter, Introduction to the Law of Treaties, 2nd rev. ed.
tract in circumstances amounting to a denial of justice, see C. L. Bouvé,
(London, Kegan Paul International, 1995), paras. 271–274. “Russia’s liability in tort for Persia’s breach of contract”, AJIL, vol. 6,
01 See article 49, para. 2, and commentary. No. 2 (April 1912), p. 389.
294
Annex 13
other provisions of these articles” is a reference, inter tions under the Treaty on the Construction and Operation
alia, to article 23 (Force majeure), which might affect the of the Gabčíkovo-Nagymaros Barrage System was pre-
question of responsibility. The phrase also draws attention cluded by necessity. In dealing with the Hungarian plea,
to the fact that other provisions of the draft articles may the Court said:
be relevant to the State committing the act in question, The state of necessity claimed by Hungary—supposing it to have been
and that chapter IV in no way precludes the issue of its established—thus could not permit of the conclusion that ... it had acted
responsibility in that regard. in accordance with its obligations under the 1977 Treaty or that those
obligations had ceased to be binding upon it. It would only permit the
affirmation that, under the circumstances, Hungary would not incur
(3) Thirdly, article 19 preserves the responsibility “of international responsibility by acting as it did.06
any other State” to whom the internationally wrongful
conduct might also be attributable under other provisions Thus a distinction must be drawn between the effect of
of the articles. circumstances precluding wrongfulness and the termina-
tion of the obligation itself. The circumstances in chap-
(4) Thus, article 19 is intended to avoid any contrary inter V operate as a shield rather than a sword. As Fitzmau-
ference in respect of responsibility which may arise from rice noted, where one of the circumstances precluding
primary rules, precluding certain forms of assistance, or wrongfulness applies, “the non-performance is not only
from acts otherwise attributable to any State under chap- justified, but ‘looks towards’ a resumption of performance
ter II. The article covers both the implicated and the acting so soon as the factors causing and justifying the non-per-
State. It makes it clear that chapter IV is concerned only formance are no longer present”.307
with situations in which the act which lies at the origin
of the wrong is an act committed by one State and not by (3) This distinction emerges clearly from the decisions
the other. If both States commit the act, then that situation of international tribunals. In the “Rainbow Warrior” ar-
would fall within the realm of co-perpetrators, dealt with bitration, the tribunal held that both the law of treaties
in chapter II. and the law of State responsibility had to be applied, the
former to determine whether the treaty was still in force,
the latter to determine what the consequences were of
any breach of the treaty while it was in force, including
Chapter V the question whether the wrongfulness of the conduct in
question was precluded.308 In the Gabčíkovo-Nagymaros
CIRCUMSTANCES PRECLUDING Project case, the Court noted that:
WRONGFULNESS
[E]ven if a state of necessity is found to exist, it is not a ground for the
termination of a treaty. It may only be invoked to exonerate from its
Commentary responsibility a State which has failed to implement a treaty. Even if
found justified, it does not terminate a Treaty; the Treaty may be inef-
(1) Chapter V sets out six circumstances precluding the fective as long as the condition of necessity continues to exist; it may in
fact be dormant, but—unless the parties by mutual agreement terminate
wrongfulness of conduct that would otherwise not be in the treaty—it continues to exist. As soon as the state of necessity ceases
conformity with the international obligations of the State to exist, the duty to comply with treaty obligations revives.09
concerned. The existence in a given case of a circumstance
precluding wrongfulness in accordance with this chapter (4) While the same facts may amount, for example, to
provides a shield against an otherwise well-founded claim force majeure under article 23 and to a supervening im-
for the breach of an international obligation. The six cir- possibility of performance under article 61 of the 1969
cumstances are: consent (art. 20), self-defence (art. 21), Vienna Convention, the two are distinct. Force majeure
countermeasures (art. 22), force majeure (art. 23), dis- justifies non-performance of the obligation for so long as
tress (art. 24) and necessity (art. 25). Article 26 makes it the circumstance exists; supervening impossibility justi-
clear that none of these circumstances can be relied on if fies the termination of the treaty or its suspension in ac-
to do so would conflict with a peremptory norm of gen- cordance with the conditions laid down in article 61. The
eral international law. Article 27 deals with certain conse- former operates in respect of the particular obligation, the
quences of the invocation of one of these circumstances. latter with respect to the treaty which is the source of that
obligation. Just as the scope of application of the two doc-
(2) Consistent with the approach of the present arti- trines is different, so is their mode of application. Force
cles, the circumstances precluding wrongfulness set out majeure excuses non-performance for the time being, but
in chapter V are of general application. Unless otherwise a treaty is not automatically terminated by supervening
provided,305 they apply to any internationally wrongful impossibility: at least one of the parties must decide to
act whether it involves the breach by a State of an obliga- terminate it.
tion arising under a rule of general international law, a
treaty, a unilateral act or from any other source. They do (5) The concept of circumstances precluding wrong-
not annul or terminate the obligation; rather they provide fulness may be traced to the work of the Preparatory
a justification or excuse for non-performance while the
circumstance in question subsists. This was emphasized 306 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 39,
by ICJ in the Gabčíkovo-Nagymaros Project case. Hunga- para. 48.

307 Yearbook … 1959, vol. II, p. 41, document A/CN.4/120.
ry sought to argue that the wrongfulness of its conduct in
308 “Rainbow Warrior” (see footnote 46 above), pp. 251–252,
discontinuing work on the Project in breach of its obliga-
para. 75.
305 For example, by a treaty to the contrary, which would constitute a 309 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 63,
lex specialis under article 55. para. 101; see also page 38, para. 47.
295
Annex 13
Committee of the 1930 Hague Conference. Among its (9) Chapter V sets out the circumstances precluding
Bases of discussion,310 it listed two “[c]ircumstances un- wrongfulness presently recognized under general inter-
der which States can decline their responsibility”, self-de- national law.316 Certain other candidates have been ex-
fence and reprisals.311 It considered that the extent of a cluded. For example, the exception of non-performance
State’s responsibility in the context of diplomatic protec- (exceptio inadimpleti contractus) is best seen as a specific
tion could also be affected by the “provocative attitude” feature of certain mutual or synallagmatic obligations and
adopted by the injured person (Basis of discussion No. not a circumstance precluding wrongfulness.317 The prin-
19) and that a State could not be held responsible for dam- ciple that a State may not benefit from its own wrongful
age caused by its armed forces “in the suppression of an act is capable of generating consequences in the field of
insurrection, riot or other disturbance” (Basis of discus- State responsibility but it is rather a general principle than
sion No. 21). However, these issues were not taken to any a specific circumstance precluding wrongfulness.318 The
conclusion. so-called “clean hands” doctrine has been invoked princi-
pally in the context of the admissibility of claims before
(6) The category of circumstances precluding wrongful- international courts and tribunals, though rarely applied.
ness was developed by ILC in its work on international re- It also does not need to be included here.319
sponsibility for injuries to aliens312 and the performance
of treaties.313 In the event, the subject of excuses for the
non-performance of treaties was not included within the Article 20. Consent
scope of the 1969 Vienna Convention.314 It is a matter for
the law on State responsibility. Valid consent by a State to the commission of a
given act by another State precludes the wrongfulness
(7) Circumstances precluding wrongfulness are to be of that act in relation to the former State to the extent
distinguished from other arguments which may have the that the act remains within the limits of that consent.
effect of allowing a State to avoid responsibility. They
have nothing to do with questions of the jurisdiction of
a court or tribunal over a dispute or the admissibility of a Commentary
claim. They are to be distinguished from the constituent
requirements of the obligation, i.e. those elements which (1) Article 20 reflects the basic international law princi-
have to exist for the issue of wrongfulness to arise in the ple of consent in the particular context of Part One. In ac-
first place and which are in principle specified by the ob- cordance with this principle, consent by a State to particu-
ligation itself. In this sense the circumstances precluding lar conduct by another State precludes the wrongfulness
wrongfulness operate like defences or excuses in internal of that act in relation to the consenting State, provided the
legal systems, and the circumstances identified in chap- consent is valid and to the extent that the conduct remains
ter V are recognized by many legal systems, often under within the limits of the consent given.
the same designation.315 On the other hand, there is no
common approach to these circumstances in internal law, (2) It is a daily occurrence that States consent to con-
and the conditions and limitations in chapter V have been duct of other States which, without such consent, would
developed independently. constitute a breach of an international obligation. Simple
examples include transit through the airspace or internal
(8) Just as the articles do not deal with questions of the waters of a State, the location of facilities on its terri-
jurisdiction of courts or tribunals, so they do not deal with tory or the conduct of official investigations or inquiries
issues of evidence or the burden of proof. In a bilateral there. But a distinction must be drawn between consent in
dispute over State responsibility, the onus of establish- relation to a particular situation or a particular course of
ing responsibility lies in principle on the claimant State.
Where conduct in conflict with an international obligation 316 For the effect of contribution to the injury by the injured State or
is attributable to a State and that State seeks to avoid its other person or entity, see article 39 and commentary. This does not pre-
responsibility by relying on a circumstance under chapter clude wrongfulness but is relevant in determining the extent and form
of reparation.
V, however, the position changes and the onus lies on that 317 Cf. Diversion of Water from the Meuse, Judgment, 1937, P.C.I.J.,
State to justify or excuse its conduct. Indeed, it is often the Series A/B, No. 70, p. 4, especially at pp. 50 and 77. See also the
case that only that State is fully aware of the facts which fourth report on the law of treaties of Special Rapporteur Fitzmaurice
might excuse its non-performance. (footnote 307 above), pp. 43–47; D. W. Greig, “Reciprocity, proportion-
ality and the law of treaties”, Virginia Journal of International Law,
310 Yearbook... 1956, vol. II, pp. 219–225, document A/CN.4/96. vol. 34 (1994), p. 295; and for a comparative review, G. H. Treitel,
311 Remedies for Breach of Contract: A Comparative Account (Oxford,
Ibid., pp. 224–225. Issues raised by the Calvo clause and the
Clarendon Press, 1988), pp. 245–317. For the relationship between the
exhaustion of local remedies were dealt with under the same heading.
312 Yearbook ... 1958, vol. II, p. 72. For the discussion of the
exception of non-performance and countermeasures, see below, para-
graph (5) of commentary to Part Three, chap. II.
circumstances by Special Rapporteur García Amador, see his first re- 318 See, e.g., Factory at Chorzów, Jurisdiction (footnote 34 above),
port on State responsibility, Yearbook ... 1956, vol. II, pp. 203–209,
p. 31; cf. Gabčíkovo-Nagymaros Project (footnote 27 above), p. 67,
document A/CN.4/96, and his third report on State responsibility,
para. 110.
Yearbook ... 1958, vol. II, pp. 50–55, document A/CN.4/111. 319 See J. J. A. Salmon, “Des ‘mains propres’ comme condition
313 See the fourth report on the law of treaties of Special Rappor-
de recevabilité des réclamations internationales”, Annuaire français
teur Fitzmaurice (footnote 307 above), pp. 44–47, and his comments,
de droit international, vol. 10 (1964), p. 225; A. Miaja de la Muela,
ibid., pp. 63–74.
314 See article 73 of the Convention.
“Le rôle de la condition des mains propres de la personne lésée dans
les réclamations devant les tribunaux internationaux”, Mélanges offerts
315 See the comparative review by C. von Bar, The Common Euro- à Juraj Andrassy (The Hague, Martinus Nijhoff, 1968), p. 189, and
pean Law of Torts (Oxford University Press, 2000), vol. 2, pp. 499– the dissenting opinion of Judge Schwebel in Military and Paramilitary
592. Activities in and against Nicaragua (footnote 36 above), pp. 392–394.
296
Annex 13
conduct, and consent in relation to the underlying obliga- expression of the will of the State, as well as rules of in-
tion itself. In the case of a bilateral treaty, the States parties ternal law to which, in certain cases, international law re-
can at any time agree to terminate or suspend the treaty, fers.
in which case obligations arising from the treaty will be
terminated or suspended accordingly.320 But quite apart (6) Who has authority to consent to a departure from
from that possibility, States have the right to dispense with a particular rule may depend on the rule. It is one thing
the performance of an obligation owed to them individu- to consent to a search of embassy premises, another to
ally, or generally to permit conduct to occur which (ab- the establishment of a military base on the territory of a
sent such permission) would be unlawful so far as they are State. Different officials or agencies may have authority
concerned. In such cases, the primary obligation contin- in different contexts, in accordance with the arrangements
ues to govern the relations between the two States, but it is made by each State and general principles of actual and
displaced on the particular occasion or for the purposes of ostensible authority. But in any case, certain modalities
the particular conduct by reason of the consent given. need to be observed for consent to be considered valid.
Consent must be freely given and clearly established. It
(3) Consent to the commission of otherwise wrongful must be actually expressed by the State rather than merely
conduct may be given by a State in advance or even at the presumed on the basis that the State would have consented
time it is occurring. By contrast, cases of consent given if it had been asked. Consent may be vitiated by error,
after the conduct has occurred are a form of waiver or fraud, corruption or coercion. In this respect, the princi-
acquiescence, leading to loss of the right to invoke ples concerning the validity of consent to treaties provide
responsibility. This is dealt with in article 45. relevant guidance.
(4) In order to preclude wrongfulness, consent dispens- (7) Apart from drawing attention to prerequisites to a
ing with the performance of an obligation in a particular valid consent, including issues of the authority to consent,
case must be “valid”. Whether consent has been validly the requirement for consent to be valid serves a further
given is a matter addressed by international law rules function. It points to the existence of cases in which con-
outside the framework of State responsibility. Issues in- sent may not be validly given at all. This question is dis-
clude whether the agent or person who gave the consent cussed in relation to article 26 (compliance with peremp-
was authorized to do so on behalf of the State (and if not, tory norms), which applies to chapter V as a whole.323
whether the lack of that authority was known or ought
to have been known to the acting State), or whether the (8) Examples of consent given by a State which has the
consent was vitiated by coercion or some other factor.321 effect of rendering certain conduct lawful include com-
Indeed there may be a question whether the State could missions of inquiry sitting on the territory of another
validly consent at all. The reference to a “valid consent” State, the exercise of jurisdiction over visiting forces,
in article 20 highlights the need to consider these issues humanitarian relief and rescue operations and the arrest
in certain cases. or detention of persons on foreign territory. In the Savar-
kar case, the arbitral tribunal considered that the arrest
(5) Whether a particular person or entity had the author- of Savarkar was not a violation of French sovereignty as
ity to grant consent in a given case is a separate question France had implicitly consented to the arrest through the
from whether the conduct of that person or entity was at- conduct of its gendarme, who aided the British authorities
tributable to the State for the purposes of chapter II. For in the arrest.324 In considering the application of article
example, the issue has arisen whether consent expressed 20 to such cases it may be necessary to have regard to
by a regional authority could legitimize the sending of the relevant primary rule. For example, only the head of
foreign troops into the territory of a State, or whether such a diplomatic mission can consent to the receiving State’s
consent could only be given by the central Government, entering the premises of the mission.325
and such questions are not resolved by saying that the acts
of the regional authority are attributable to the State under (9) Article 20 is concerned with the relations between
article 4.322 In other cases, the “legitimacy” of the Gov- the two States in question. In circumstances where the
ernment which has given the consent has been questioned. consent of a number of States is required, the consent
Sometimes the validity of consent has been questioned of one State will not preclude wrongfulness in relation
because the consent was expressed in violation of rele- to another.326 Furthermore, where consent is relied on to
vant provisions of the State’s internal law. These questions
323
depend on the rules of international law relating to the See paragraph (6) of the commentary to article 26.
324 UNRIAA, vol. XI (Sales No. 61.V.4), p. 243, at pp. 252–255
320 1969 Vienna Convention, art. 54 (b). (1911).
321 See, e.g., the issue of Austrian consent to the Anschluss of 325 Vienna Convention on Diplomatic Relations, art. 22, para. 1.
1938, dealt with by the Nuremberg Tribunal. The tribunal denied 326 Austrian consent to the proposed customs union of 1931 would
that Austrian consent had been given; even if it had, it would have not have precluded its wrongfulness in regard of the obligation to
been coerced and did not excuse the annexation. See “International respect Austrian independence owed by Germany to all the parties
Military Tribunal (Nuremberg), judgment and sentences October 1, 1946: to the Treaty of Peace between the Allied and Associated Powers and
judgment”, reprinted in AJIL, vol. 41, No. 1 (January 1947) p. 172, at Germany (Treaty of Versailles). Likewise, Germany’s consent would
pp. 192–194. not have precluded the wrongfulness of the customs union in respect
322 This issue arose with respect to the dispatch of Belgian troops of the obligation of the maintenance of its complete independence
to the Republic of the Congo in 1960. See Official Records of the imposed on Austria by the Treaty of Peace between the Allied and
Security Council, Fifteenth Year, 873rd meeting, 13–14 July 1960, Associated Powers and Austria (Peace Treaty of Saint-Germain-en-
particularly the statement of the representative of Belgium, paras. 186– Laye). See Customs Régime between Germany and Austria, Advisory
188 and 209. Opinion, 1931, P.C.I.J., Series A/B, No. 41, p. 37, at pp. 46 and 49.
297
Annex 13
preclude wrongfulness, it will be necessary to show that (2) Self-defence may justify non-performance of certain
the conduct fell within the limits of the consent. Con- obligations other than that under Article 2, paragraph 4,
sent to overflight by commercial aircraft of another State of the Charter of the United Nations, provided that such
would not preclude the wrongfulness of overflight by air- non-performance is related to the breach of that provision.
craft transporting troops and military equipment. Consent Traditional international law dealt with these problems by
to the stationing of foreign troops for a specific period instituting a separate legal regime of war, defining the
would not preclude the wrongfulness of the stationing of scope of belligerent rights and suspending most treaties
such troops beyond that period.327 These limitations are in force between the belligerents on the outbreak of war.330
indicated by the words “given act” in article 20 as well as In the Charter period, declarations of war are exceptional
by the phrase “within the limits of that consent”. and military actions proclaimed as self-defence by one
or both parties occur between States formally at “peace”
(10) Article 20 envisages only the consent of States to with each other.331 The 1969 Vienna Convention leaves
conduct otherwise in breach of an international obliga- such issues to one side by providing in article 73 that the
tion. International law may also take into account the Convention does not prejudice “any question that may
consent of non-State entities such as corporations or pri- arise in regard to a treaty ... from the outbreak of hostili-
vate persons. The extent to which investors can waive the ties between States”.
rules of diplomatic protection by agreement in advance
has long been controversial, but under the Convention (3) This is not to say that self-defence precludes the
on the Settlement of Investment Disputes between States wrongfulness of conduct in all cases or with respect to all
and Nationals of other States (art. 27, para. 1), consent obligations. Examples relate to international humanitarian
by an investor to arbitration under the Convention has the law and human rights obligations. The Geneva Conven-
effect of suspending the right of diplomatic protection tions for the protection of war victims of 12 August 1949
by the investor’s national State. The rights conferred by and the Protocol Additional to the Geneva Conventions of
international human rights treaties cannot be waived by 12 August 1949, and relating to the protection of victims
their beneficiaries, but the individual’s free consent may of international armed conflicts (Protocol I) apply equally
be relevant to their application.328 In these cases the par- to all the parties in an international armed conflict, and
ticular rule of international law itself allows for the con- the same is true of customary international humanitarian
sent in question and deals with its effect. By contrast, ar- law.332 Human rights treaties contain derogation provi-
ticle 20 states a general principle so far as enjoyment of sions for times of public emergency, including actions
the rights and performance of the obligations of States are taken in self-defence. As to obligations under internation-
concerned. al humanitarian law and in relation to non-derogable hu-
man rights provisions, self-defence does not preclude the
wrongfulness of conduct.
Article 21. Self-defence
The wrongfulness of an act of a State is precluded (4) ICJ in its advisory opinion on the Legality of the
if the act constitutes a lawful measure of self-defence Threat or Use of Nuclear Weapons provided some guid-
taken in conformity with the Charter of the United ance on this question. One issue before the Court was
Nations. whether a use of nuclear weapons would necessarily be a
breach of environmental obligations because of the mas-
sive and long-term damage such weapons can cause. The
Commentary Court said:
[T]he issue is not whether the treaties relating to the protection of
(1) The existence of a general principle admitting self- the environment are or are not applicable during an armed conflict,
defence as an exception to the prohibition against the use but rather whether the obligations stemming from these treaties were
of force in international relations is undisputed. Article 51 intended to be obligations of total restraint during military conflict.
of the Charter of the United Nations preserves a State’s The Court does not consider that the treaties in question could have
“inherent right” of self-defence in the face of an armed intended to deprive a State of the exercise of its right of self-defence
attack and forms part of the definition of the obligation under international law because of its obligations to protect the envi-
to refrain from the threat or use of force laid down in Ar- ronment. Nonetheless, States must take environmental considerations
ticle 2, paragraph 4. Thus, a State exercising its inherent into account when assessing what is necessary and proportionate in the
pursuit of legitimate military objectives. Respect for the environment
right of self-defence as referred to in Article 51 of the
Charter is not, even potentially, in breach of Article 2, para- 330 See further Lord McNair and A. D. Watts, The Legal Effects of
graph 4.329 War, 4th ed. (Cambridge University Press, 1966).
331 In Oil Platforms, Preliminary Objection (see footnote 208 above),
327 The non-observance of a condition placed on the consent will
it was not denied that the 1955 Treaty of Amity, Economic Relations
not necessarily take conduct outside of the limits of the consent. For and Consular Rights remained in force, despite many actions by United
example, consent to a visiting force on the territory of a State may be States naval forces against the Islamic Republic of Iran. In that case
subject to a requirement to pay rent for the use of facilities. While the both parties agreed that to the extent that any such actions were justified
non-payment of the rent would no doubt be a wrongful act, it would not by self-defence they would be lawful.
transform the visiting force into an army of occupation. 332 As the Court said of the rules of international humanitarian law
328 See, e.g., International Covenant on Civil and Political Rights,
in the advisory opinion on the Legality of the Threat or Use of Nuclear
arts. 7; 8, para. 3; 14, para. 3 (g); and 23, para. 3. Weapons (see footnote 54 above), p. 257, para. 79, “they constitute
329 Cf. Legality of the Threat or Use of Nuclear Weapons (footnote intransgressible principles of international customary law”. On the rela-
54 above), p. 244, para. 38, and p. 263, para. 96, emphasizing the law- tionship between human rights and humanitarian law in time of armed
fulness of the use of force in self-defence. conflict, see page 240, para. 25.
298
Annex 13
is one of the elements that go to assessing whether an action is in con- wrongfulness. Chapter II of Part Three regulates counter-
formity with the principles of necessity and proportionality. measures in further detail.
A State acting in self-defence is “totally restrained” by an
international obligation if that obligation is expressed or (2) Judicial decisions, State practice and doctrine con-
intended to apply as a definitive constraint even to States firm the proposition that countermeasures meeting certain
in armed conflict.334 substantive and procedural conditions may be legitimate.
In the Gabčíkovo-Nagymaros Project case, ICJ clearly
accepted that countermeasures might justify otherwise
(5) The essential effect of article 21 is to preclude the unlawful conduct “taken in response to a previous inter-
wrongfulness of conduct of a State acting in self-defence national wrongful act of another State and … directed
vis-à-vis an attacking State. But there may be effects vis- against that State”,336 provided certain conditions are met.
à-vis third States in certain circumstances. In its advisory Similar recognition of the legitimacy of measures of this
opinion on the Legality of the Threat or Use of Nuclear kind in certain cases can be found in arbitral decisions, in
Weapons, the Court observed that: particular the “Naulilaa”,337 “Cysne”,338 and Air Service
[A]s in the case of the principles of humanitarian law applicable in Agreement339 awards.
armed conflict, international law leaves no doubt that the principle of
neutrality, whatever its content, which is of a fundamental character (3) In the literature concerning countermeasures, ref-
similar to that of the humanitarian principles and rules, is applicable
(subject to the relevant provisions of the United Nations Charter), to erence is sometimes made to the application of a “sanc-
all international armed conflict, whatever type of weapons might be tion”, or to a “reaction” to a prior internationally wrong-
used. ful act; historically the more usual terminology was that
of “legitimate reprisals” or, more generally, measures of
The law of neutrality distinguishes between conduct as “self-protection” or “self-help”. The term “sanctions” has
against a belligerent and conduct as against a neutral. But been used for measures taken in accordance with the con-
neutral States are not unaffected by the existence of a state stituent instrument of some international organization, in
of war. Article 21 leaves open all issues of the effect of particular under Chapter VII of the Charter of the United
action in self-defence vis-à-vis third States. Nations—despite the fact that the Charter uses the term
“measures”, not “sanctions”. The term “reprisals” is now
(6) Thus, article 21 reflects the generally accepted posi- no longer widely used in the present context, because of
tion that self-defence precludes the wrongfulness of the its association with the law of belligerent reprisals involv-
conduct taken within the limits laid down by international ing the use of force. At least since the Air Service Agree-
law. The reference is to action “taken in conformity with ment arbitration,340 the term “countermeasures” has been
the Charter of the United Nations”. In addition, the term preferred, and it has been adopted for the purposes of the
“lawful” implies that the action taken respects those obli- present articles.
gations of total restraint applicable in international armed
conflict, as well as compliance with the requirements of (4) Where countermeasures are taken in accordance
proportionality and of necessity inherent in the notion of with article 22, the underlying obligation is not suspend-
self-defence. Article 21 simply reflects the basic princi- ed, still less terminated; the wrongfulness of the conduct
ple for the purposes of chapter V, leaving questions of the in question is precluded for the time being by reason of its
extent and application of self-defence to the applicable character as a countermeasure, but only provided that and
primary rules referred to in the Charter. for so long as the necessary conditions for taking coun-
termeasures are satisfied. These conditions are set out
in Part Three, chapter II, to which article 22 refers. As a
Article 22. Countermeasures in respect of response to internationally wrongful conduct of another
an internationally wrongful act State, countermeasures may be justified only in relation to
that State. This is emphasized by the phrases “if and to the
The wrongfulness of an act of a State not in con- extent” and “countermeasures taken against” the respon-
formity with an international obligation towards an- sible State. An act directed against a third State would not
other State is precluded if and to the extent that the act fit this definition and could not be justified as a coun-
constitutes a countermeasure taken against the latter termeasure. On the other hand, indirect or consequential
State in accordance with chapter II of Part Three. effects of countermeasures on third parties, which do not
involve an independent breach of any obligation to those
third parties, will not take a countermeasure outside the
Commentary scope of article 22.
(1) In certain circumstances, the commission by one (5) Countermeasures may only preclude wrongfulness
State of an internationally wrongful act may justify anoth- in the relations between an injured State and the State
er State injured by that act in taking non-forcible counter- which has committed the internationally wrongful act.
measures in order to procure its cessation and to achieve
reparation for the injury. Article 22 deals with this situ- 336 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 55,
ation from the perspective of circumstances precluding para. 83.

337 Portuguese Colonies case (Naulilaa incident), UNRIAA,
333 Ibid., p. 242, para. 30. vol. II (Sales No. 1949.V.1), p. 1011, at pp. 1025–1026 (1928).
334 338 Ibid., p. 1035, at p. 1052 (1930).
See, e.g., the Convention on the Prohibition of Military or any
Other Hostile Use of Environmental Modification Techniques. 339 Air Service Agreement (see footnote 28 above).
I.C.J. Reports 1996 (see footnote 54 above), p. 261, para. 89. 0 Ibid., especially pp. 443–446, paras. 80–98.
299
Annex 13
The principle is clearly expressed in the “Cysne” case, (a) the situation of force majeure is due, either alone
where the tribunal stressed that: or in combination with other factors, to the conduct of
the State invoking it; or
reprisals, which constitute an act in principle contrary to the law of
nations, are defensible only insofar as they were provoked by some
other act likewise contrary to that law. Only reprisals taken against the (b) the State has assumed the risk of that situation
provoking State are permissible. Admittedly, it can happen that legiti- occurring.
mate reprisals taken against an offending State may affect the nationals
of an innocent State. But that would be an indirect and unintentional
consequence which, in practice, the injured State will always endeavour
to avoid or to limit as far as possible.1 Commentary
Accordingly, the wrongfulness of Germany’s conduct vis-

à-vis Portugal was not precluded. Since it involved the use (1) Force majeure is quite often invoked as a ground
of armed force, this decision concerned belligerent repris- for precluding the wrongfulness of an act of a State.345 It
als rather than countermeasures in the sense of article 22. involves a situation where the State in question is in ef-
But the same principle applies to countermeasures, as the fect compelled to act in a manner not in conformity with
Court confirmed in the Gabčíkovo-Nagymaros Project the requirements of an international obligation incumbent
case when it stressed that the measure in question must be upon it. Force majeure differs from a situation of distress
“directed against” the responsible State.342 (art. 24) or necessity (art. 25) because the conduct of the
State which would otherwise be internationally wrong-
(6) If article 22 had stood alone, it would have been nec- ful is involuntary or at least involves no element of free
essary to spell out other conditions for the legitimacy of choice.
countermeasures, including in particular the requirement
of proportionality, the temporary or reversible character (2) A situation of force majeure precluding wrongful-
of countermeasures and the status of certain fundamen- ness only arises where three elements are met: (a) the act
tal obligations which may not be subject to countermeas- in question must be brought about by an irresistible force
ures. Since these conditions are dealt with in Part Three, or an unforeseen event; (b) which is beyond the control
chapter II, it is sufficient to make a cross reference to of the State concerned; and (c) which makes it materi-
them here. Article 22 covers any action which qualifies ally impossible in the circumstances to perform the ob-
as a countermeasure in accordance with those conditions. ligation. The adjective “irresistible” qualifying the word
One issue is whether countermeasures may be taken by
“force” emphasizes that there must be a constraint which
third States which are not themselves individually injured
by the internationally wrongful act in question, although the State was unable to avoid or oppose by its own means.
they are owed the obligation which has been breached.343 To have been “unforeseen” the event must have been nei-
For example, in the case of an obligation owed to the in- ther foreseen nor of an easily foreseeable kind. Further the
ternational community as a whole ICJ has affirmed that “irresistible force” or “unforeseen event” must be caus-
all States have a legal interest in compliance.344 Arti- ally linked to the situation of material impossibility, as
cle 54 leaves open the question whether any State may indicated by the words “due to force majeure … making
take measures to ensure compliance with certain interna- it materially impossible”. Subject to paragraph 2, where
tional obligations in the general interest as distinct from these elements are met, the wrongfulness of the State’s
its own individual interest as an injured State. While ar- conduct is precluded for so long as the situation of force
ticle 22 does not cover measures taken in such a case to majeure subsists.
the extent that these do not qualify as countermeasures,
neither does it exclude that possibility.
(3) Material impossibility of performance giving rise to
force majeure may be due to a natural or physical event
(e.g. stress of weather which may divert State aircraft
Article 23. Force majeure into the territory of another State, earthquakes, floods or
drought) or to human intervention (e.g. loss of control over
a portion of the State’s territory as a result of an insurrec-
1. The wrongfulness of an act of a State not in con-
tion or devastation of an area by military operations car-
formity with an international obligation of that State
is precluded if the act is due to force majeure, that is ried out by a third State), or some combination of the two.
the occurrence of an irresistible force or of an unfore- Certain situations of duress or coercion involving force
seen event, beyond the control of the State, making it imposed on the State may also amount to force majeure if
materially impossible in the circumstances to perform they meet the various requirements of article 23. In par-
the obligation. ticular, the situation must be irresistible, so that the State
concerned has no real possibility of escaping its effects.
2. Paragraph 1 does not apply if: Force majeure does not include circumstances in which
performance of an obligation has become more difficult,
341 “Cysne”(see footnote 338 above), pp. 1056–1057. for example due to some political or economic crisis. Nor
342
Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 55, does it cover situations brought about by the neglect or
para. 83.
343 For the distinction between injured States and other States 345 “‘Force majeure’ and ‘fortuitous event’ as circumstances
entitled to invoke State responsibility, see articles 42 and 48 and precluding wrongfulness: survey of State practice, international judicial
commentaries. decisions and doctrine”, study prepared by the Secretariat (Yearbook …
344 Barcelona Traction (see footnote 25 above), p. 32, para. 33. 1978, vol. II (Part One), p. 61, document A/CN.4/315).
300
Annex 13
default of the State concerned,346 even if the resulting in- the principle that wrongfulness is precluded has been ac-
jury itself was accidental and unintended.347 cepted.351
(4) In drafting what became article 61 of the 1969 Vi- (6) Apart from aerial incidents, the principle in ar-
enna Convention, ILC took the view that force majeure ticle 23 is also recognized in relation to ships in inno-
was a circumstance precluding wrongfulness in relation cent passage by article 14, paragraph 3, of the Conven-
to treaty performance, just as supervening impossibility tion on the Territorial Sea and the Contiguous Zone (the
of performance was a ground for termination of a trea- United Nations Convention on the Law of the Sea, art. 18,
ty.348 The same view was taken at the United Nations para. 2), as well as in article 7, paragraph 1, of the Con-
Conference on the Law of Treaties.349 But in the interests vention on Transit Trade of Land-locked States. In these
of the stability of treaties, the Conference insisted on a provisions, force majeure is incorporated as a constitu-
narrow formulation of article 61 so far as treaty termi- ent element of the relevant primary rule; nonetheless, its
nation is concerned. The degree of difficulty associated acceptance in these cases helps to confirm the exist-
with force majeure as a circumstance precluding wrong- ence of a general principle of international law to similar
fulness, though considerable, is less than is required by ar- effect.
ticle 61 for termination of a treaty on grounds of super-
vening impossibility, as ICJ pointed out in the Gabčíkovo- (7) The principle has also been accepted by internation-
Nagymaros Project case: al tribunals. Mixed claims commissions have frequently
Article 61, paragraph 1, requires the “permanent disappearance or de-
cited the unforeseeability of attacks by rebels in denying
struction of an object indispensable for the execution” of the treaty to the responsibility of the territorial State for resulting dam-
justify the termination of a treaty on grounds of impossibility of per- age suffered by foreigners.352 In the Lighthouses arbitra-
formance. During the conference, a proposal was made to extend the tion, a lighthouse owned by a French company had been
scope of the article by including in it cases such as the impossibility requisitioned by the Government of Greece in 1915 and
to make certain payments because of serious financial difficulties ...
Although it was recognized that such situations could lead to a preclu- was subsequently destroyed by enemy action. The arbi-
sion of the wrongfulness of non-performance by a party of its treaty tral tribunal denied the French claim for restoration of the
obligations, the participating States were not prepared to consider such lighthouse on grounds of force majeure.353 In the Rus-
situations to be a ground for terminating or suspending a treaty, and sian Indemnity case, the principle was accepted but the
preferred to limit themselves to a narrower concept.0
plea of force majeure failed because the payment of the
(5) In practice, many of the cases where “impossibility” debt was not materially impossible.354 Force majeure was
has been relied upon have not involved actual impossibil- acknowledged as a general principle of law (though again
ity as distinct from increased difficulty of performance the plea was rejected on the facts of the case) by PCIJ
and the plea of force majeure has accordingly failed. But in the Serbian Loans and Brazilian Loans cases.355 More
cases of material impossibility have occurred, e.g. where recently, in the “Rainbow Warrior” arbitration, France
a State aircraft is forced, due to damage or loss of control relied on force majeure as a circumstance precluding the
of the aircraft owing to weather, into the airspace of an- wrongfulness of its conduct in removing the officers from
other State without the latter’s authorization. In such cases Hao and not returning them following medical treatment.
The tribunal dealt with the point briefly:
346 For example, in relation to occurrences such as the bombing of
New Zealand is right in asserting that the excuse of force majeure is
La Chaux-de-Fonds by German airmen on 17 October 1915, and of not of relevance in this case because the test of its applicability is of
Porrentruy by a French airman on 26 April 1917, ascribed to negli-
gence on the part of the airmen, the belligerent undertook to punish the 351 See, e.g., the cases of accidental intrusion into airspace attrib-
offenders and make reparation for the damage suffered (study prepared utable to weather, and the cases of accidental bombing of neutral
by the Secretariat, ibid., paras. 255–256). territory attributable to navigational errors during the First World War
347 For example, in 1906 an American officer on the USS
discussed in the study prepared by the Secretariat (footnote 345 above),
Chattanooga was mortally wounded by a bullet from a French warship paras. 250–256. See also the exchanges of correspondence between
as his ship entered the Chinese harbour of Chefoo. The United States the States concerned in the incidents involving United States military
Government obtained reparation, having maintained that: aircraft entering the airspace of Yugoslavia in 1946, United States of
“While the killing of Lieutenant England can only be viewed as America, Department of State Bulletin (Washington, D.C.), vol. XV,
an accident, it cannot be regarded as belonging to the unavoidable No. 376 (15 September 1946), p. 502, reproduced in the study prepared
class whereby no responsibility is entailed. Indeed, it is not conceiv- by the Secretariat, para. 144, and the incident provoking the applica-
able how it could have occurred without the contributory element of tion to ICJ in 1954, I.C.J. Pleadings, Treatment in Hungary of Aircraft
lack of proper precaution on the part of those officers of the Dupetit and Crew of the United States of America, p. 14 (note to the Hungarian
Thouars who were in responsible charge of the rifle firing practice Government of 17 March 1953). It is not always clear whether these
and who failed to stop firing when the Chattanooga, in the course cases are based on distress or force majeure.
of her regular passage through the public channel, came into the 352 See, e.g., the decision of the American-British Claims Commis-
line of fire.” sion in the Saint Albans Raid case, Moore, History and Digest, vol. IV,
M. M. Whiteman, Damages in International Law (Washington, p. 4042 (1873), and the study prepared by the Secretariat (footnote 345
D.C., United States Government Printing Office, 1937), vol. I, p. 221. above), para. 339; the decisions of the United States-Venezuela Claims
See also the study prepared by the Secretariat (footnote 345 above), Commission in the Wipperman case, Moore, History and Digest, vol.
para. 130. III, p. 3039, and the study prepared by the Secretariat, paras. 349–350;
348 Yearbook … 1966, vol. II, p. 255. De Brissot and others case (footnote 117 above), and the study pre-
349 See, e.g., the proposal of the representative of Mexico, United pared by the Secretariat, para. 352; and the decision of the British-
Nations Conference on the Law of Treaties, First and second sessions, Mexican Claims Commission in the Gill case, UNRIAA, vol. V (Sales
Vienna, 26 March–24 May 1968 and 9 April–22 May 1969, Documents No. 1952.V.3), p. 157 (1931), and the study prepared by the Secretariat,
of the Conference (United Nations publication, Sales No. E.70.V.5), para. 463.
353 Lighthouses arbitration (see footnote 182 above), pp. 219–220.
Report of the Committee of the Whole on its work at the first session of
the Conference, document A/CONF.39/14, p. 182, para. 531 (a). 354 UNRIAA, vol. XI (Sales No. 61.V.4), p. 421, at p. 443 (1912).
350 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 63, 355 Serbian Loans, Judgment No. 14, 1929, P.C.I.J., Series A, No. 20,
para. 102. pp. 39–40; Brazilian Loans, Judgment No. 15, ibid., No. 21, p. 120.
301
Annex 13
absolute and material impossibility, and because a circumstance ity for a particular risk it cannot then claim force majeure
rendering performance more difficult or burdensome does not consti- to avoid responsibility. But the assumption of risk must
tute a case of force majeure.6
be unequivocal and directed towards those to whom the
(8) In addition to its application in inter-State cases as obligation is owed.
a matter of public international law, force majeure has
substantial currency in the field of international commer- Article 24. Distress
cial arbitration, and may qualify as a general principle of
law.357 1. The wrongfulness of an act of a State not in con-
formity with an international obligation of that State
(9) A State may not invoke force majeure if it has caused is precluded if the author of the act in question has
or induced the situation in question. In Libyan Arab For- no other reasonable way, in a situation of distress, of
eign Investment Company and The Republic of Burundi, saving the author’s life or the lives of other persons
the arbitral tribunal rejected a plea of force majeure be- entrusted to the author’s care.
cause “the alleged impossibility [was] not the result of an
2. Paragraph 1 does not apply if:
irresistible force or an unforeseen external event beyond
the control of Burundi. In fact, the impossibility is the (a) the situation of distress is due, either alone or in
result of a unilateral decision of that State ...”358 Under combination with other factors, to the conduct of the
the equivalent ground for termination of a treaty in article State invoking it; or
61 of the 1969 Vienna Convention, material impossibil-
ity cannot be invoked “if the impossibility is the result (b) the act in question is likely to create a compara-
of a breach by that party either of an obligation under the ble or greater peril.
treaty or of any other international obligation owed to any
other party to the treaty”. By analogy with this provision, Commentary
paragraph 2 (a) excludes the plea in circumstances where
force majeure is due, either alone or in combination with
other factors, to the conduct of the State invoking it. For (1) Article 24 deals with the specific case where an indi-
paragraph 2 (a) to apply it is not enough that the State vidual whose acts are attributable to the State is in a situ-
invoking force majeure has contributed to the situation ation of peril, either personally or in relation to persons
of material impossibility; the situation of force majeure under his or her care. The article precludes the wrong-
must be “due” to the conduct of the State invoking it. This fulness of conduct adopted by the State agent in circum-
allows for force majeure to be invoked in situations in stances where the agent had no other reasonable way of
which a State may have unwittingly contributed to the oc- saving life. Unlike situations of force majeure dealt with
currence of material impossibility by something which, in article 23, a person acting under distress is not acting
in hindsight, might have been done differently but which involuntarily, even though the choice is effectively nulli-
was done in good faith and did not itself make the event fied by the situation of peril.360 Nor is it a case of choos-
any less unforeseen. Paragraph 2 (a) requires that the ing between compliance with international law and other
State’s role in the occurrence of force majeure must be legitimate interests of the State, such as characterize situa-
substantial. tions of necessity under article 25. The interest concerned
is the immediate one of saving people’s lives, irrespective
of their nationality.
(10) Paragraph 2 (b) deals with situations in which the
State has already accepted the risk of the occurrence of (2) In practice, cases of distress have mostly involved
force majeure, whether it has done so in terms of the ob- aircraft or ships entering State territory under stress of
ligation itself or by its conduct or by virtue of some uni- weather or following mechanical or navigational failure.361
lateral act. This reflects the principle that force majeure An example is the entry of United States military aircraft
should not excuse performance if the State has undertaken into Yugoslavia’s airspace in 1946. On two occasions,
to prevent the particular situation arising or has otherwise United States military aircraft entered Yugoslav airspace
assumed that risk.359 Once a State accepts the responsibil- without authorization and were attacked by Yugoslav air
356 “Rainbow Warrior” (see footnote 46 above), p. 253.
defences. The United States Government protested the
357 Yugoslav action on the basis that the aircraft had entered
On force majeure in the case law of the Iran-United States Claims
Tribunal, see G. H. Aldrich, The Jurisprudence of the Iran-United States Yugoslav airspace solely in order to escape extreme dan-
Claims Tribunal (Oxford, Clarendon Press, 1996), pp. 306–320. Force ger. The Yugoslav Government responded by denouncing
majeure has also been recognized as a general principle of law by the the systematic violation of its airspace, which it claimed
European Court of Justice: see, e.g., case 145/85, Denkavit v. Belgium, could only be intentional in view of its frequency. A later
Eur. Court H.R., Reports 1987–2, p. 565; case 101/84, Commission of
the European Communities v. Italian Republic, ibid., Reports 1985–
note from the Yugoslav chargé d’affaires informed the
6, p. 2629. See also article 79 of the United Nations Convention on United States Department of State that Marshal Tito had
Contracts for the International Sale of Goods; P. Schlechtriem, ed.,
Commentary on the UN Convention on the International Sale of Goods, an agreement or obligation assuming in advance the risk of the particu-
2nd ed. (trans. G. Thomas) (Oxford, Clarendon Press, 1998), pp. lar force majeure event.
600–626; and article 7.1.7 of the UNIDROIT Principles, Principles of 360 For this reason, writers who have considered this situation have
International Commercial Contracts (Rome, Unidroit, 1994), pp. 169– often defined it as one of “relative impossibility” of complying with
171. the international obligation. See, e.g., O. J. Lissitzyn, “The treatment of
358 ILR, vol. 96 (1994), p. 318, para. 55. aerial intruders in recent practice and international law”, AJIL, vol. 47,
359 As the study prepared by the Secretariat (footnote 345 above), No. 4 (October 1953), p. 588.
para. 31, points out, States may renounce the right to rely on force 361 See the study prepared by the Secretariat (footnote 345 above),
majeure by agreement. The most common way of doing so would be by paras. 141–142 and 252.
302
Annex 13
forbidden any firing on aircraft which flew over Yugoslav (2) The reestablishment of the original situation of compliance
territory without authorization, presuming that, for its with the assignment in Hao as soon as the reasons of emergency
invoked to justify the repatriation had disappeared.
part, the United States Government “would undertake the
steps necessary to prevent these flights, except in the case (3) The existence of a good faith effort to try to obtain the consent
of emergency or bad weather, for which arrangements of New Zealand in terms of the 1986 Agreement.6
could be made by agreement between American and
Yugoslav authorities”.362 The reply of the United States In fact, the danger to one of the officers, though perhaps
Acting Secretary of State reiterated the assertion that no not life-threatening, was real and might have been immi-
United States planes had flown over Yugoslavia intention- nent, and it was not denied by the New Zealand physician
ally without prior authorization from Yugoslav authorities who subsequently examined him. By contrast, in the case
“unless forced to do so in an emergency”. However, the of the second officer, the justifications given (the need
Acting Secretary of State added: for medical examination on grounds of pregnancy and
the desire to see a dying father) did not justify emergency
I presume that the Government of Yugoslavia recognizes that in case action. The lives of the agent and the child were at no
a plane and its occupants are jeopardized, the aircraft may change its stage threatened and there were excellent medical facili-
course so as to seek safety, even though such action may result in flying ties nearby. The tribunal held that:
over Yugoslav territory without prior clearance.6
[C]learly these circumstances entirely fail to justify France’s re-
(3) Claims of distress have also been made in cases of sponsibility for the removal of Captain Prieur and from the breach
of its obligations resulting from the failure to return the two of-
violation of maritime boundaries. For example, in De- ficers to Hao (in the case of Major Mafart once the reasons for
cember 1975, after British naval vessels entered Icelandic their removal had disappeared). There was here a clear breach of its
territorial waters, the British Government claimed that obligations.6
the vessels in question had done so in search of “shelter
from severe weather, as they have the right to do under (5) The plea of distress is also accepted in many trea-
customary international law”.364 Iceland maintained that ties as a circumstance justifying conduct which would
British vessels were in its waters for the sole purpose of otherwise be wrongful. Article 14, paragraph 3, of the
provoking an incident, but did not contest the point that if Convention on the Territorial Sea and the Contiguous
the British vessels had been in a situation of distress, they Zone permits stopping and anchoring by ships during
could enter Icelandic territorial waters. their passage through foreign territorial seas insofar as
this conduct is rendered necessary by distress. This pro-
vision is repeated in much the same terms in article 18,
(4) Although historically practice has focused on cases paragraph 2, of the United Nations Convention on the Law
involving ships and aircraft, article 24 is not limited to such of the Sea.369 Similar provisions appear in the internation-
cases.365 The “Rainbow Warrior” arbitration involved a al conventions on the prevention of pollution at sea.370
plea of distress as a circumstance precluding wrongful-
ness outside the context of ships or aircraft. France sought
(6) Article 24 is limited to cases where human life is at
to justify its conduct in removing the two officers from
stake. The tribunal in the “Rainbow Warrior” arbitration
the island of Hao on the ground of “circumstances of dis-
appeared to take a broader view of the circumstances jus-
tress in a case of extreme urgency involving elementary
tifying a plea of distress, apparently accepting that a seri-
humanitarian considerations affecting the acting organs of
ous health risk would suffice. The problem with extending
the State”.366 The tribunal unanimously accepted that this
article 24 to less than life-threatening situations is where
plea was admissible in principle, and by majority that it
to place any lower limit. In situations of distress involving
was applicable to the facts of one of the two cases. As to
aircraft there will usually be no difficulty in establishing
the principle, the tribunal required France to show three
that there is a threat to life, but other cases present a wide
things:
range of possibilities. Given the context of chapter V and
the likelihood that there will be other solutions available
(1) The existence of very exceptional circumstances of extreme for cases which are not apparently life-threatening, it does
urgency involving medical or other considerations of an elementary
nature, provided always that a prompt recognition of the existence of 367 Ibid., p. 255, para. 79.
those exceptional circumstances is subsequently obtained from the 368
other interested party or is clearly demonstrated. Ibid., p. 263, para. 99.
369 See also articles 39, paragraph 1 (c), 98 and 109, of the Conven-
362 United States of America, Department of State Bulletin tion.
370 See, e.g., the International Convention for the Prevention of
(see footnote 351 above), reproduced in the study prepared by the
Secretariat (see footnote 345 above), para. 144. Pollution of the Sea by Oil, article IV, paragraph 1 (a) of which
363 Study prepared by the Secretariat (see footnote 345 above), provides that the prohibition on the discharge of oil into the sea does
para. 145. The same argument is found in the Memorial of 2 Decem- not apply if the discharge takes place “for the purpose of securing
ber 1958 submitted by the United States Government to ICJ in relation the safety of the ship, preventing damage to the ship or cargo, or sav-
to another aerial incident (I.C.J. Pleadings, Aerial Incident of 27 July ing life at sea”. See also the Convention on the Prevention of Marine
1955, pp. 358–359). Pollution by Dumping of Wastes and Other Matter, article V, para-
364 Official Records of the Security Council, Thirtieth Year, 1866th graph 1 of which provides that the prohibition on dumping of wastes
does not apply when it is “necessary to secure the safety of human life
meeting, 16 December 1975, para. 24; see the study prepared by the
or of vessels, aircraft, platforms or other man-made structures at sea
Secretariat (footnote 345 above), para. 136.
365 There have also been cases involving the violation of a land fron-
… in any case which constitutes a danger to human life or a real threat
to vessels, aircraft, platforms or other man-made structures at sea, if
tier in order to save the life of a person in danger. See, e.g., the case dumping appears to be the only way of averting the threat”. See also the
of violation of the Austrian border by Italian soldiers in 1862, study Convention for the Prevention of Marine Pollution by Dumping from
prepared by the Secretariat (footnote 345 above), para. 121. Ships and Aircraft (art. 8, para. 1); and the International Convention for
366 “Rainbow Warrior” (see footnote 46 above), pp. 254–255, the Prevention of Pollution from Ships, 1973 (MARPOL Convention),
para. 78. annex I, regulation 11 (a).
303
Annex 13
not seem necessary to extend the scope of distress beyond The words “comparable or greater peril” must be assessed
threats to life itself. In situations in which a State agent is in the context of the overall purpose of saving lives.
in distress and has to act to save lives, there should how-
ever be a certain degree of flexibility in the assessment of Article 25. Necessity
the conditions of distress. The “no other reasonable way”
criterion in article 24 seeks to strike a balance between 1. Necessity may not be invoked by a State as a
the desire to provide some flexibility regarding the choic- ground for precluding the wrongfulness of an act not
es of action by the agent in saving lives and the need to in conformity with an international obligation of that
confine the scope of the plea having regard to its excep- State unless the act:
tional character.
(a) is the only way for the State to safeguard an es-
sential interest against a grave and imminent peril;
(7) Distress may only be invoked as a circumstance pre-
and
cluding wrongfulness in cases where a State agent has
acted to save his or her own life or where there exists a (b) does not seriously impair an essential interest of
special relationship between the State organ or agent and the State or States towards which the obligation exists,
the persons in danger. It does not extend to more general or of the international community as a whole.
cases of emergencies, which are more a matter of neces- 2. In any case, necessity may not be invoked by a
sity than distress. State as a ground for precluding wrongfulness if:
(a) the international obligation in question excludes
(8) Article 24 only precludes the wrongfulness of con- the possibility of invoking necessity; or
duct so far as it is necessary to avoid the life-threatening
situation. Thus, it does not exempt the State or its agent (b) the State has contributed to the situation of
from complying with other requirements (national or in- necessity.
ternational), e.g. the requirement to notify arrival to the
relevant authorities, or to give relevant information about Commentary
the voyage, the passengers or the cargo.371
(1) The term “necessity” (état de nécessité) is used to
(9) As in the case of force majeure, a situation which denote those exceptional cases where the only way a State
has been caused or induced by the invoking State is not can safeguard an essential interest threatened by a grave
one of distress. In many cases the State invoking distress and imminent peril is, for the time being, not to perform
may well have contributed, even if indirectly, to the situ- some other international obligation of lesser weight or ur-
ation. Priority should be given to necessary life-saving gency. Under conditions narrowly defined in article 25,
measures, however, and under paragraph 2 (a), distress such a plea is recognized as a circumstance precluding
is only excluded if the situation of distress is due, either wrongfulness.
alone or in combination with other factors, to the conduct
of the State invoking it. This is the same formula as that (2) The plea of necessity is exceptional in a number of
adopted in respect of article 23, paragraph 2 (a).372 respects. Unlike consent (art. 20), self-defence (art. 21)
or countermeasures (art. 22), it is not dependent on the
(10) Distress can only preclude wrongfulness where the prior conduct of the injured State. Unlike force majeure
interests sought to be protected (e.g. the lives of passen- (art. 23), it does not involve conduct which is involuntary
gers or crew) clearly outweigh the other interests at stake or coerced. Unlike distress (art. 24), necessity consists
in the circumstances. If the conduct sought to be excused not in danger to the lives of individuals in the charge of a
endangers more lives than it may save or is otherwise like- State official but in a grave danger either to the essential
ly to create a greater peril it will not be covered by the plea interests of the State or of the international community
of distress. For instance, a military aircraft carrying ex- as a whole. It arises where there is an irreconcilable con-
plosives might cause a disaster by making an emergency flict between an essential interest on the one hand and an
landing, or a nuclear submarine with a serious breakdown obligation of the State invoking necessity on the other.
might cause radioactive contamination to a port in which These special features mean that necessity will only
it sought refuge. Paragraph 2 (b) stipulates that distress rarely be available to excuse non-performance of an ob-
does not apply if the act in question is likely to create a ligation and that it is subject to strict limitations to safe-
comparable or greater peril. This is consistent with para- guard against possible abuse.373
graph 1, which in asking whether the agent had “no other
reasonable way” to save life establishes an objective test. (3) There is substantial authority in support of the exist-
ence of necessity as a circumstance precluding wrongful-
371 See Cashin and Lewis v. The King, Canada Law Reports (1935),
p. 103 (even if a vessel enters a port in distress, it is not exempted 373 Perhaps the classic case of such an abuse was the occupation of
from the requirement to report on its voyage). See also the “Rebecca”, Luxembourg and Belgium by Germany in 1914, which Germany sought
Mexico-United States General Claims Commission, AJIL, vol. 23, to justify on the ground of necessity. See, in particular, the note present-
No. 4 (October 1929), p. 860 (vessel entered port in distress; merchan- ed on 2 August 1914 by the German Minister in Brussels to the Belgian
dise seized for customs offence: held, entry reasonably necessary in the Minister for Foreign Affairs, in J. B. Scott, ed., Diplomatic Documents
circumstances and not a mere matter of convenience; seizure therefore relating to the Outbreak of the European War (New York, Oxford Uni-
unlawful); the “May” v. The King, Canada Law Reports (1931), p. versity Press, 1916), part I, pp. 749–750, and the speech in the Reich-
374; the “Queen City” v. The King, ibid., p. 387; and Rex v. Flahaut, stag by the German Chancellor von Bethmann-Hollweg, on 4 August
Dominion Law Reports (1935), p. 685 (test of “real and irresistible 1914, containing the well-known words: wir sind jetzt in der Notwehr;
distress” applied). und Not kennt kein Gebot! (we are in a state of self-defence and neces-
372 See paragraph (9) of the commentary to article 23. sity knows no law), Jahrbuch des Völkerrechts, vol. III (1916), p. 728.
304
Annex 13
ness. It has been invoked by States and has been dealt with added Lord Ashburton, the British Government’s ad hoc
by a number of international tribunals. In these cases the envoy to Washington, “for the shortest possible period
plea of necessity has been accepted in principle, or at least during the continuance of an admitted overruling neces-
not rejected. sity, and strictly confined within the narrowest limits im-
posed by that necessity”.378
(4) In an Anglo-Portuguese dispute of 1832, the Por-
tuguese Government argued that the pressing necessity
of providing for the subsistence of certain contingents (6) In the Russian Fur Seals controversy of 1893, the
of troops engaged in quelling internal disturbances had “essential interest” to be safeguarded against a “grave and
justified its appropriation of property owned by British imminent peril” was the natural environment in an area
subjects, notwithstanding a treaty stipulation. The British not subject to the jurisdiction of any State or to any inter-
Government was advised that: national regulation. Facing the danger of extermination of
the Treaties between this Country and Portugal are [not] of so stubborn
a fur seal population by unrestricted hunting, the Russian
and unbending a nature, as to be incapable of modification under any Government issued a decree prohibiting sealing in an area
circumstances whatever, or that their stipulations ought to be so strictly of the high seas. In a letter to the British Ambassador dated
adhered to, as to deprive the Government of Portugal of the right of us- 12 February (24 February) 1893, the Russian Minister for
ing those means, which may be absolutely and indispensably necessary Foreign Affairs explained that the action had been taken
to the safety, and even to the very existence of the State.
because of the “absolute necessity of immediate provi-
The extent of the necessity, which will justify such an appropriation of sional measures” in view of the imminence of the hunting
the Property of British Subjects, must depend upon the circumstances season. He “emphasize[d] the essentially precautionary
of the particular case, but it must be imminent and urgent.
character of the above-mentioned measures, which were
taken under the pressure of exceptional circumstances”379
(5) The “Caroline” incident of 1837, though frequently and declared his willingness to conclude an agreement
referred to as an instance of self-defence, really involved with the British Government with a view to a longer-term
the plea of necessity at a time when the law concerning settlement of the question of sealing in the area.
the use of force had a quite different basis than it has at
present. In that case, British armed forces entered United (7) In the Russian Indemnity case, the Government of
States territory and attacked and destroyed a vessel owned the Ottoman Empire, to justify its delay in paying its debt
by United States citizens which was carrying recruits to the Russian Government, invoked among other reasons
and military and other material to Canadian insurgents. the fact that it had been in an extremely difficult finan-
In response to the protests by the United States, the British cial situation, which it described as “force majeure” but
Minister in Washington, Fox, referred to the “necessity of which was more like a state of necessity. The arbitral tri-
self-defence and self-preservation”; the same point was bunal accepted the plea in principle:
made by counsel consulted by the British Government,
who stated that “the conduct of the British Authorities” The exception of force majeure, invoked in the first place, is arguable in
was justified because it was “absolutely necessary as a international public law, as well as in private law; international law must
measure of precaution”.375 Secretary of State Webster adapt itself to political exigencies. The Imperial Russian Government
replied to Minister Fox that “nothing less than a clear expressly admits ... that the obligation for a State to execute treaties
may be weakened “if the very existence of the State is endangered, if
and absolute necessity can afford ground of justifica- observation of the international duty is ... self-destructive”.0
tion” for the commission “of hostile acts within the ter-
ritory of a Power at Peace”, and observed that the British
Government must prove that the action of its forces had It considered, however, that:
really been caused by “a necessity of self-defence, in- It would be a manifest exaggeration to admit that the payment (or the
stant, overwhelming, leaving no choice of means, and no contracting of a loan for the payment) of the relatively small sum of
moment for deliberation”.376 In his message to Congress 6 million francs due to the Russian claimants would have imperilled
of 7 December 1841, President Tyler reiterated that: the existence of the Ottoman Empire or seriously endangered its inter-
nal or external situation.1
This Government can never concede to any foreign Government the
power, except in a case of the most urgent and extreme necessity, of
invading its territory, either to arrest the persons or destroy the property In its view, compliance with an international obligation
of those who may have violated the municipal laws of such foreign must be “self-destructive” for the wrongfulness of the
Government.” conduct not in conformity with the obligation to be pre-
The incident was not closed until 1842, with an exchange cluded.382
of letters in which the two Governments agreed that “a 378 Ibid., p. 195. See Secretary of State Webster’s reply on page 201.
strong overpowering necessity may arise when this great 379 Ibid., 1893–1894 (London, HM Stationery Office, 1899), vol. 86,
principle may and must be suspended”. “It must be so”, p. 220; and the study prepared by the Secretariat (see footnote 345
above), para. 155.
Lord McNair, ed., International Law Opinions (Cambridge Uni- 380 See footnote 354 above; see also the study prepared by the Secre-
versity Press, 1956), vol. II, Peace, p. 232. tariat (footnote 345 above), para. 394.
375 See respectively W. R. Manning, ed., Diplomatic Correspond- 381 Ibid.
ence of the United States: Canadian Relations 1784–1860 (Wash- 382 A case in which the parties to the dispute agreed that very
ington, D.C., Carnegie Endowment for International Peace, 1943),
serious financial difficulties could justify a different mode of
vol. III, p. 422; and Lord McNair, ed., International Law Opinions
discharging the obligation other than that originally provided for arose in
(footnote 374 above), p. 221, at p. 228.
376 British and Foreign State Papers, 1840–1841 (London, Ridgway,
connection with the enforcement of the arbitral award in Forests of
Central Rhodopia, UNRIAA, vol. III (Sales No. 1949.V.2), p. 1405
1857), vol. 29, p. 1129. (1933); see League of Nations, Official Journal, 15th Year, No. 11
377 Ibid., 1841–1842, vol. 30, p. 194. (part I) (November 1934), p. 1432.
305
Annex 13
(8) In Société commerciale de Belgique,383 the Greek principle itself, the Court noted that the parties had both
Government owed money to a Belgian company under relied on the Commission’s draft article as an appropriate
two arbitral awards. Belgium applied to PCIJ for a dec- formulation, and continued:
laration that the Greek Government, in refusing to carry
The Court considers ... that the state of necessity is a ground recog-
out the awards, was in breach of its international obliga- nized by customary international law for precluding the wrongfulness
tions. The Greek Government pleaded the country’s seri- of an act not in conformity with an international obligation. It observes
ous budgetary and monetary situation.384 The Court noted moreover that such ground for precluding wrongfulness can only be ac-
that it was not within its mandate to declare whether the cepted on an exceptional basis. The International Law Commission was
of the same opinion when it explained that it had opted for a negative
Greek Government was justified in not executing the ar- form of words ...
bitral awards. However, the Court implicitly accepted the
basic principle, on which the two parties were in agree- Thus, according to the Commission, the state of necessity can only be
ment.385 invoked under certain strictly defined conditions which must be cu-
mulatively satisfied; and the State concerned is not the sole judge of
whether those conditions have been met.
(9) In March 1967 the Liberian oil tanker Torrey
... In the present case, the following basic conditions ... are relevant: it
Canyon went aground on submerged rocks off the coast of must have been occasioned by an “essential interest” of the State which
Cornwall outside British territorial waters, spilling large is the author of the act conflicting with one of its international obliga-
amounts of oil which threatened the English coastline. tions; that interest must have been threatened by a “grave and imminent
After various remedial attempts had failed, the British peril”; the act being challenged must have been the “only means” of
safeguarding that interest; that act must not have “seriously impair[ed]
Government decided to bomb the ship to burn the re- an essential interest” of the State towards which the obligation existed;
maining oil. This operation was carried out successfully. and the State which is the author of that act must not have “contributed
The British Government did not advance any legal jus- to the occurrence of the state of necessity”. Those conditions reflect
tification for its conduct, but stressed the existence of a customary international law. 9
situation of extreme danger and claimed that the deci-
sion to bomb the ship had been taken only after all other (12) The plea of necessity was apparently an issue in
means had failed.386 No international protest resulted. the Fisheries Jurisdiction case.390 Regulatory measures
A convention was subsequently concluded to cover future taken to conserve straddling stocks had been taken by the
cases where intervention might prove necessary to avert Northwest Atlantic Fisheries Organization (NAFO) but
serious oil pollution.387 had, in Canada’s opinion, proved ineffective for various
reasons. By the Coastal Fisheries Protection Act 1994,
Canada declared that the straddling stocks of the Grand
(10) In the “Rainbow Warrior” arbitration, the arbitral Banks were “threatened with extinction”, and asserted
tribunal expressed doubt as to the existence of the excuse that the purpose of the Act and regulations was “to enable
of necessity. It noted that the Commission’s draft arti- Canada to take urgent action necessary to prevent further
cle “allegedly authorizes a State to take unlawful action destruction of those stocks and to permit their rebuild-
invoking a state of necessity” and described the Commis- ing”. Canadian officials subsequently boarded and seized
sion’s proposal as “controversial”.388 a Spanish fishing ship, the Estai, on the high seas, leading
to a conflict with the European Union and with Spain.
(11) By contrast, in the Gabčíkovo-Nagymaros Project The Spanish Government denied that the arrest could be
case, ICJ carefully considered an argument based on the justified by concerns as to conservation “since it violates
Commission’s draft article (now article 25), expressly the established provisions of the NAFO Convention [Con-
accepting the principle while at the same time rejecting vention on Future Multilateral Cooperation in the North-
its invocation in the circumstances of that case. As to the west Atlantic Fisheries] to which Canada is a party”.391
Canada disagreed, asserting that “the arrest of the Estai
383 Société commerciale de Belgique, Judgment, 1939, P.C.I.J.,
was necessary in order to put a stop to the overfishing of
Series A/B, No. 78, p. 160.
384 P.C.I.J., Series C, No. 87, pp. 141 and 190; study prepared by the
Greenland halibut by Spanish fishermen”.392 The Court
Secretariat (footnote 345 above), para. 278. See generally paragraphs
held that it had no jurisdiction over the case.393
276–287 for the Greek arguments relative to the state of necessity.
385 See footnote 383 above; and the study prepared by the Sec-re- 389 Gabčíkovo-Nagymaros Project (see footnote 27 above), pp. 40–
tariat (footnote 345 above), para. 288. See also the Serbian Loans case, 41, paras. 51–52.
where the positions of the parties and the Court on the point were very 390 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the
similar (footnote 355 above); the French Company of Venezuelan Court, Judgment, I.C.J. Reports 1998, p. 432.
Railroads case (footnote 178 above) p. 353; and the study prepared 391 Ibid., p. 443, para. 20. For the European Community protest of
by the Secretariat (footnote 345 above), paras. 263–268 and 385–386. 10 March 1995, asserting that the arrest “cannot be justified by any
In his separate opinion in the Oscar Chinn case, Judge Anzilotti means”, see Memorial of Spain (Jurisdiction of the Court), I.C.J.
accepted the principle that “necessity may excuse the non-observance Pleadings, Fisheries Jurisdiction (Spain v. Canada), p. 17, at p. 38,
of international obligations”, but denied its applicability on the facts para. 15.
(Judgment, 1934, P.C.I.J., Series A/B, No. 63, p. 65, at pp. 112–114). 392 Fisheries Jurisdiction (see footnote 390 above), p. 443, para. 20.
386 The “Torrey Canyon”, Cmnd. 3246 (London, HM Stationery Of-
See also the Canadian Counter-Memorial (29 February 1996), I.C.J.
fice, 1967). Pleadings (footnote 391 above), paras. 17–45.
387 International Convention relating to Intervention on the High 393 By an Agreed Minute between Canada and the European Commu-
Seas in Cases of Oil Pollution Casualties. nity, Canada undertook to repeal the regulations applying the 1994 Act
388 “Rainbow Warrior” (see footnote 46 above), p. 254. In Libyan to Spanish and Portuguese vessels in the NAFO area and to release the
Arab Foreign Investment Company and The Republic of Burundi Estai. The parties expressly maintained “their respective positions on
(see footnote 358 above), p. 319, the tribunal declined to comment the conformity of the amendment of 25 May 1994 to Canada’s Coastal
on the appropriateness of codifying the doctrine of necessity, noting Fisheries Protection Act, and subsequent regulations, with customary
that the measures taken by Burundi did not appear to have been the international law and the NAFO Convention” and reserved “their abil-
only means of safeguarding an essential interest “against a grave and ity to preserve and defend their rights in conformity with international
imminent peril”. law”. See Canada-European Community: Agreed Minute on the Con-
306
Annex 13
(13) The existence and limits of a plea of necessity have (15) The first condition, set out in paragraph 1 (a), is
given rise to a long-standing controversy among writers. that necessity may only be invoked to safeguard an essen-
It was for the most part explicitly accepted by the early tial interest from a grave and imminent peril. The extent
writers, subject to strict conditions.394 In the nineteenth to which a given interest is “essential” depends on all the
century, abuses of necessity associated with the idea of circumstances, and cannot be prejudged. It extends to par-
“fundamental rights of States” led to a reaction against ticular interests of the State and its people, as well as of
the doctrine. During the twentieth century, the number of the international community as a whole. Whatever the in-
terest may be, however, it is only when it is threatened by
writers opposed to the concept of state of necessity in in-
a grave and imminent peril that this condition is satisfied.
ternational law increased, but the balance of doctrine has The peril has to be objectively established and not merely
continued to favour the existence of the plea.395 apprehended as possible. In addition to being grave, the
peril has to be imminent in the sense of proximate. How-
(14) On balance, State practice and judicial decisions ever, as the Court in the Gabčíkovo-Nagymaros Project
support the view that necessity may constitute a circum- case said:
stance precluding wrongfulness under certain very limit- That does not exclude ... that a “peril” appearing in the long term might
ed conditions, and this view is embodied in article 25. The be held to be “imminent” as soon as it is established, at the relevant
point in time, that the realization of that peril, however far off it might
cases show that necessity has been invoked to preclude be, is not thereby any less certain and inevitable.99
the wrongfulness of acts contrary to a broad range of ob-
ligations, whether customary or conventional in origin.396 Moreover, the course of action taken must be the “only
It has been invoked to protect a wide variety of interests, way” available to safeguard that interest. The plea is
including safeguarding the environment, preserving the excluded if there are other (otherwise lawful) means avail-
very existence of the State and its people in time of pub- able, even if they may be more costly or less convenient.
lic emergency, or ensuring the safety of a civilian popu- Thus, in the Gabčíkovo-Nagymaros Project case, the
lation. But stringent conditions are imposed before any Court was not convinced that the unilateral suspension
such plea is allowed. This is reflected in article 25. In par- and abandonment of the Project was the only course open
ticular, to emphasize the exceptional nature of necessity in the circumstances, having regard in particular to the
and concerns about its possible abuse, article 25 is cast amount of work already done and the money expended
on it, and the possibility of remedying any problems by
in negative language (“Necessity may not be invoked … other means.400 The word “way” in paragraph 1 (a) is not
unless”).397 In this respect it mirrors the language of ar- limited to unilateral action but may also comprise other
ticle 62 of the 1969 Vienna Convention dealing with fun- forms of conduct available through cooperative action
damental change of circumstances. It also mirrors that with other States or through international organizations
language in establishing, in paragraph 1, two conditions (for example, conservation measures for a fishery taken
without which necessity may not be invoked and exclud- through the competent regional fisheries agency). More-
ing, in paragraph 2, two situations entirely from the scope over, the requirement of necessity is inherent in the plea:
of the excuse of necessity.398 any conduct going beyond what is strictly necessary for
the purpose will not be covered.
servation and Management of Fish Stocks (Brussels, 20 April 1995),
ILM, vol. 34, No. 5 (September 1995), p. 1260. See also the Agree-
ment for the Implementation of the Provisions of the United Nations (16) It is not sufficient for the purposes of paragraph 1
Convention on the Law of the Sea of 10 December 1982 relating to the (a) that the peril is merely apprehended or contingent. It
Conservation and Management of Straddling Fish Stocks and Highly is true that in questions relating, for example, to conser-
Migratory Fish Stocks. vation and the environment or to the safety of large struc-
394 See B. Ayala, De jure et officiis bellicis et disciplina militari,
tures, there will often be issues of scientific uncertainty
libri tres (1582) (Washington, D.C., Carnegie Institution, 1912), vol.
II, p. 135; A. Gentili, De iure belli, libri tres (1612) (Oxford, Clarendon and different views may be taken by informed experts on
Press, 1933), vol. II, p. 351; H. Grotius, De jure belli ac pacis, libri whether there is a peril, how grave or imminent it is and
tres (1646) (Oxford, Clarendon Press, 1925), vol. II, pp. 193 et seq.; whether the means proposed are the only ones available
S. Pufendorf, De jure naturae et gentium, libri octo (1688) (Oxford, in the circumstances. By definition, in cases of necessity
Clarendon Press, 1934), vol. II, pp. 295–296; C. Wolff, Jus gentium the peril will not yet have occurred. In the Gabčíkovo-
methodo scientifica pertractatum (1764) (Oxford, Clarendon Press,
1934), pp. 173–174; and E. de Vattel, The Law of Nations or the Prin- Nagymaros Project case the Court noted that the invoking
ciples of Natural Law (1758) (Washington, D.C., Carnegie Institution, State could not be the sole judge of the necessity,401 but a
1916), vol. III, p. 149. measure of uncertainty about the future does not necessar-
395 For a review of the earlier doctrine, see Yearbook … 1980, vol.
ily disqualify a State from invoking necessity, if the peril
II (Part Two), pp. 47–49; see also P. A. Pillitu, Lo stato di necessità is clearly established on the basis of the evidence reason-
nel diritto internazionale (University of Perugia/Editrice Licosa, 1981);
J. Barboza, “Necessity (revisited) in international law”, Essays in In-
ably available at the time.
ternational Law in Honour of Judge Manfred Lachs, J. Makarczyk, ed.
(The Hague, Martinus Nijhoff, 1984), p. 27; and R. Boed, “State of (17) The second condition for invoking necessity, set out
necessity as a justification for internationally wrongful conduct”, Yale
Human Rights and Development Law Journal, vol. 3 (2000), p. 1. in paragraph 1 (b), is that the conduct in question must
396 Generally on the irrelevance of the source of the obligation not seriously impair an essential interest of the other State
breached, see article 12 and commentary. or States concerned, or of the international community as
397 This negative formulation was referred to by ICJ in the Gabčíkovo-
Nagymaros Project case (see footnote 27 above), p. 40, para. 51.
398 A further exclusion, common to all the circumstances precluding para. 54.
400 Ibid., pp. 42–43, para. 55.
wrongfulness, concerns peremptory norms (see article 26 and commen-
tary). 401 Ibid., p. 40, para. 51.
307
Annex 13
a whole (see paragraph (18) below). In other words, the (21) As embodied in article 25, the plea of necessity is
interest relied on must outweigh all other considerations, not intended to cover conduct which is in principle regu-
not merely from the point of view of the acting State but lated by the primary obligations. This has a particular im-
on a reasonable assessment of the competing interests, portance in relation to the rules relating to the use of force
whether these are individual or collective.402 in international relations and to the question of “military
necessity”. It is true that in a few cases, the plea of neces-
sity has been invoked to excuse military action abroad, in
(18) As a matter of terminology, it is sufficient to use the
particular in the context of claims to humanitarian inter-
phrase “international community as a whole” rather than
vention.406 The question whether measures of forcible hu-
“international community of States as a whole”, which
manitarian intervention, not sanctioned pursuant to Chap-
is used in the specific context of article 53 of the 1969
ters VII or VIII of the Charter of the United Nations, may
Vienna Convention. The insertion of the words “of States”
be lawful under modern international law is not covered
in article 53 of the Convention was intended to stress the
by article 25.407 The same thing is true of the doctrine of
paramountcy that States have over the making of inter-
“military necessity” which is, in the first place, the under-
national law, including especially the establishment of
lying criterion for a series of substantive rules of the law
norms of a peremptory character. On the other hand, ICJ
of war and neutrality, as well as being included in terms in
used the phrase “international community as a whole” in
a number of treaty provisions in the field of international
the Barcelona Traction case,403 and it is frequently used
humanitarian law.408 In both respects, while considera-
in treaties and other international instruments in the same
tions akin to those underlying article 25 may have a role,
sense as in paragraph 1(b).404
they are taken into account in the context of the formula-
tion and interpretation of the primary obligations.409
(19) Over and above the conditions in paragraph 1,
paragraph 2 lays down two general limits to any invo-
cation of necessity. This is made clear by the use of the Article 26. Compliance with peremptory norms
words “in any case”. Paragraph 2 (a) concerns cases
where the international obligation in question explicitly Nothing in this chapter precludes the wrongfulness
or implicitly excludes reliance on necessity. Thus, certain of any act of a State which is not in conformity with an
humanitarian conventions applicable to armed conflict obligation arising under a peremptory norm of gen-
expressly exclude reliance on military necessity. Others eral international law.
while not explicitly excluding necessity are intended to
apply in abnormal situations of peril for the responsible
State and plainly engage its essential interests. In such a Commentary
case the non-availability of the plea of necessity emerges
clearly from the object and the purpose of the rule. (1) In accordance with article 53 of the 1969 Vienna
Convention, a treaty which conflicts with a peremptory
(20) According to paragraph 2 (b), necessity may not norm of general international law is void. Under article
be relied on if the responsible State has contributed to the 64, an earlier treaty which conflicts with a new peremp-
situation of necessity. Thus, in the Gabčíkovo-Nagymaros
406 For example, in 1960 Belgium invoked necessity to justify its
Project case, ICJ considered that because Hungary had
military intervention in the Congo. The matter was discussed in the
“helped, by act or omission to bring about” the situation Security Council but not in terms of the plea of necessity as such.
of alleged necessity, it could not then rely on that situa- See Official Records of the Security Council, Fifteenth Year, 873rd
tion as a circumstance precluding wrongfulness.405 For a meeting, 13–14 July 1960, paras. 144, 182 and 192; 877th meeting,
plea of necessity to be precluded under paragraph 2 (b), 20–21 July 1960, paras. 31 et seq. and para. 142; 878th meeting,
the contribution to the situation of necessity must be suf- 21 July 1960, paras. 23 and 65; and 879th meeting, 21–22 July 1960,
paras. 80 et seq. and paras. 118 and 151. For the “Caroline” incident,
ficiently substantial and not merely incidental or periph- see above, paragraph (5).
eral. Paragraph 2 (b) is phrased in more categorical terms 407 See also article 26 and commentary for the general exclusion
than articles 23, paragraph 2 (a), and 24, paragraph 2 (a), of the scope of circumstances precluding wrongfulness of conduct in
because necessity needs to be more narrowly confined. breach of a peremptory norm.
408 See, e.g., article 23 (g) of the Regulations respecting the Laws
402 In the Gabčíkovo-Nagymaros Project case ICJ affirmed the and Customs of War on Land (annexed to the Hague Conventions II of
need to take into account any countervailing interest of the other State 1899 and IV of 1907), which prohibits the destruction of enemy proper-
concerned (see footnote 27 above), p. 46, para. 58. ty “unless such destruction or seizure be imperatively demanded by the
403 Barcelona Traction (see footnote 25 above), p. 32, para. 33. necessities of war”. Similarly, article 54, paragraph 5, of the Protocol
404 See, e.g., third preambular paragraph of the Convention on the
Additional to the Geneva Conventions of 12 August 1949, and relating
to the protection of victims of international armed conflicts (Protocol I),
Prevention and Punishment of Crimes against Internationally Protected appears to permit attacks on objects indispensable to the survival of the
Persons, including Diplomatic Agents; fourth preambular paragraph civilian population if “imperative military necessity” so requires.
of the International Convention Against the Taking of Hostages; fifth 409 See, e.g., M. Huber, “Die Kriegsrechtlichen Verträge und die
preambular paragraph of the Convention for the Suppression of Unlaw- Kriegsraison”, Zeitschrift für Völkerrecht, vol. VII (1913), p. 351;
ful Acts against the Safety of Maritime Navigation; third preambular D. Anzilotti, Corso di diritto internazionale (Rome, Athenaeum, 1915),
paragraph of the Convention on the Safety of United Nations and vol. III, p. 207; C. De Visscher, “Les lois de la guerre et la théorie de
Associated Personnel; tenth preambular paragraph of the International la nécessité”, RGDIP, vol. 24 (1917), p. 74; N. C. H. Dunbar, “Military
Convention for the Suppression of Terrorist Bombings; ninth preambu- necessity in war crimes trials”, BYBIL, 1952, vol. 29, p. 442; C. Green-
lar paragraph of the Rome Statute of the International Criminal Court; wood, “Historical development and legal basis”, The Handbook of
and ninth preambular paragraph of the International Convention for the Humanitarian Law in Armed Conflicts, D. Fleck, ed. (Oxford Universi-
Suppression of the Financing of Terrorism. ty Press, 1995), p. 1, at pp. 30–33; and Y. Dinstein, “Military necessity”,
405 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 46, Encyclopedia of Public International Law, R. Bernhardt, ed. (Amster-
para. 57. dam, Elsevier, 1997), vol. 3, pp. 395–397.
308
Annex 13
tory norm becomes void and terminates.410 The question class of norms to deal with the basic principle separately.
is what implications these provisions may have for the Hence, article 26 provides that nothing in chapter V can
matters dealt with in chapter V. preclude the wrongfulness of any act of a State which is
not in conformity with an obligation arising under a per-
(2) Sir Gerald Fitzmaurice as Special Rapporteur on the emptory norm of general international law.414
Law of Treaties treated this question on the basis of an
implied condition of “continued compatibility with inter- (5) The criteria for identifying peremptory norms of
national law”, noting that: general international law are stringent. Article 53 of the
A treaty obligation the observance of which is incompatible a new
1969 Vienna Convention requires not merely that the norm
rule or prohibition of international law in the nature of jus cogens will in question should meet all the criteria for recognition as
justify (and require) non-observance of any treaty obligation involving a norm of general international law, binding as such, but
such incompatibility … further that it should be recognized as having a peremp-
The same principle is applicable where circumstances arise subsequent
tory character by the international community of States
to the conclusion of a treaty, bringing into play an existing rule of inter- as a whole. So far, relatively few peremptory norms have
national law which was not relevant to the situation as it existed at the been recognized as such. But various tribunals, national
time of the conclusion of the treaty.11 and international, have affirmed the idea of peremptory
norms in contexts not limited to the validity of treaties.415
The Commission did not, however, propose with any spe- Those peremptory norms that are clearly accepted and
cific articles on this question, apart from articles 53 and recognized include the prohibitions of aggression, geno-
64 themselves. cide, slavery, racial discrimination, crimes against human-
ity and torture, and the right to self-determination.416
(3) Where there is an apparent conflict between primary
obligations, one of which arises for a State directly un- (6) In accordance with article 26, circumstances pre-
der a peremptory norm of general international law, it is cluding wrongfulness cannot justify or excuse a breach
evident that such an obligation must prevail. The process- of a State’s obligations under a peremptory rule of general
es of interpretation and application should resolve such international law. Article 26 does not address the prior is-
questions without any need to resort to the secondary sue whether there has been such a breach in any given
rules of State responsibility. In theory, one might envis- case. This has particular relevance to certain articles in
age a conflict arising on a subsequent occasion between a chapter V. One State cannot dispense another from the
treaty obligation, apparently lawful on its face and inno- obligation to comply with a peremptory norm, e.g. in re-
cent in its purpose, and a peremptory norm. If such a case lation to genocide or torture, whether by treaty or other-
were to arise it would be too much to invalidate the treaty wise.417 But in applying some peremptory norms the con-
as a whole merely because its application in the given case sent of a particular State may be relevant. For example, a
was not foreseen. But in practice such situations seem not State may validly consent to a foreign military presence
to have occurred.412 Even if they were to arise, peremp- on its territory for a lawful purpose. Determining in which
tory norms of general international law generate strong circumstances consent has been validly given is again a
interpretative principles which will resolve all or most matter for other rules of international law and not for the
apparent conflicts. secondary rules of State responsibility.418
(4) It is, however, desirable to make it clear that the

circumstances precluding wrongfulness in chapter V of Article 27. Consequences of invoking a circumstance
Part One do not authorize or excuse any derogation from precluding wrongfulness
a peremptory norm of general international law. For ex-
ample, a State taking countermeasures may not derogate The invocation of a circumstance precluding wrong-
from such a norm: for example, a genocide cannot justify fulness in accordance with this chapter is without prej-
a counter-genocide.413 The plea of necessity likewise can- udice to:
not excuse the breach of a peremptory norm. It would be
possible to incorporate this principle expressly in each of (a) compliance with the obligation in question, if
the articles of chapter V, but it is both more economical and to the extent that the circumstance precluding
and more in keeping with the overriding character of this wrongfulness no longer exists;
410 See also article 44, paragraph 5, which provides that in cases
(b) the question of compensation for any material
falling under article 53, no separation of the provisions of the treaty is
loss caused by the act in question.
permitted. 414 For convenience, this limitation is spelled out again in the context
411 Fourth report on the law of treaties, Yearbook … 1959 (see
of countermeasures in Part Three, chapter II. See article 50 and com-
footnote 307 above), p. 46. See also S. Rosenne, Breach of Treaty
mentary, paras. (9) and (10).
(Cambridge, Grotius, 1985), p. 63. 415 See, e.g., the decisions of the International Tribunal for the Former
412 For a possible analogy, see the remarks of Judge ad hoc
Yugoslavia in case IT-95-17/1-T, Prosecutor v. Furundzija, judgement
Lauterpacht in Application of the Convention on the Prevention and
of 10 December 1998; ILM, vol. 38, No. 2 (March 1999), p. 317, and
Punishment of the Crime of Genocide, Provisional Measures, Order of
of the British House of Lords in Regina v. Bow Street Metropolitan
13 September 1993, I.C.J. Reports 1993, p. 325, at pp. 439–441. ICJ did
Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3),
not address these issues in its order.
413 As ICJ noted in its decision in the case concerning the Applica-
ILR, vol. 119. Cf. Legality of the Threat or Use of Nuclear Weapons
(footnote 54 above), p. 257, para. 79.
tion of the Convention on the Prevention and Punishment of the Crime 416 Cf. East Timor (footnote 54 above).
of Genocide, “in no case could one breach of the Convention serve as 417 See paragraph (4) of the commentary to article 45.
an excuse for another” (Counter-Claims, Order of 17 December 1997,
I.C.J. Reports 1997, p. 243, at p. 258, para. 35). 418 See paragraphs (4) to (7) of the commentary to article 20.
309
Annex 13
Commentary “compensation”, it is not concerned with compensation

within the framework of reparation for wrongful conduct,
(1) Article 27 is a without prejudice clause dealing which is the subject of article 34. Rather, it is concerned
with certain incidents or consequences of invoking cir- with the question whether a State relying on a circum-
cumstances precluding wrongfulness under chapter V. stance precluding wrongfulness should nonetheless be
It deals with two issues. First, it makes it clear that cir- expected to make good any material loss suffered by any
cumstances precluding wrongfulness do not as such affect State directly affected. The reference to “material loss”
the underlying obligation, so that if the circumstance no is narrower than the concept of damage elsewhere in the
longer exists the obligation regains full force and effect. articles: article 27 concerns only the adjustment of losses
Secondly, it refers to the possibility of compensation in that may occur when a party relies on a circumstance cov-
certain cases. Article 27 is framed as a without prejudice ered by chapter V.
clause because, as to the first point, it may be that the
effect of the facts which disclose a circumstance preclud- (5) Subparagraph (b) is a proper condition, in certain
ing wrongfulness may also give rise to the termination of cases, for allowing a State to rely on a circumstance pre-
the obligation and, as to the second point, because it is not cluding wrongfulness. Without the possibility of such
possible to specify in general terms when compensation recourse, the State whose conduct would otherwise be
is payable. unlawful might seek to shift the burden of the defence of
its own interests or concerns onto an innocent third State.
(2) Subparagraph (a) of article 27 addresses the ques- This principle was accepted by Hungary in invoking the
tion of what happens when a condition preventing com- plea of necessity in the Gabčíkovo-Nagymaros Project
pliance with an obligation no longer exists or gradually case. As ICJ noted, “Hungary expressly acknowledged
ceases to operate. It makes it clear that chapter V has a that, in any event, such a state of necessity would not
merely preclusive effect. When and to the extent that a cir- exempt it from its duty to compensate its partner”.421
cumstance precluding wrongfulness ceases, or ceases to
have its preclusive effect for any reason, the obligation in
question (assuming it is still in force) will again have to be (6) Subparagraph (b) does not attempt to specify in what
complied with, and the State whose earlier non-compli- circumstances compensation should be payable. Gener-
ance was excused must act accordingly. The words “and ally, the range of possible situations covered by chapter V
to the extent” are intended to cover situations in which the is such that to lay down a detailed regime for compensa-
conditions preventing compliance gradually lessen and tion is not appropriate. It will be for the State invoking a
allow for partial performance of the obligation. circumstance precluding wrongfulness to agree with any
affected States on the possibility and extent of compensa-
tion payable in a given case.
(3) This principle was affirmed by the tribunal in the
“Rainbow Warrior” arbitration,419 and even more clear-
ly by ICJ in the Gabčíkovo-Nagymaros Project case. In
considering Hungary’s argument that the wrongfulness
of its conduct in discontinuing work on the Project was part twO
precluded by a state of necessity, the Court remarked that
“[a]s soon as the state of necessity ceases to exist, the duty COntent Of the internatiOnal
to comply with treaty obligations revives”.420 It may be respOnsibility Of a state
that the particular circumstances precluding wrongfulness
are, at the same time, a sufficient basis for terminating the
underlying obligation. Thus, a breach of a treaty justifying (1) Whereas Part One of the articles defines the general
countermeasures may be “material” in terms of article 60 conditions necessary for State responsibility to arise, Part
of the 1969 Vienna Convention and permit termination of Two deals with the legal consequences for the responsible
the treaty by the injured State. Conversely, the obligation State. It is true that a State may face legal consequences
may be fully reinstated or its operation fully restored in of conduct which is internationally wrongful outside the
principle, but modalities for resuming performance may sphere of State responsibility. For example, a material
need to be settled. These are not matters which article 27 breach of a treaty may give an injured State the right to
can resolve, other than by providing that the invocation of terminate or suspend the treaty in whole or in part.422 The
circumstances precluding wrongfulness is without preju- focus of Part Two, however, is on the new legal relation-
dice to “compliance with the obligation in question, if and ship which arises upon the commission by a State of an in-
to the extent that the circumstance precluding wrongful- ternationally wrongful act. This constitutes the substance
ness no longer exists”. Here “compliance with the obli- or content of the international responsibility of a State
gation in question” includes cessation of the wrongful under the articles.
conduct.
(2) Within the sphere of State responsibility, the con-
(4) Subparagraph (b) of article 27 is a reservation as to sequences which arise by virtue of an internationally
questions of possible compensation for damage in cases wrongful act of a State may be specifically provided for in
covered by chapter V. Although the article uses the term such terms as to exclude other consequences, in whole or
419 “Rainbow Warrior” (see footnote 46 above), pp. 251–252, 421 Ibid., p. 39, para. 48. A separate issue was that of accounting
para. 75. for accrued costs associated with the Project (ibid., p. 81, paras. 152–
420 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 63, 153).
para 101; see also page 38, para. 47. 422 1969 Vienna Convention, art. 60.
310
Annex 13
in part.423 In the absence of any specific provision, how- entailed whenever there is an internationally wrongful act
ever, international law attributes to the responsible State of a State. Article 29 indicates that these consequences are
new obligations, and in particular the obligation to make without prejudice to, and do not supplant, the continued
reparation for the harmful consequences flowing from obligation of the responsible State to perform the obliga-
that act. The close link between the breach of an inter- tion breached. This point is carried further by article 30,
national obligation and its immediate legal consequence which deals with the obligation of cessation and assur-
in the obligation of reparation was recognized in ar- ances or guarantees of non-repetition. Article 31 sets out
ticle 36, paragraph 2, of the PCIJ Statute, which was car- the general obligation of reparation for injury suffered in
ried over without change as Article 36, paragraph 2, of consequence of a breach of international law by a State.
the ICJ Statute. In accordance with article 36, para- Article 32 makes clear that the responsible State may not
graph 2, States parties to the Statute may recognize as rely on its internal law to avoid the obligations of cessa-
compulsory the Court’s jurisdiction, inter alia, in all legal tion and reparation arising under Part Two. Finally, arti-
disputes concerning: cle 33 specifies the scope of the Part, both in terms of the
States to which obligations are owed and also in terms
(c) The existence of any fact which, if established, would constitute of certain legal consequences which, because they accrue
a breach of an international obligation; directly to persons or entities other than States, are not
(d) The nature or extent of the reparation to be made for the breach
covered by Parts Two or Three of the articles.
of an international obligation.
Part One of the articles sets out the general legal rules Article 28. Legal consequences of an internationally
applicable to the question identified in subparagraph (c), wrongful act
while Part Two does the same for subparagraph (d).
The international responsibility of a State which is
(3) Part Two consists of three chapters. Chapter I sets entailed by an internationally wrongful act in accord-
out certain general principles and specifies more precise- ance with the provisions of Part One involves legal con-
ly the scope of Part Two. Chapter II focuses on the forms sequences as set out in this Part.
of reparation (restitution, compensation, satisfaction) and
the relations between them. Chapter III deals with the spe- Commentary
cial situation which arises in case of a serious breach of an
obligation arising under a peremptory norm of general in-
(1) Article 28 serves an introductory function for Part
ternational law, and specifies certain legal consequences
Two and is expository in character. It links the provisions
of such breaches, both for the responsible State and for
of Part One which define when the international respon-
other States.
sibility of a State arises with the provisions of Part Two
which set out the legal consequences which responsibility
for an internationally wrongful act involves.
Chapter i
(2) The core legal consequences of an internationally
wrongful act set out in Part Two are the obligations of the
general prinCiples responsible State to cease the wrongful conduct (art. 30)
and to make full reparation for the injury caused by the
Commentary internationally wrongful act (art. 31). Where the interna-
tionally wrongful act constitutes a serious breach by the
(1) Chapter I of Part Two comprises six articles, which State of an obligation arising under a peremptory norm
define in general terms the legal consequences of an in- of general international law, the breach may entail further
ternationally wrongful act of a State. Individual breaches consequences both for the responsible State and for other
of international law can vary across a wide spectrum from States. In particular, all States in such cases have obliga-
the comparatively trivial or minor up to cases which im- tions to cooperate to bring the breach to an end, not to
peril the survival of communities and peoples, the territo- recognize as lawful the situation created by the breach and
rial integrity and political independence of States and the not to render aid or assistance to the responsible State in
environment of whole regions. This may be true whether maintaining the situation so created (arts. 40–41).
the obligations in question are owed to one other State
or to some or all States or to the international commu- (3) Article 28 does not exclude the possibility that an
nity as a whole. But over and above the gravity or effects internationally wrongful act may involve legal conse-
of individual cases, the rules and institutions of State re- quences in the relations between the State responsible for
sponsibility are significant for the maintenance of respect that act and persons or entities other than States. This fol-
for international law and for the achievement of the goals lows from article 1, which covers all international obliga-
which States advance through law-making at the interna- tions of the State and not only those owed to other States.
tional level. Thus, State responsibility extends, for example, to human
rights violations and other breaches of international law
(2) Within chapter I, article 28 is an introductory arti- where the primary beneficiary of the obligation breached
cle, affirming the principle that legal consequences are is not a State. However, while Part One applies to all the
cases in which an internationally wrongful act may be
423 On the lex specialis principle in relation to State responsibility, committed by a State, Part Two has a more limited scope.
see article 55 and commentary. It does not apply to obligations of reparation to the extent
311
Annex 13
that these arise towards or are invoked by a person or en- ing the obligation to make reparation for any breach.426 A
tity other than a State. In other words, the provisions of breach of an obligation under general international law is
Part Two are without prejudice to any right, arising from even less likely to affect the underlying obligation, and in-
the international responsibility of a State, which may ac- deed will never do so as such. By contrast, the secondary
crue directly to any person or entity other than a State, and legal relation of State responsibility arises on the occur-
article 33 makes this clear. rence of a breach and without any requirement of invoca-
tion by the injured State.
Article 29. Continued duty of performance
(4) Article 29 does not need to deal with such contin-
The legal consequences of an internationally wrong- gencies. All it provides is that the legal consequences of
ful act under this Part do not affect the continued duty an internationally wrongful act within the field of State
of the responsible State to perform the obligation responsibility do not affect any continuing duty to comply
breached. with the obligation which has been breached. Whether and
to what extent that obligation subsists despite the breach
is a matter not regulated by the law of State responsibility
Commentary but by the rules concerning the relevant primary obliga-
tion.
(1) Where a State commits a breach of an international
obligation, questions as to the restoration and future of the Article 30. Cessation and non-repetition
legal relationship thereby affected are central. Apart from
the question of reparation, two immediate issues arise, The State responsible for the internationally wrong-
namely, the effect of the responsible State’s conduct on ful act is under an obligation:
the obligation which has been breached, and cessation of
the breach if it is continuing. The former question is dealt (a) to cease that act, if it is continuing;
with by article 29, the latter by article 30.
(b) to offer appropriate assurances and guarantees
of non-repetition, if circumstances so require.
(2) Article 29 states the general principle that the legal
consequences of an internationally wrongful act do not
affect the continued duty of the State to perform the ob- Commentary
ligation it has breached. As a result of the internationally
wrongful act, a new set of legal relations is established (1) Article 30 deals with two separate but linked issues
between the responsible State and the State or States to raised by the breach of an international obligation: the
whom the international obligation is owed. But this does cessation of the wrongful conduct and the offer of assur-
not mean that the pre-existing legal relation established ances and guarantees of non-repetition by the responsible
by the primary obligation disappears. Even if the respon- State if circumstances so require. Both are aspects of the
sible State complies with its obligations under Part Two restoration and repair of the legal relationship affected by
to cease the wrongful conduct and to make full repara- the breach. Cessation is, as it were, the negative aspect
tion for the injury caused, it is not relieved thereby of the of future performance, concerned with securing an end
duty to perform the obligation breached. The continuing to continuing wrongful conduct, whereas assurances and
obligation to perform an international obligation, notwith- guarantees serve a preventive function and may be de-
standing a breach, underlies the concept of a continuing scribed as a positive reinforcement of future performance.
wrongful act (see article 14) and the obligation of cessa- The continuation in force of the underlying obligation is
tion (see subparagraph (a) of article 30). a necessary assumption of both, since if the obligation
has ceased following its breach, the question of cessation
(3) It is true that in some situations the ultimate effect does not arise and no assurances and guarantees can be
of a breach of an obligation may be to put an end to the relevant.427
obligation itself. For example, a State injured by a ma-
terial breach of a bilateral treaty may elect to terminate (2) Subparagraph (a) of article 30 deals with the obliga-
the treaty.424 But as the relevant provisions of the 1969 tion of the State responsible for the internationally wrong-
Vienna Convention make clear, the mere fact of a breach ful act to cease the wrongful conduct. In accordance with
and even of a repudiation of a treaty does not terminate article 2, the word “act” covers both acts and omissions.
the treaty.425 It is a matter for the injured State to react Cessation is thus relevant to all wrongful acts extending
to the breach to the extent permitted by the Convention. in time “regardless of whether the conduct of a State is
The injured State may have no interest in terminating the
treaty as distinct from calling for its continued perform- 426 See, e.g., “Rainbow Warrior” (footnote 46 above), p. 266, cit-
ance. Where a treaty is duly terminated for breach, the ing Lord McNair (dissenting) in Ambatielos, Preliminary Objection,
I.C.J. Reports 1952, p. 28, at p. 63. On that particular point the Court
termination does not affect legal relationships which have itself agreed, ibid., p. 45. In the Gabčíkovo-Nagymaros Project case,
accrued under the treaty prior to its termination, includ- Hungary accepted that the legal consequences of its termination of
the 1977 Treaty on the Construction and Operation of the Gabčíkovo-
424
See footnote 422 above. Nagymaros Barrage System on account of the breach by Czechoslova-
425
Indeed, in the Gabčíkovo-Nagymaros Project case, ICJ held that kia were prospective only, and did not affect the accrued rights of either
continuing material breaches by both parties did not have the effect of party (see footnote 27 above), pp. 73–74, paras. 125–127. The Court
terminating the 1977 Treaty on the Construction and Operation of the held that the Treaty was still in force, and therefore did not address the
Gabčíkovo-Nagymaros Barrage System (see footnote 27 above), p. 68, question.
para. 114. 427 1969 Vienna Convention, art. 70, para. 1.
312
Annex 13
an action or an omission … since there may be cessation edies, and it is appropriate that they are dealt with, at least
consisting in abstaining from certain actions”.428 in general terms, in articles concerning the consequences
of an internationally wrongful act. Secondly, continuing
(3) The tribunal in the “Rainbow Warrior” arbitration wrongful acts are a common feature of cases involving
stressed “two essential conditions intimately linked” for State responsibility and are specifically dealt with in ar-
the requirement of cessation of wrongful conduct to arise, ticle 14. There is a need to spell out the consequences of
“namely that the wrongful act has a continuing charac- such acts in Part Two.
ter and that the violated rule is still in force at the time
in which the order is issued”.429 While the obligation to (7) The question of cessation often arises in close con-
cease wrongful conduct will arise most commonly in the nection with that of reparation, and particularly restitu-
case of a continuing wrongful act,430 article 30 also en- tion. The result of cessation may be indistinguishable
compasses situations where a State has violated an obliga- from restitution, for example in cases involving the free-
tion on a series of occasions, implying the possibility of ing of hostages or the return of objects or premises seized.
further repetitions. The phrase “if it is continuing” at the Nonetheless, the two must be distinguished. Unlike res-
end of subparagraph (a) of the article is intended to cover titution, cessation is not subject to limitations relating to
both situations. proportionality.433 It may give rise to a continuing obli-
gation, even when literal return to the status quo ante is
(4) Cessation of conduct in breach of an international excluded or can only be achieved in an approximate way.
obligation is the first requirement in eliminating the con-
sequences of wrongful conduct. With reparation, it is (8) The difficulty of distinguishing between cessation
one of the two general consequences of an internation- and restitution is illustrated by the “Rainbow Warrior”
ally wrongful act. Cessation is often the main focus of the arbitration. New Zealand sought the return of the two
controversy produced by conduct in breach of an interna- agents to detention on the island of Hao. According to
tional obligation.431 It is frequently demanded not only New Zealand, France was obliged to return them to and
by States but also by the organs of international organiza- to detain them on the island for the balance of the three
tions such as the General Assembly and Security Council years; that obligation had not expired since time spent
in the face of serious breaches of international law. By off the island was not to be counted for that purpose. The
contrast, reparation, important though it is in many cases, tribunal disagreed. In its view, the obligation was for a
may not be the central issue in a dispute between States as fixed term which had expired, and there was no question
to questions of responsibility.432 of cessation.434 Evidently, the return of the two agents to
the island was of no use to New Zealand if there was no
(5) The function of cessation is to put an end to a viola- continuing obligation on the part of France to keep them
tion of international law and to safeguard the continuing there. Thus, a return to the status quo ante may be of little
validity and effectiveness of the underlying primary rule. or no value if the obligation breached no longer exists.
The responsible State’s obligation of cessation thus pro- Conversely, no option may exist for an injured State to re-
tects both the interests of the injured State or States and nounce restitution if the continued performance of the ob-
the interests of the international community as a whole in ligation breached is incumbent upon the responsible State
the preservation of, and reliance on, the rule of law. and the former State is not competent to release it from
such performance. The distinction between cessation and
(6) There are several reasons for treating cessation as restitution may have important consequences in terms of
more than simply a function of the duty to comply with the obligations of the States concerned.
the primary obligation. First, the question of cessation
only arises in the event of a breach. What must then oc- (9) Subparagraph (b) of article 30 deals with the obliga-
cur depends not only on the interpretation of the primary tion of the responsible State to offer appropriate assur-
obligation but also on the secondary rules relating to rem- ances and guarantees of non-repetition, if circumstances
428 “Rainbow Warrior”
so require. Assurances and guarantees are concerned with
(see footnote 46 above), p. 270, para. 113. the restoration of confidence in a continuing relationship,
429 Ibid., para. 114. although they involve much more flexibility than cessa-
430 For the concept of a continuing wrongful act, see paragraphs (3)
tion and are not required in all cases. They are most com-
to (11) of the commentary to article 14.
431 The focus of the WTO dispute settlement mechanism is on cessa-
monly sought when the injured State has reason to believe
tion rather than reparation: Marrakesh Agreement establishing the World
that the mere restoration of the pre-existing situation does
Trade Organization, annex 2 (Understanding on Rules and Procedures not protect it satisfactorily. For example, following re-
governing the Settlement of Disputes), especially article 3, paragraph 7, peated demonstrations against the United States Embassy
which provides for compensation “only if the immediate withdrawal of in Moscow from 1964 to 1965, President Johnson stated
the measure is impracticable and as a temporary measure pending the that:
withdrawal of the measure which is inconsistent with a covered agree-
ment”. On the distinction between cessation and reparation for WTO
The U.S. Government must insist that its diplomatic establishments and
purposes, see, e.g., Report of the Panel, Australia-Subsidies Provided to
personnel be given the protection which is required by international
Producers and Exporters of Automotive Leather (WT/DS126/RW and
law and custom and which is necessary for the conduct of diplomatic
Corr.1), 21 January 2000, para. 6.49.
432 For cases where ICJ has recognized that this may be so, see,
relations between states. Expressions of regret and compensation are no
substitute for adequate protection.
e.g., Fisheries Jurisdiction (Federal Republic of Germany v. Ice-
land), Merits, Judgment, I.C.J. Reports 1974, p. 175, at pp. 201–205, 433 See article 35 (b) and commentary.
paras. 65–76; and Gabčíkovo-Nagymaros Project (footnote 27 above), 434
p. 81, para. 153. See also C. D. Gray, Judicial Remedies in International UNRIAA, vol. XX, p. 217, at p. 266, para. 105 (1990).
Law (Oxford, Clarendon Press, 1987), pp. 77–92. 435 Reprinted in ILM, vol. 4, No. 2 (July 1965), p. 698.
313
Annex 13
Such demands are not always expressed in terms of assur- The Court thus upheld its jurisdiction on Germany’s fourth
ances or guarantees, but they share the characteristics of submission and responded to it in the operative part. It
being future-looking and concerned with other potential did not, however, discuss the legal basis for assurances of
breaches. They focus on prevention rather than reparation non-repetition.
and they are included in article 30.
(11) Assurances or guarantees of non-repetition may be
(10) The question whether the obligation to offer assur- sought by way of satisfaction (e.g. the repeal of the legis-
ances or guarantees of non-repetition may be a legal con- lation which allowed the breach to occur) and there is thus
sequence of an internationally wrongful act was debated some overlap between the two in practice.440 However,
in the LaGrand case. This concerned an admitted fail- they are better treated as an aspect of the continuation
ure of consular notification contrary to article 36 of the and repair of the legal relationship affected by the breach.
Vienna Convention on Consular Relations. In its fourth Where assurances and guarantees of non-repetition are
submission, Germany sought both general and specific sought by an injured State, the question is essentially the
assurances and guarantees as to the means of future com- reinforcement of a continuing legal relationship and the
pliance with the Convention. The United States argued focus is on the future, not the past. In addition, assurances
that to give such assurances or guarantees went beyond and guarantees of non-repetition may be sought by a State
the scope of the obligations in the Convention and that other than an injured State in accordance with article 48.
ICJ lacked jurisdiction to require them. In any event, for-
mal assurances and guarantees were unprecedented and (12) Assurances are normally given verbally, while guar-
should not be required. Germany’s entitlement to a rem- antees of non-repetition involve something more—for ex-
edy did not extend beyond an apology, which the United ample, preventive measures to be taken by the responsi-
States had given. Alternatively, no assurances or guaran- ble State designed to avoid repetition of the breach. With
tees were appropriate in the light of the extensive action it regard to the kind of guarantees that may be requested,
had taken to ensure that federal and State officials would international practice is not uniform. The injured State
in future comply with the Convention. On the question of usually demands either safeguards against the repetition
jurisdiction, the Court held: of the wrongful act without any specification of the form
that a dispute regarding the appropriate remedies for the violation of they are to take441 or, when the wrongful act affects its
the Convention alleged by Germany is a dispute that arises out of the nationals, assurances of better protection of persons and
interpretation or application of the Convention and thus is within the property.442 In the LaGrand case, ICJ spelled out with
Court’s jurisdiction. Where jurisdiction exists over a dispute on a par- some specificity the obligation that would arise for the
ticular matter, no separate basis for jurisdiction is required by the Court
to consider the remedies a party has requested for the breach of the United States from a future breach, but added that “[t]his
obligation … Consequently, the Court has jurisdiction in the present obligation can be carried out in various ways. The choice
case with respect to the fourth submission of Germany.6 of means must be left to the United States”.443 It noted
further that a State may not be in a position to offer a firm
On the question of appropriateness, the Court noted that guarantee of non-repetition.444 Whether it could properly
an apology would not be sufficient in any case in which a do so would depend on the nature of the obligation in
foreign national had been “subjected to prolonged deten- question.
tion or sentenced to severe penalties” following a failure
of consular notification.437 But in the light of information (13) In some cases, the injured State may ask the re-
provided by the United States as to the steps taken to com- sponsible State to adopt specific measures or to act in a
ply in future, the Court held: specified way in order to avoid repetition. Sometimes the
that the commitment expressed by the United States to ensure imple- injured State merely seeks assurances from the responsible
mentation of the specific measures adopted in performance of its obli- State that, in future, it will respect the rights of the injured
gations under Article 36, paragraph 1 (b), must be regarded as meeting State.445 In other cases, the injured State requires specific
Germany’s request for a general assurance of non-repetition. instructions to be given,446 or other specific conduct to be
As to the specific assurances sought by Germany, the 440 See paragraph (5) of the commentary to article 36.
Court limited itself to stating that: 441 In the “Dogger Bank” incident in 1904, the United Kingdom
sought “security against the recurrence of such intolerable incidents”,
if the United States, notwithstanding its commitment referred to … G. F. de Martens, Nouveau recueil général de traités, 2nd series,
should fail in its obligation of consular notification to the detriment vol. XXXIII, p. 642. See also the exchange of notes between China
of German nationals, an apology would not suffice in cases where the and Indonesia following the attack in March 1966 against the Chinese
individuals concerned have been subjected to prolonged detention or Consulate General in Jakarta, in which the Chinese Deputy Minister
convicted and sentenced to severe penalties. In the case of such a con- for Foreign Affairs sought a guarantee that such incidents would not be
viction and sentence, it would be incumbent upon the United States to repeated in the future, RGDIP, vol. 70 (1966), pp. 1013 et seq.
allow the review and reconsideration of the conviction and sentence by 442 Such assurances were given in the Doane incident (1886), Moore,
taking account of the violation of the rights set forth in the Conven- Digest, vol. VI, pp. 345–346.
tion.9 443 LaGrand, Judgment (see footnote 119 above), p. 513, para. 125.
444 Ibid., para. 124.
436 LaGrand, Judgment (see footnote 119 above), p. 485, para. 48,
445 See, e.g., the 1901 case in which the Ottoman Empire gave a
citing Factory at Chorzów, Jurisdiction (footnote 34 above).
437 LaGrand, Judgment (see footnote 119 above), p. 512,
formal assurance that the British, Austrian and French postal services
would henceforth operate freely in its territory, RGDIP, vol. 8 (1901),
para. 123. p. 777, at pp. 788 and 792.
438 Ibid., p. 513, para. 124; see also the operative part, p. 516, 446 See, e.g., the incidents involving the “Herzog” and the “Bun-
para. 128 (6). desrath”, two German ships seized by the British Navy in December
439 Ibid., pp. 513–514, para. 125. See also paragraph 127 and the 1899 and January 1900, during the Boer war, in which Germany drew
operative part (para. 128 (7)). the attention of Great Britain to “the necessity for issuing instructions
314
Annex 13
taken.447 But assurances and guarantees of non-repetition (2) In a subsequent phase of the same case, the Court
will not always be appropriate, even if demanded. Much went on to specify in more detail the content of the obliga-
will depend on the circumstances of the case, including tion of reparation. It said:
the nature of the obligation and of the breach. The rather The essential principle contained in the actual notion of an illegal
exceptional character of the measures is indicated by the act—a principle which seems to be established by international practice
words “if circumstances so require” at the end of subpara- and in particular by the decisions of arbitral tribunals—is that repara-
graph (b). The obligation of the responsible State with tion must, as far as possible, wipe out all the consequences of the illegal
respect to assurances and guarantees of non-repetition is act and reestablish the situation which would, in all probability, have
existed if that act had not been committed. Restitution in kind, or, if this
formulated in flexible terms in order to prevent the kinds is not possible, payment of a sum corresponding to the value which a
of abusive or excessive claims which characterized some restitution in kind would bear; the award, if need be, of damages for loss
demands for assurances and guarantees by States in the sustained which would not be covered by restitution in kind or payment
past. in place of it—such are the principles which should serve to determine
the amount of compensation due for an act contrary to international
law.0
Article 31. Reparation In the first sentence, the Court gave a general definition of
reparation, emphasizing that its function was the re-estab-
1. The responsible State is under an obligation to lishment of the situation affected by the breach.451 In the
make full reparation for the injury caused by the inter- second sentence, it dealt with that aspect of reparation en-
nationally wrongful act. compassed by “compensation” for an unlawful act—that
is, restitution or its value, and in addition damages for loss
2. Injury includes any damage, whether material sustained as a result of the wrongful act.
or moral, caused by the internationally wrongful act
of a State. (3) The obligation placed on the responsible State by
article 31 is to make “full reparation” in the Factory at
Chorzów sense. In other words, the responsible State must
Commentary endeavour to “wipe out all the consequences of the illegal
act and reestablish the situation which would, in all prob-
(1) The obligation to make full reparation is the second ability, have existed if that act had not been committed”452
general obligation of the responsible State consequent through the provision of one or more of the forms of repa-
upon the commission of an internationally wrongful act. ration set out in chapter II of this part.
The general principle of the consequences of the commis-
(4) The general obligation of reparation is formulated
sion of an internationally wrongful act was stated by PCIJ
in article 31 as the immediate corollary of a State’s re-
in the Factory at Chorzów case:
sponsibility, i.e. as an obligation of the responsible State
resulting from the breach, rather than as a right of an in-
It is a principle of international law that the breach of an engagement
involves an obligation to make reparation in an adequate form. Repara- jured State or States. This formulation avoids the difficul-
tion therefore is the indispensable complement of a failure to apply a ties that might arise where the same obligation is owed
convention and there is no necessity for this to be stated in the conven- simultaneously to several, many or all States, only a few
tion itself. Differences relating to reparations, which may be due by of which are specially affected by the breach. But quite
reason of failure to apply a convention, are consequently differences apart from the questions raised when there is more than
relating to its application.
one State entitled to invoke responsibility,453 the general
In this passage, which has been cited and applied on many obligation of reparation arises automatically upon com-
occasions,9 the Court was using the term “reparation” mission of an internationally wrongful act and is not, as
in its most general sense. It was rejecting a Polish argu- such, contingent upon a demand or protest by any State,
ment that jurisdiction to interpret and apply a treaty did even if the form which reparation should take in the cir-
not entail jurisdiction to deal with disputes over the form cumstances may depend on the response of the injured
and quantum of reparation to be made. By that stage of the State or States.
dispute, Germany was no longer seeking for its national (5) The responsible State’s obligation to make full repa-
the return of the factory in question or of the property ration relates to the “injury caused by the internationally
seized with it. wrongful act”. The notion of “injury”, defined in para-
graph 2, is to be understood as including any damage
to the British Naval Commanders to molest no German merchantmen in
places not in the vicinity of the seat of war”, Martens, op. cit. (footnote caused by that act. In particular, in accordance with para-
441 above), vol. XXIX, p. 456 at p. 486. graph 2, “injury” includes any material or moral damage
447 In the Trail Smelter case (see footnote 253 above), the arbitral caused thereby. This formulation is intended both as in-
tribunal specified measures to be adopted by the Trail Smelter, includ- clusive, covering both material and moral damage broadly
ing measures designed to “prevent future significant fumigations in understood, and as limitative, excluding merely abstract
the United States” (p. 1934). Requests to modify or repeal legislation
are frequently made by international bodies. See, e.g., the decisions of
concerns or general interests of a State which is individu-
the Human Rights Committee: Torres Ramirez v. Uruguay, decision of 450
23 July 1980, Official Records of the General Assembly, Thirty-fifth Factory at Chorzów, Merits (see footnote 34 above), p. 47.
Session, Supplement No. 40 (A/35/40), p. 126, para. 19; Lanza v. 451 Cf. P.-M. Dupuy, “Le fait générateur de la responsabilité interna-
Uruguay, decision of 3 April 1980, ibid., p. 119, para. 17; and Dermit tionale des États”, Collected Courses ... 1984–V (Dordrecht, Martinus
Barbato v. Uruguay, decision of 21 October 1982, ibid., Thirty-eighth Nijhoff, 1986), vol. 188, p. 9, at p. 94, who uses the term restauration.
Session, Supplement No. 40 (A/38/40), p. 133, para. 11. 452 Factory at Chorzów, Merits (see footnote 34 above), p. 47.
448 Factory at Chorzów, Jurisdiction (see footnote 34 above). 453 For the States entitled to invoke responsibility, see articles 42
449 Cf. the ICJ reference to this decision in LaGrand, Judgment and 48 and commentaries. For the situation where there is a plurality of
(footnote 119 above), p. 485, para. 48. injured States, see article 46 and commentary.
315
Annex 13
ally unaffected by the breach.454 “Material” damage here (8) Where two States have agreed to engage in particular
refers to damage to property or other interests of the State conduct, the failure by one State to perform the obligation
and its nationals which is assessable in financial terms. necessarily concerns the other. A promise has been bro-
“Moral” damage includes such items as individual pain ken and the right of the other State to performance corre-
and suffering, loss of loved ones or personal affront as- spondingly infringed. For the secondary rules of State re-
sociated with an intrusion on one’s home or private life. sponsibility to intervene at this stage and to prescribe that
Questions of reparation for such forms of damage are there is no responsibility because no identifiable harm or
dealt with in more detail in chapter II of this Part.455 damage has occurred would be unwarranted. If the parties
had wished to commit themselves to that formulation of
the obligation they could have done so. In many cases,
(6) The question whether damage to a protected interest the damage that may follow from a breach (e.g. harm
is a necessary element of an internationally wrongful act to a fishery from fishing in the closed season, harm to
has already been discussed.456 There is in general no such the environment by emissions exceeding the prescribed
requirement; rather this is a matter which is determined limit, abstraction from a river of more than the permitted
by the relevant primary rule. In some cases, the gist of a amount) may be distant, contingent or uncertain. None-
wrong is the causing of actual harm to another State. In theless, States may enter into immediate and uncondition-
some cases what matters is the failure to take necessary al commitments in their mutual long-term interest in such
precautions to prevent harm even if in the event no harm fields. Accordingly, article 31 defines “injury” in a broad
occurs. In some cases there is an outright commitment to and inclusive way, leaving it to the primary obligations to
perform a specified act, e.g. to incorporate uniform rules specify what is required in each case.
into internal law. In each case the primary obligation will
determine what is required. Hence, article 12 defines a (9) Paragraph 2 addresses a further issue, namely the
breach of an international obligation as a failure to con- question of a causal link between the internationally
form with an obligation. wrongful act and the injury. It is only “[i]njury … caused
by the internationally wrongful act of a State” for which
full reparation must be made. This phrase is used to make
(7) As a corollary there is no general requirement, over
clear that the subject matter of reparation is, globally, the
and above any requirements laid down by the relevant
injury resulting from and ascribable to the wrongful act,
primary obligation, that a State should have suffered ma- rather than any and all consequences flowing from an
terial harm or damage before it can seek reparation for internationally wrongful act.
a breach. The existence of actual damage will be highly
relevant to the form and quantum of reparation. But there
is no general requirement of material harm or damage for (10) The allocation of injury or loss to a wrongful act is,
in principle, a legal and not only a historical or causal proc-
a State to be entitled to seek some form of reparation. In
ess. Various terms are used to describe the link which must
the “Rainbow Warrior” arbitration it was initially argued
exist between the wrongful act and the injury in order for
that “in the theory of international responsibility, damage
the obligation of reparation to arise. For example, refer-
is necessary to provide a basis for liability to make repara- ence may be made to losses “attributable to [the wrongful]
tion”, but the parties subsequently agreed that: act as a proximate cause”,459 or to damage which is “too
Unlawful action against non-material interests, such as acts affecting the indirect, remote, and uncertain to be appraised”,460 or to
honor, dignity or prestige of a State, entitle the victim State to receive “any direct loss, damage including environmental damage
adequate reparation, even if those acts have not resulted in a pecuniary and the depletion of natural resources or injury to foreign
or material loss for the claimant State. Governments, nationals and corporations as a result of ”
the wrongful act.461 Thus, causality in fact is a necessary
The tribunal held that the breach by France had “provoked
459 See United States-German Mixed Claims Commission, Admin-
indignation and public outrage in New Zealand and caused
istrative Decision No. II, UNRIAA, vol. VII (Sales No. 1956.V.5),
a new, additional non-material damage … of a moral, po- p. 23, at p. 30 (1923). See also Dix (footnote 178 above), p. 121, and the
litical and legal nature, resulting from the affront to the Canadian statement of claim following the disintegration of the Cosmos
dignity and prestige not only of New Zealand as such, but 954 Soviet nuclear-powered satellite over its territory in 1978, ILM,
of its highest judicial and executive authorities as well”.458 vol. 18 (1979), p. 907, para. 23.
460 See the Trail Smelter arbitration (footnote 253 above), p. 1931.
454 Although not individually injured, such States may be entitled to See also A. Hauriou, “Les dommages indirects dans les arbitrages inter-
invoke responsibility in respect of breaches of certain classes of ob- nationaux”, RGDIP, vol. 31 (1924), p. 209, citing the “Alabama” arbi-
ligation in the general interest, pursuant to article 48. Generally on tration as the most striking application of the rule excluding “indirect”
notions of injury and damage, see B. Bollecker-Stern, Le préjudice dans damage (footnote 87 above).
461 Security Council resolution 687 (1991) of 3 April 1991, para. 16.
la théorie de la responsabilité internationale (Paris, Pedone, 1973);
B. Graefrath, “Responsibility and damages caused: relationship be- This was a resolution adopted with reference to Chapter VII of the Char-
tween responsibility and damages”, Collected Courses ... 1984–II ter of the United Nations, but it is expressed to reflect Iraq’s liability
(The Hague, Nijhoff, 1985), vol. 185, p. 95; A. Tanzi, “Is damage a “under international law … as a result of its unlawful invasion and oc-
distinct condition for the existence of an internationally wrongful cupation of Kuwait”. UNCC and its Governing Council have provided
act?”, Spinedi and Simma, eds., op. cit. (footnote 175 above), p. 1; and some guidance on the interpretation of the requirements of directness
Brownlie, System of the Law of Nations … (footnote 92 above), and causation under paragraph 16. See, e.g., Recommendations made
pp. 53–88. by the panel of Commissioners concerning individual claims for serious
455 See especially article 36 and commentary. personal injury or death (category “B” claims), report of 14 April 1994
456 See paragraph (9) of the commentary to article 2. (S/AC.26/1994/1), approved by the Governing Council in its decision
20 of 26 May 1994 (S/AC.26/Dec.20 (1994)); Report and recommen-
dations made by the panel of Commissioners appointed to review the
paras. 107 and 109. Well Blowout Control Claim (the “WBC claim”), of 15 November 1996
458 Ibid., p. 267, para. 110. (S/AC.26/1996/5/Annex), paras. 66–86, approved by the Governing
316
Annex 13
but not a sufficient condition for reparation. There is a sis for the calculation of damages, it could not, on the other hand, justify
further element, associated with the exclusion of injury an otherwise wrongful act.6
that is too “remote” or “consequential” to be the subject
(12) Often two separate factors combine to cause dam-
of reparation. In some cases, the criterion of “directness”
age. In the United States Diplomatic and Consular Staff in
may be used,462 in others “foreseeability”463 or “proxim-
Tehran case,469 the initial seizure of the hostages by mili-
ity”.464 But other factors may also be relevant: for exam- tant students (not at that time acting as organs or agents
ple, whether State organs deliberately caused the harm in of the State) was attributable to the combination of the
question, or whether the harm caused was within the ambit students’ own independent action and the failure of the
of the rule which was breached, having regard to the pur- Iranian authorities to take necessary steps to protect the
pose of that rule.465 In other words, the requirement of a embassy. In the Corfu Channel case,470 the damage to the
causal link is not necessarily the same in relation to every British ships was caused both by the action of a third State
breach of an international obligation. In international as in laying the mines and the action of Albania in failing to
in national law, the question of remoteness of damage “is warn of their presence. Although, in such cases, the in-
not a part of the law which can be satisfactorily solved jury in question was effectively caused by a combination
by search for a single verbal formula”.466 The notion of a of factors, only one of which is to be ascribed to the re-
sufficient causal link which is not too remote is em- sponsible State, international practice and the decisions
bodied in the general requirement in article 31 that the of international tribunals do not support the reduction or
injury should be in consequence of the wrongful act, but attenuation of reparation for concurrent causes,471 except
without the addition of any particular qualifying phrase. in cases of contributory fault.472 In the Corfu Channel
case, for example, the United Kingdom recovered the full
amount of its claim against Albania based on the latter’s
(11) A further element affecting the scope of reparation wrongful failure to warn of the mines even though Alba-
is the question of mitigation of damage. Even the wholly nia had not itself laid the mines.473 Such a result should
innocent victim of wrongful conduct is expected to act follow a fortiori in cases where the concurrent cause is
reasonably when confronted by the injury. Although often not the act of another State (which might be held sepa-
expressed in terms of a “duty to mitigate”, this is not a rately responsible) but of private individuals, or some nat-
legal obligation which itself gives rise to responsibility. It ural event such as a flood. In the United States Diplomatic
is rather that a failure to mitigate by the injured party may and Consular Staff in Tehran case, the Islamic Republic
preclude recovery to that extent.467 The point was clearly of Iran was held to be fully responsible for the detention
made in this sense by ICJ in the Gabčíkovo-Nagymaros of the hostages from the moment of its failure to protect
Project case: them.474
Slovakia also maintained that it was acting under a duty to mitigate
damages when it carried out Variant C. It stated that “It is a general (13) It is true that cases can occur where an identifiable
principle of international law that a party injured by the non-perform- element of injury can properly be allocated to one of sev-
ance of another contract party must seek to mitigate the damage he has eral concurrently operating causes alone. But unless some
sustained”. part of the injury can be shown to be severable in causal
It would follow from such a principle that an injured State which has
terms from that attributed to the responsible State, the lat-
failed to take the necessary measures to limit the damage sustained ter is held responsible for all the consequences, not being
would not be entitled to claim compensation for that damage which too remote, of its wrongful conduct. Indeed, in the Zafiro
could have been avoided. While this principle might thus provide a ba- claim the tribunal went further and in effect placed the
Council in its decision 40 of 17 December 1996 (S/AC.26/Dec.40 468 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 55,
(1996)). para. 80.
462 As in Security Council resolution 687 (1991), para. 16. 469 United States Diplomatic and Consular Staff in Tehran (see foot-
463 See, e.g., the “Naulilaa” case (footnote 337 above), p. 1031. note 59 above), pp. 29–32.
464 For comparative reviews of issues of causation and remoteness, 470 Corfu Channel, Merits (see footnote 35 above), pp. 17–18 and
see, e.g., H. L. A. Hart and A. M. Honoré, Causation in the Law, 2nd 22–23.
ed. (Oxford, Clarendon Press, 1985); A. M. Honoré, “Causation and 471 This approach is consistent with the way in which these issues are
remoteness of damage”, International Encyclopedia of Comparative generally dealt with in national law. “It is the very general rule that if
Law, A. Tunc, ed. (Tübingen, Mohr/The Hague, Martinus Nijhoff, a tortfeasor’s behaviour is held to be a cause of the victim’s harm, the
1983), vol. XI, part I, chap. 7; Zweigert and Kötz, op. cit. (footnote 251 tortfeasor is liable to pay for all of the harm so caused, notwithstand-
above), pp. 601–627, in particular pp. 609 et seq.; and B. S. Markes- ing that there was a concurrent cause of that harm and that another is
inis, The German Law of Obligations: Volume II The Law of Torts: A responsible for that cause … In other words, the liability of a tortfeasor
Comparative Introduction, 3rd ed. (Oxford, Clarendon Press, 1997), is not affected vis-à-vis the victim by the consideration that another is
pp. 95–108, with many references to the literature. concurrently liable.”: T. Weir, “Complex liabilities”, A. Tunc, ed., op.
465 See, e.g., the decision of the Iran-United States Claims Tribunal cit. (footnote 464 above), part 2, chap. 12, p. 43. The United States
in The Islamic Republic of Iran v. The United States of America, cases relied on this comparative law experience in its pleadings in the Aer-
A15 (IV) and A24, Award No. 590–A15 (IV)/A24–FT, 28 December ial Incident of 27 July 1955 case when it said, referring to Article 38,
1998, World Trade and Arbitration Materials, vol. 11, No. 2 (1999), paragraph 1 (c) and (d), of the ICJ Statute, that “in all civilized countries
p. 45. the rule is substantially the same. An aggrieved plaintiff may sue any or
466 P. S. Atiyah, An Introduction to the Law of Contract, 5th ed. all joint tortfeasors, jointly or severally, although he may collect from
(Oxford, Clarendon Press, 1995), p. 466. them, or any one or more of them, only the full amount of his damage”
467 In the WBC claim, a UNCC panel noted that “under the gen-
(Memorial of 2 December 1958 (see footnote 363 above), p. 229).
472 See article 39 and commentary.
eral principles of international law relating to mitigation of damages 473 See Corfu Channel, Assessment of Amount of Compensation,
… the Claimant was not only permitted but indeed obligated to take
reasonable steps to … mitigate the loss, damage or injury being caused” Judgment, I.C.J. Reports 1949, p. 244, at p. 250.
report of 15 November 1996 (S/AC.26/1996/5/Annex) (see footnote 474 United States Diplomatic and Consular Staff in Tehran (see
461 above), para. 54. footnote 59 above), pp. 31–33.
317
Annex 13
onus on the responsible State to show what proportion of nal law of the High Contracting Party concerned allows
the damage was not attributable to its conduct. It said: only partial reparation to be made”.478
We think it clear that not all of the damage was done by the Chinese
crew of the Zafiro. The evidence indicates that an unascertainable part (3) The principle that a responsible State may not rely
was done by Filipino insurgents, and makes it likely that some part was on the provisions of its internal law as justification for
done by the Chinese employees of the company. But we do not consider failure to comply with its obligations arising out of the
that the burden is on Great Britain to prove exactly what items of dam-
age are chargeable to the Zafiro. As the Chinese crew of the Zafiro are commission of an internationally wrongful act is sup-
shown to have participated to a substantial extent and the part charge- ported both by State practice and international decisions.
able to unknown wrongdoers can not be identified, we are constrained For example, the dispute between Japan and the United
to hold the United States liable for the whole. States in 1906 over California’s discriminatory education
In view, however, of our finding that a considerable, though unascer- policies was resolved by the revision of the Californian
tainable, part of the damage is not chargeable to the Chinese crew of the legislation.479 In the incident concerning article 61, para-
Zafiro, we hold that interest on the claims should not be allowed. graph 2, of the Weimar Constitution (Constitution of
the Reich of 11 August 1919), a constitutional amend-
(14) Concerns are sometimes expressed that a general ment was provided for in order to ensure the discharge
principle of reparation of all loss flowing from a breach of the obligation deriving from article 80 of the Treaty
might lead to reparation which is out of all proportion to of Peace between the Allied and Associated Powers and
the gravity of the breach. However, the notion of “pro- Germany (Treaty of Versailles).480 In the Peter Pázmány
portionality” applies differently to the different forms of University case, PCIJ specified that the property to be
reparation.476 It is addressed, as appropriate, in the in- returned should be “freed from any measure of transfer,
dividual articles in chapter II dealing with the forms of compulsory administration, or sequestration”.481 In short,
reparation. international law does not recognize that the obligations
of a responsible State under Part Two are subject to the
Article 32. Irrelevance of internal law State’s internal legal system nor does it allow internal law
to count as an excuse for non-performance of the obliga-
The responsible State may not rely on the provisions tions of cessation and reparation.
of its internal law as justification for failure to comply
with its obligations under this Part.
Article 33. Scope of international obligations
set out in this Part
Commentary
1. The obligations of the responsible State set out
(1) Article 3 concerns the role of internal law in the in this Part may be owed to another State, to several
characterization of an act as wrongful. Article 32 makes States, or to the international community as a whole,
clear the irrelevance of a State’s internal law to compli- depending in particular on the character and content
ance with the obligations of cessation and reparation. It of the international obligation and on the circumstanc-
provides that a State which has committed an interna- es of the breach.
tionally wrongful act may not invoke its internal law as
a justification for failure to comply with its obligations 2. This Part is without prejudice to any right, aris-
under this part. Between them, articles 3 and 32 give ef- ing from the international responsibility of a State,
fect for the purposes of State responsibility to the general which may accrue directly to any person or entity
principle that a State may not rely on its internal law as a other than a State.
justification for its failure to comply with its international
obligations.477Although practical difficulties may arise
for a State organ confronted with an obstacle to compli- Commentary
ance posed by the rules of the internal legal system un-
der which it is bound to operate, the State is not entitled (1) Article 33 concludes the provisions of chapter I of
to oppose its internal law or practice as a legal barrier to Part Two by clarifying the scope and effect of the interna-
the fulfilment of an international obligation arising under tional obligations covered by the Part. In particular, para-
Part Two. graph 1 makes it clear that identifying the State or States
towards which the responsible State’s obligations in Part
(2) Article 32 is modelled on article 27 of the 1969 Two exist depends both on the primary rule establishing
Vienna Convention, which provides that a party may not 478 Article 41 of the Convention, as amended by Protocol No. 11 to
invoke the provisions of its internal law as justification the Convention for the Protection of Human Rights and Fundamental
for its failure to perform a treaty. This general princi- Freedoms, restructuring the control machinery established thereby.
ple is equally applicable to the international obligations Other examples include article 32 of the Revised General Act for the
deriving from the rules of State responsibility set out in Pacific Settlement of International Disputes and article 30 of the Euro-
Part Two. The principle may be qualified by the relevant pean Convention for the Peaceful Settlement of Disputes.
479 See R. L. Buell, “The development of the anti-Japanese agita-
primary rule, or by a lex specialis, such as article 50 of the
tion in the United States”, Political Science Quarterly, vol. 37 (1922),
European Convention on Human Rights, which provides pp. 620 et seq.
for just satisfaction in lieu of full reparation “if the inter- 480 See British and Foreign State Papers, 1919 (London, HM
475 The
Stationery Office, 1922), vol. 112, p. 1094.
Zafiro case (see footnote 154 above), pp. 164–165. 481 Appeal from a Judgment of the Hungaro/Czechoslovak Mixed
476 See articles 35 (b), 37, paragraph 3, and 39 and commentaries. Arbitral Tribunal (The Peter Pázmány University), Judgment, 1933,
477 See paragraphs (2) to (4) of the commentary to article 3. P.C.I.J., Series A/B, No. 61, p. 208, at p. 249.
318
Annex 13
the obligation that was breached and on the circumstanc- to determine whether and to what extent persons or enti-
es of the breach. For example, pollution of the sea, if it ties other than States are entitled to invoke responsibility
is massive and widespread, may affect the international on their own account. Paragraph 2 merely recognizes the
community as a whole or the coastal States of a region; possibility: hence the phrase “which may accrue directly
in other circumstances it might only affect a single neigh- to any person or entity other than a State”.
bouring State. Evidently, the gravity of the breach may
also affect the scope of the obligations of cessation and
reparation. Chapter ii
(2) In accordance with paragraph 1, the responsible reparatiOn fOr injury

State’s obligations in a given case may exist towards an-
other State, several States or the international community
as a whole. The reference to several States includes the Commentary
case in which a breach affects all the other parties to a
treaty or to a legal regime established under customary Chapter II deals with the forms of reparation for injury,
international law. For instance, when an obligation can be spelling out in further detail the general principle stated
defined as an “integral” obligation, the breach by a State in article 31, and in particular seeking to establish more
necessarily affects all the other parties to the treaty.482 clearly the relations between the different forms of repa-
ration, viz. restitution, compensation and satisfaction, as
(3) When an obligation of reparation exists towards a well as the role of interest and the question of taking into
State, reparation does not necessarily accrue to that State’s account any contribution to the injury which may have
benefit. For instance, a State’s responsibility for the breach been made by the victim.
of an obligation under a treaty concerning the protection of
human rights may exist towards all the other parties to the Article 34. Forms of reparation
treaty, but the individuals concerned should be regarded
as the ultimate beneficiaries and in that sense as the hold- Full reparation for the injury caused by the inter-
ers of the relevant rights. Individual rights under interna- nationally wrongful act shall take the form of restitu-
tional law may also arise outside the framework of human tion, compensation and satisfaction, either singly or in
rights.483 The range of possibilities is demonstrated from combination, in accordance with the provisions of this
the ICJ judgment in the LaGrand case, where the Court chapter.
held that article 36 of the Vienna Convention on Consular
Relations “creates individual rights, which, by virtue of
Article I of the Optional Protocol, may be invoked in this Commentary
Court by the national State of the detained person”.484
(1) Article 34 introduces chapter II by setting out the
(4) Such possibilities underlie the need for paragraph 2 forms of reparation which separately or in combination
of article 33. Part Two deals with the secondary obliga- will discharge the obligation to make full reparation for
tions of States in relation to cessation and reparation, and the injury caused by the internationally wrongful act.
those obligations may be owed, inter alia, to one or sev- Since the notion of “injury” and the necessary causal link
eral States or to the international community as a whole. between the wrongful act and the injury are defined in the
In cases where the primary obligation is owed to a non- statement of the general obligation to make full reparation
State entity, it may be that some procedure is available in article 31,485 article 34 need do no more than refer to
whereby that entity can invoke the responsibility on its “[f]ull reparation for the injury caused”.
own account and without the intermediation of any State.
This is true, for example, under human rights treaties (2) In the Factory at Chorzów case, the injury was a
which provide a right of petition to a court or some other material one and PCIJ dealt only with two forms of repa-
body for individuals affected. It is also true in the case ration, restitution and compensation.486 In certain cases,
of rights under bilateral or regional investment protection satisfaction may be called for as an additional form of
agreements. Part Three is concerned with the invocation reparation. Thus, full reparation may take the form of
of responsibility by other States, whether they are to be restitution, compensation and satisfaction, as required
considered “injured States” under article 42, or other in- by the circumstances. Article 34 also makes it clear that
terested States under article 48, or whether they may be full reparation may only be achieved in particular cases
exercising specific rights to invoke responsibility under by the combination of different forms of reparation. For
some special rule (art. 55). The articles do not deal with example, re-establishment of the situation which existed
the possibility of the invocation of responsibility by per- before the breach may not be sufficient for full reparation
sons or entities other than States, and paragraph 2 makes because the wrongful act has caused additional material
this clear. It will be a matter for the particular primary rule damage (e.g. injury flowing from the loss of the use of
482
property wrongfully seized). Wiping out all the conse-
See further article 42 (b) (ii) and commentary.
483
quences of the wrongful act may thus require some or all
Cf. Jurisdiction of the Courts of Danzig (footnote 82 above),
pp. 17–21.
forms of reparation to be provided, depending on the type
484 LaGrand, Judgment (see footnote 119 above), para. 77. In the and extent of the injury that has been caused.
circumstances the Court did not find it necessary to decide whether 485
the individual rights had “assumed the character of a human right” See paragraphs (4) to (14) of the commentary to article 31.
(para. 78). 486 Factory at Chorzów, Merits (see footnote 34 above), p. 47.
319
Annex 13
(3) The primary obligation breached may also play an especially compensation, will be correspondingly more
important role with respect to the form and extent of repa- important.
ration. In particular, in cases of restitution not involving
the return of persons, property or territory of the injured
State, the notion of reverting to the status quo ante has to Article 35. Restitution
be applied having regard to the respective rights and com-
petences of the States concerned. This may be the case, A State responsible for an internationally wrong-
for example, where what is involved is a procedural obli- ful act is under an obligation to make restitution, that
gation conditioning the exercise of the substantive powers is, to re-establish the situation which existed before
of a State. Restitution in such cases should not give the the wrongful act was committed, provided and to the
injured State more than it would have been entitled to if extent that restitution:
the obligation had been performed.487 (a) is not materially impossible;
(4) The provision of each of the forms of reparation de- (b) does not involve a burden out of all propor-
scribed in article 34 is subject to the conditions laid down tion to the benefit deriving from restitution instead of
in the articles which follow it in chapter II. This limita- compensation.
tion is indicated by the phrase “in accordance with the
provisions of this chapter”. It may also be affected by any
valid election that may be made by the injured State as
between different forms of reparation. For example, in Commentary
most circumstances the injured State is entitled to elect to
receive compensation rather than restitution. This element (1) In accordance with article 34, restitution is the first
of choice is reflected in article 43. of the forms of reparation available to a State injured by
an internationally wrongful act. Restitution involves the
(5) Concerns have sometimes been expressed that the re-establishment as far as possible of the situation which
principle of full reparation may lead to disproportionate existed prior to the commission of the internationally
and even crippling requirements so far as the responsi- wrongful act, to the extent that any changes that have oc-
ble State is concerned. The issue is whether the principle curred in that situation may be traced to that act. In its
of proportionality should be articulated as an aspect of simplest form, this involves such conduct as the release
the obligation to make full reparation. In these articles, of persons wrongly detained or the return of property
proportionality is addressed in the context of each form wrongly seized. In other cases, restitution may be a more
of reparation, taking into account its specific character. complex act.
Thus, restitution is excluded if it would involve a burden
out of all proportion to the benefit gained by the injured (2) The concept of restitution is not uniformly defined.
State or other party.488 Compensation is limited to dam- According to one definition, restitution consists in re-
age actually suffered as a result of the internationally establishing the status quo ante, i.e. the situation that ex-
wrongful act, and excludes damage which is indirect or isted prior to the occurrence of the wrongful act. Under
remote.489 Satisfaction must “not be out of proportion to another definition, restitution is the establishment or re-
the injury”.490 Thus, each of the forms of reparation takes establishment of the situation that would have existed if the
such considerations into account. wrongful act had not been committed. The former defini-
tion is the narrower one; it does not extend to the compen-
(6) The forms of reparation dealt with in chapter II rep- sation which may be due to the injured party for loss suf-
resent ways of giving effect to the underlying obligation fered, for example for loss of the use of goods wrongfully
of reparation set out in article 31. There are not, as it were, detained but subsequently returned. The latter definition
separate secondary obligations of restitution, compensa- absorbs into the concept of restitution other elements of
tion and satisfaction. Some flexibility is shown in practice full reparation and tends to conflate restitution as a form
in terms of the appropriateness of requiring one form of of reparation and the underlying obligation of reparation
reparation rather than another, subject to the requirement itself. Article 35 adopts the narrower definition which has
of full reparation for the breach in accordance with ar- the advantage of focusing on the assessment of a factual
ticle 31.491 To the extent that one form of reparation is dis- situation and of not requiring a hypothetical inquiry into
pensed with or is unavailable in the circumstances, others, what the situation would have been if the wrongful act
had not been committed. Restitution in this narrow sense
487 Thus, in the judgment in the LaGrand case (see footnote 119 may of course have to be completed by compensation in
above), ICJ indicated that a breach of the notification requirement in order to ensure full reparation for the damage caused, as
article 36 of the Vienna Convention on Consular Relations, leading to article 36 makes clear.
a severe penalty or prolonged detention, would require reconsideration
of the fairness of the conviction “by taking account of the violation of (3) Nonetheless, because restitution most closely con-
the rights set forth in the Convention” (p. 514, para. 125). This would
be a form of restitution which took into account the limited character forms to the general principle that the responsible State is
of the rights in issue. bound to wipe out the legal and material consequences of
488 See article 35 (b) and commentary. its wrongful act by re-establishing the situation that would
489 See article 31 and commentary. exist if that act had not been committed, it comes first
490 See article 37, paragraph 3, and commentary. among the forms of reparation. The primacy of restitu-
491 For example, the Mélanie Lachenal case (UNRIAA, vol. XIII tion was confirmed by PCIJ in the Factory at Chorzów
(Sales No. 64.V.3), p. 117, at pp. 130–131 (1954)), where compen-
sation was accepted in lieu of restitution originally decided upon, the would require difficult internal procedures. See also paragraph (4) of the
Franco-Italian Conciliation Commission having agreed that restitution commentary to article 35.
320
Annex 13
case when it said that the responsible State was under “the vidual arrested in its territory,497 the restitution of ships498
obligation to restore the undertaking and, if this be not or other types of property,499 including documents, works
possible, to pay its value at the time of the indemnifica- of art, share certificates, etc.500 The term “juridical res-
tion, which value is designed to take the place of restitu- titution” is sometimes used where restitution requires or
tion which has become impossible”. The Court went on involves the modification of a legal situation either within
to add that “[t]he impossibility, on which the Parties are the legal system of the responsible State or in its legal
agreed, of restoring the Chorzów factory could therefore relations with the injured State. Such cases include the
have no other effect but that of substituting payment of revocation, annulment or amendment of a constitutional
the value of the undertaking for restitution”.492 It can be or legislative provision enacted in violation of a rule of
seen in operation in the cases where tribunals have con- international law,501 the rescinding or reconsideration of
sidered compensation only after concluding that, for one an administrative or judicial measure unlawfully adopted
reason or another, restitution could not be effected.493 De- in respect of the person or property of a foreigner502 or
spite the difficulties restitution may encounter in practice, a requirement that steps be taken (to the extent allowed
States have often insisted upon claiming it in preference by international law) for the termination of a treaty.503 In
to compensation. Indeed, in certain cases, especially those some cases, both material and juridical restitution may be
involving the application of peremptory norms, restitution involved.504 In others, an international court or tribunal
may be required as an aspect of compliance with the pri- can, by determining the legal position with binding force
for the parties, award what amounts to restitution under
mary obligation.
another form.505 The term “restitution” in article 35 thus
(4) On the other hand, there are often situations where 497 Examples of material restitution involving persons include the
restitution is not available or where its value to the injured “Trent” (1861) and “Florida” (1864) incidents, both involving the ar-
rest of individuals on board ships (Moore, Digest, vol. VII, pp. 768 and
State is so reduced that other forms of reparation take 1090–1091), and the United States Diplomatic and Consular Staff in
priority. Questions of election as between different forms Tehran case in which ICJ ordered Iran to immediately release every
of reparation are dealt with in the context of Part Three.494 detained United States national (see footnote 59 above), pp. 44–45.
498 See, e.g., the “Giaffarieh” incident (1886) which origi-
But quite apart from valid election by the injured State or
other entity, the possibility of restitution may be practi- nated in the capture in the Red Sea by an Egyptian warship of four
merchant ships from Massawa under Italian registry, Società Italiana per
cally excluded, e.g. because the property in question has l’Organizzazione Internazionale–Consiglio Nazionale delle Ricerche,
been destroyed or fundamentally changed in character or La prassi italiana di diritto internazionale, 1st series (Dobbs Ferry,
the situation cannot be restored to the status quo ante for NY., Oceana, 1970), vol. II, pp. 901–902.
499 For example, Temple of Preah Vihear, Merits, Judgment, I.C.J.
some reason. Indeed, in some cases tribunals have inferred Reports 1962, p. 6, at pp. 36–37, where ICJ decided in favour of a
from the terms of the compromis or the positions of the Cambodian claim which included restitution of certain objects removed
parties what amounts to a discretion to award compen- from the area and the temple by Thai authorities. See also the Hôtel
sation rather than restitution. For example, in the Walter Métropole case, UNRIAA, vol. XIII (Sales No. 64.V.3), p. 219 (1950);
the Ottoz case, ibid., p. 240 (1950); and the Hénon case, ibid., p. 248
Fletcher Smith case, the arbitrator, while maintaining that (1951).
restitution should be appropriate in principle, interpreted 500 In the Bužau-Nehoiasi Railway case, an arbitral tribunal provided
,
the compromis as giving him a discretion to award com- for the restitution to a German company of shares in a Romanian rail-
pensation and did so in “the best interests of the parties, way company, UNRIAA, vol. III (Sales No. 1949.V.2), p. 1839 (1939).
501 For cases where the existence of a law itself amounts to a breach
and of the public”.495 In the Aminoil arbitration, the par-
of an international obligation, see paragraph (12) of the commentary
ties agreed that restoration of the status quo ante follow- to article 12.
ing the annulment of the concession by the Kuwaiti decree 502 For example, the Martini case, UNRIAA, vol. II (Sales No. 1949.
would be impracticable.496 V.1), p. 975 (1930).
503 In the Bryan-Chamorro Treaty case (Costa Rica v. Nicaragua),
the Central American Court of Justice decided that “the Government of
(5) Restitution may take the form of material restoration Nicaragua, by availing itself of measures possible under the authority
or return of territory, persons or property, or the reversal of international law, is under the obligation to re-establish and maintain
of some juridical act, or some combination of them. Ex- the legal status that existed prior to the Bryan-Chamorro Treaty be-
tween the litigant republics in so far as relates to matters considered in
amples of material restitution include the release of de- this action” (Anales de la Corte de Justicia Centroamericana (San José,
tained individuals, the handing over to a State of an indi- Costa Rica), vol. VI, Nos. 16–18 (December 1916–May 1917), p. 7);
and AJIL, vol. 11, No. 3 (1917), p. 674, at p. 696; see also page 683.
492 Factory at Chorzów, Merits (see footnote 34 above), p. 48. 504 Thus, PCIJ held that Czechoslovakia was “bound to restore to the
493 See, e.g., British Claims in the Spanish Zone of Morocco (foot- Royal Hungarian Peter Pázmány University of Budapest the immovable
note 44 above), pp. 621–625 and 651–742; Religious Property Expro- property claimed by it, freed from any measure of transfer, compul-
priated by Portugal, UNRIAA, vol. I (Sales No. 1948.V.2), p. 7 (1920); sory administration, or sequestration, and in the condition in which it
Walter Fletcher Smith, ibid., vol. II (Sales No. 1949.V.1), p. 913, at was before the application of the measures in question” (Appeal from
p. 918 (1929); and Heirs of Lebas de Courmont, ibid., vol. XIII (Sales a judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal
No. 64.V.3), p. 761, at p. 764 (1957). (see footnote 481 above)).
494 See articles 43 and 45 and commentaries. 505 In the Legal Status of Eastern Greenland case, PCIJ decided that
495 Walter Fletcher Smith (see footnote 493 above). In the Greek “the declaration of occupation promulgated by the Norwegian Govern-
Telephone Company case, the arbitral tribunal, while ordering res- ment on July 10th, 1931, and any steps taken in this respect by that
titution, asserted that the responsible State could provide compen- Government, constitute a violation of the existing legal situation and
sation instead for “important State reasons” (see J. G. Wetter and are accordingly unlawful and invalid” (Judgment, 1933, P.C.I.J., Series
S. M. Schwebel, “Some little known cases on concessions”, BYBIL, A/B, No. 53, p. 22, at p. 75). In the case of the Free Zones of Upper
1964, vol. 40, p. 216, at p. 221. Savoy and the District of Gex (see footnote 79 above), the Court de-
496 Government of Kuwait v. American Independent Oil Company cided that France “must withdraw its customs line in accordance with
(Aminoil) ILR, vol. 66, p. 519, at p. 533 (1982). (Continued on next page.)
321
Annex 13
has a broad meaning, encompassing any action that needs the rights and obligations in issue arise directly on the in-
to be taken by the responsible State to restore the situation ternational plane. In that context restitution plays a par-
resulting from its internationally wrongful act. ticularly important role.
(6) What may be required in terms of restitution will of- (10) In certain cases, the position of third parties may
ten depend on the content of the primary obligation which have to be taken into account in considering whether res-
has been breached. Restitution, as the first of the forms of titution is materially possible. This was true in the Forests
reparation, is of particular importance where the obliga- of Central Rhodopia case. But whether the position of a
tion breached is of a continuing character, and even more third party will preclude restitution will depend on the cir-
so where it arises under a peremptory norm of general cumstances, including whether the third party at the time
international law. In the case, for example, of unlawful of entering into the transaction or assuming the disputed
annexation of a State, the withdrawal of the occupying rights was acting in good faith and without notice of the
State’s forces and the annulment of any decree of annexa- claim to restitution.
tion may be seen as involving cessation rather than restitu-
tion.506 Even so, ancillary measures (the return of persons (11) A second exception, dealt with in article 35, sub-
or property seized in the course of the invasion) will be paragraph (b), involves those cases where the benefit to
required as an aspect either of cessation or restitution. be gained from restitution is wholly disproportionate to its
cost to the responsible State. Specifically, restitution may
(7) The obligation to make restitution is not unlimited. not be required if it would “involve a burden out of all
In particular, under article 35 restitution is required “pro- proportion to the benefit deriving from restitution instead
vided and to the extent that” it is neither materially impos- of compensation”. This applies only where there is a grave
sible nor wholly disproportionate. The phrase “provided disproportionality between the burden which restitution
and to the extent that” makes it clear that restitution may would impose on the responsible State and the benefit
be only partially excluded, in which case the responsible which would be gained, either by the injured State or by
State will be obliged to make restitution to the extent that any victim of the breach. It is thus based on considerations
this is neither impossible nor disproportionate. of equity and reasonableness,509 although with a prefer-
ence for the position of the injured State in any case where
(8) Under article 35, subparagraph (a), restitution is not the balancing process does not indicate a clear preference
required if it is “materially impossible”. This would apply for compensation as compared with restitution. The bal-
where property to be restored has been permanently lost ance will invariably favour the injured State in any case
or destroyed, or has deteriorated to such an extent as to be where the failure to provide restitution would jeopardize
valueless. On the other hand, restitution is not impossible its political independence or economic stability.
merely on grounds of legal or practical difficulties, even
though the responsible State may have to make special ef-
forts to overcome these. Under article 32 the wrongdoing Article 36. Compensation
State may not invoke the provisions of its internal law as
justification for the failure to provide full reparation, and 1. The State responsible for an internationally
the mere fact of political or administrative obstacles to wrongful act is under an obligation to compensate for
restitution does not amount to impossibility. the damage caused thereby, insofar as such damage is
not made good by restitution.
(9) Material impossibility is not limited to cases where 2. The compensation shall cover any financially
the object in question has been destroyed, but can cover assessable damage including loss of profits insofar as
more complex situations. In the Forests of Central Rho- it is established.
dopia case, the claimant was entitled to only a share in the
forestry operations and no claims had been brought by the
other participants. The forests were not in the same condi- Commentary
tion as at the time of their wrongful taking, and detailed
inquiries would be necessary to determine their condi- (1) Article 36 deals with compensation for damage
tion. Since the taking, third parties had acquired rights to caused by an internationally wrongful act, to the extent
them. For a combination of these reasons, restitution was that such damage is not made good by restitution. The
denied.507 The case supports a broad understanding of notion of “damage” is defined inclusively in article 31,
the impossibility of granting restitution, but it concerned paragraph 2, as any damage whether material or mor-
questions of property rights within the legal system of the al.510 Article 36, paragraph 2, develops this definition by
responsible State.508 The position may be different where specifying that compensation shall cover any financially
(Footnote 505 continued.)
ILR, vol. 53, p. 389, at pp. 507–508, para. 109; BP Exploration Com-
the provisions of the said treaties and instruments; and that this régime pany (Libya) Limited v. Government of the Libyan Arab Republic, ibid.,
must continue in force so long as it has not been modified by agreement p. 297, at p. 354 (1974); and Libyan American Oil Company (LIAMCO)
between the Parties” (p. 172). See also F. A. Mann, “The consequences v. Government of the Libyan Arab Republic ibid., vol. 62, p. 141, at
of an international wrong in international and municipal law”, BYBIL, p. 200 (1977).
1976–1977, vol. 48, p. 1, at pp. 5–8. 509 See, e.g., J. H. W. Verzijl, International Law in Historical Per-
506 See above, paragraph (8) of the commentary to article 30.
spective (Leiden, Sijthoff, 1973), part VI, p. 744, and the position taken
0 Forests of Central Rhodopia (see footnote 382 above), p. 1432. by the Deutsche Gesellschaft für Völkerrecht (German International
508 For questions of restitution in the context of State contract arbitra- Law Association) in Yearbook ... 1969, vol. II, p. 149.
tion, see Texaco Overseas Petroleum Company and California Asiatic 510 See paragraphs (5) to (6) and (8) of the commentary to
Oil Company v. The Government of the Libyan Arab Republic (1977), article 31.
322
Annex 13
assessable damage including loss of profits so far as this Entitlement to compensation for such losses is supported
is established in the given case. The qualification “finan- by extensive case law, State practice and the writings of
cially assessable” is intended to exclude compensation jurists.
for what is sometimes referred to as “moral damage” to
a State, i.e. the affront or injury caused by a violation of (4) As compared with satisfaction, the function of com-
rights not associated with actual damage to property or pensation is to address the actual losses incurred as a re-
persons: this is the subject matter of satisfaction, dealt sult of the internationally wrongful act. In other words,
with in article 37. the function of article 36 is purely compensatory, as its
title indicates. Compensation corresponds to the finan-
(2) Of the various forms of reparation, compensation is cially assessable damage suffered by the injured State or
perhaps the most commonly sought in international prac- its nationals. It is not concerned to punish the responsible
tice. In the Gabčíkovo-Nagymaros Project case, ICJ de- State, nor does compensation have an expressive or exem-
clared: “It is a well-established rule of international law plary character.516 Thus, compensation generally consists
that an injured State is entitled to obtain compensation of a monetary payment, though it may sometimes take the
from the State which has committed an internationally form, as agreed, of other forms of value. It is true that
wrongful act for the damage caused by it.”511 It is equally monetary payments may be called for by way of satisfac-
well established that an international court or tribunal tion under article 37, but they perform a function distinct
which has jurisdiction with respect to a claim of State from that of compensation. Monetary compensation is in-
responsibility has, as an aspect of that jurisdiction, the tended to offset, as far as may be, the damage suffered by
power to award compensation for damage suffered.512 the injured State as a result of the breach. Satisfaction is
concerned with non-material injury, specifically non-ma-
terial injury to the State, on which a monetary value can
(3) The relationship with restitution is clarified by the be put only in a highly approximate and notional way.517
final phrase of article 36, paragraph 1 (“insofar as such
damage is not made good by restitution”). Restitution, de-
spite its primacy as a matter of legal principle, is frequent- (5) Consistently with other provisions of Part Two, ar-
ly unavailable or inadequate. It may be partially or entirely ticle 36 is expressed as an obligation of the responsible
ruled out either on the basis of the exceptions expressed in State to provide reparation for the consequences flowing
article 35, or because the injured State prefers compensa- from the commission of an internationally wrongful act.518
tion or for other reasons. Even where restitution is made, The scope of this obligation is delimited by the phrase
it may be insufficient to ensure full reparation. The role “any financially assessable damage”, that is, any damage
of compensation is to fill in any gaps so as to ensure full which is capable of being evaluated in financial terms.
reparation for damage suffered.513 As the Umpire said in Financially assessable damage encompasses both damage
the “Lusitania” case: suffered by the State itself (to its property or personnel
or in respect of expenditures reasonably incurred to rem-
The fundamental concept of “damages” is ... reparation for a loss suf- edy or mitigate damage flowing from an internationally
fered; a judicially ascertained compensation for wrong. The remedy wrongful act) as well as damage suffered by nationals,
should be commensurate with the loss, so that the injured party may be whether persons or companies, on whose behalf the State
made whole.1
is claiming within the framework of diplomatic protec-
tion.
Likewise, the role of compensation was articulated by
PCIJ in the following terms:
(6) In addition to ICJ, international tribunals dealing
Restitution in kind, or, if this is not possible, payment of a sum corre- with issues of compensation include the Internation-
sponding to the value which a restitution in kind would bear; the award, al Tribunal for the Law of the Sea,519 the Iran-United
if need be, of damages for loss sustained which would not be covered States Claims Tribunal,520 human rights courts and other
by restitution in kind or payment in place of it—such are the principles
which should serve to determine the amount of compensation due for 16 In the Velásquez Rodriguez, Compensatory Damages case, the
an act contrary to international law.1
Inter-American Court of Human Rights held that international law did
not recognize the concept of punitive or exemplary damages (Series
C, No. 7 (1989)). See also Letelier and Moffitt, ILR, vol. 88, p. 727
para. 152. See also the statement by PCIJ in Factory at Chorzów, Mer- (1992), concerning the assassination in Washington, D.C., by Chilean
its (footnote 34 above), declaring that “[i]t is a principle of interna- agents of a former Chilean minister; the compromis excluded any award
tional law that the reparation of a wrong may consist in an indemnity” of punitive damages, despite their availability under United States law.
(p. 27). On punitive damages, see also N. Jørgensen, “A reappraisal of puni-
1 Factory at Chorzów, Jurisdiction (see footnote 34 above); Fisher- tive damages in international law”, BYBIL, 1997, vol. 68, pp. 247–266;
ies Jurisdiction (see footnote 432 above), pp. 203–205, paras. 71–76; and S. Wittich, “Awe of the gods and fear of the priests: punitive damag-
Military and Paramilitary Activities in and against Nicaragua es in the law of State responsibility”, Austrian Review of International
(see footnote 36 above), p. 142. and European Law, vol. 3, No. 1 (1998), p. 101.
1 Factory at Chorzów, Merits (see footnote 34 above), pp. 47–48. 1 See paragraph (3) of the commentary to article 37.
1 UNRIAA, vol. VII (Sales No. 1956.V.5), p. 32, at p. 39 (1923). 1 For the requirement of a sufficient causal link between the inter-
1 Factory at Chorzów, Merits (see footnote 34 above), p. 47, nationally wrongful act and the damage, see paragraphs (11) to (13) of
cited and applied, inter alia, by ITLOS in the case of the M/V “Saiga” the commentary to article 31.
19 For example, the M/V “Saiga” case (see footnote 515 above),
(No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment,
ITLOS Reports 1999 , p. 65, para. 170 (1999). See also Papamichalo- paras. 170–177.
poulos and Others v. Greece (article 50), Eur. Court H.R., Series A, 0 The Iran-United States Claims Tribunal has developed a sub-
No. 330–B, para. 36 (1995); Velásquez Rodríguez (footnote 63 above), stantial jurisprudence on questions of assessment of damage and the
pp. 26–27 and 30–31; and Tippetts, Abbett, McCarthy, Stratton v. TAMS- valuation of expropriated property. For reviews of the tribunal’s juris-
AFFA Consulting Engineers of Iran, Iran-U.S. C.T.R., vol. 6, p. 219, at
p. 225 (1984). (Continued on next page.)
323
Annex 13
bodies,521 and ICSID tribunals under the Convention on came a total loss, the damage sustained by the destroyer
the Settlement of Investment Disputes between States and “Volage”, and the damage resulting from the deaths and
Nationals of other States.522 Other compensation claims injuries of naval personnel. ICJ entrusted the assessment
have been settled by agreement, normally on a without to expert inquiry. In respect of the destroyer Saumarez, the
prejudice basis, with the payment of substantial compen- Court found that “the true measure of compensation” was
sation a term of the agreement.523 The rules and principles “the replacement cost of the [destroyer] at the time of its
developed by these bodies in assessing compensation can loss” and held that the amount of compensation claimed
be seen as manifestations of the general principle stated by the British Government (£ 700,087) was justified.
in article 36. For the damage to the destroyer “Volage”, the experts had
reached a slightly lower figure than the £ 93,812 claimed
(7) As to the appropriate heads of compensable damage by the United Kingdom, “explained by the necessarily ap-
and the principles of assessment to be applied in quantifi- proximate nature of the valuation, especially as regards
cation, these will vary, depending upon the content of par- stores and equipment”. In addition to the amounts awarded
ticular primary obligations, an evaluation of the respective for the damage to the two destroyers, the Court upheld the
behaviour of the parties and, more generally, a concern to United Kingdom’s claim for £ 50,048 representing “the
reach an equitable and acceptable outcome.524 The fol- cost of pensions and other grants made by it to victims or
lowing examples illustrate the types of damage that may their dependants, and for costs of administration, medical
be compensable and the methods of quantification that treatment, etc”.525
may be employed.
(10) In the M/V “Saiga” (No. 2) case, Saint Vincent and
(8) Damage to the State as such might arise out of the the Grenadines sought compensation from Guinea follow-
shooting down of its aircraft or the sinking of its ships, ing the wrongful arrest and detention of a vessel registered
attacks on its diplomatic premises and personnel, dam- in Saint Vincent and the Grenadines, the “Saiga”, and its
age caused to other public property, the costs incurred in crew. ITLOS awarded compensation of US$ 2,123,357
responding to pollution damage, or incidental damage with interest. The heads of damage compensated in-
arising, for example, out of the need to pay pensions and cluded, inter alia, damage to the vessel, including costs
medical expenses for officials injured as the result of a of repair, losses suffered with respect to charter hire of
wrongful act. Such a list cannot be comprehensive and the vessel, costs related to the detention of the vessel, and
the categories of compensable injuries suffered by States damages for the detention of the captain, members of the
are not closed. crew and others on board the vessel. Saint Vincent and the
Grenadines had claimed compensation for the violation
(9) In the Corfu Channel case, the United Kingdom of its rights in respect of ships flying its flag occasioned
sought compensation in respect of three heads of dam- by the arrest and detention of the “Saiga”; however, the
age: replacement of the destroyer Saumarez, which be- tribunal considered that its declaration that Guinea acted
wrongfully in arresting the vessel in the circumstances,
(Footnote 520 continued.) and in using excessive force, constituted adequate repara-
prudence on these subjects, see, inter alia, Aldrich, op. cit. (footnote tion.526 Claims regarding the loss of registration revenue
357 above), chaps. 5–6 and 12; C. N. Brower and J. D. Brueschke, The due to the illegal arrest of the vessel and for the expenses
Iran-United States Claims Tribunal (The Hague, Martinus Nijhoff, resulting from the time lost by officials in dealing with
1998), chaps. 14–18; M. Pellonpää, “Compensable claims before the
Tribunal: expropriation claims”, The Iran-United States Claims Tribu- the arrest and detention of the ship and its crew were also
nal: Its Contribution to the Law of State Responsibility, R. B. Lillich unsuccessful. In respect of the former, the tribunal held
and D. B. MaGraw, eds. (Irvington-on-Hudson, Transnational, 1998), that Saint Vincent and the Grenadines failed to produce
pp. 185–266; and D. P. Stewart, “Compensation and valuation issues”, supporting evidence. In respect of the latter, the tribunal
ibid., pp. 325–385.
1 For a review of the practice of such bodies in awarding compen-
considered that such expenses were not recoverable since
sation, see D. Shelton, Remedies in International Human Rights Law
they were incurred in the exercise of the normal functions
(Oxford University Press, 1999), pp. 214–279. of a flag State.527
ICSID tribunals have jurisdiction to award damages or other rem-
edies in cases concerning investments arising between States parties and (11) In a number of cases, payments have been directly
nationals. Some of these claims involve direct recourse to international
law as a basis of claim. See, e.g., Asian Agricultural Products Limited negotiated between injured and injuring States follow-
v. Republic of Sri Lanka, ICSID Reports (Cambridge University Press, ing wrongful attacks on ships causing damage or sinking
1997), vol. 4, p. 245 (1990). of the vessel, and in some cases, loss of life and injury
See, e.g., Certain Phosphate Lands in Nauru, Preliminary Objec-
among the crew.528 Similar payments have been negoti-
tions (footnote 230 above), and for the Court’s order of discontinuance ated where damage is caused to aircraft of a State, such as
following the settlement, ibid., Order (footnote 232 above); Passage
through the Great Belt (Finland v. Denmark), Order of 10 September Corfu Channel, Assessment of Amount of Compensation (see
1992, I.C.J. Reports 1992, p. 348 (order of discontinuance following
footnote 473 above), p. 249.
settlement); and Aerial Incident of 3 July 1988 (Islamic Republic of 6 The M/V “Saiga” case (see footnote 515 above), para. 176.
Iran v. United States of America), Order of 22 February 1996, I.C.J.
Reports 1996, p. 9 (order of discontinuance following settlement). Ibid., para. 177.
See Aldrich, op. cit. (footnote 357 above), p. 242. See also See the payment by Cuba to the Bahamas for the sinking by Cu-
Graefrath, “Responsibility and damages caused: relationship be- ban aircraft on the high seas of a Bahamian vessel, with loss of life
tween responsibility and damages” (footnote 454 above), p. 101; among the crew (RGDIP, vol. 85 (1981), p. 540), the payment of com-
L. Reitzer, La réparation comme conséquence de l’acte illicite en droit pensation by Israel for an attack in 1967 on the USS Liberty, with loss
international (Paris, Sirey, 1938); Gray, op. cit. (footnote 432 above), of life and injury among the crew (ibid., p. 562), and the payment by
pp. 33–34; J. Personnaz, La réparation du préjudice en droit interna- Iraq of US$ 27 million for the 37 deaths which occurred in May 1987
tional public (Paris, 1939); and M. Iovane, La riparazione nella teoria when Iraqi aircraft severely damaged the USS Stark (AJIL, vol. 83,
e nella prassi dell’illecito internazionale (Milan, Giuffrè, 1990). No. 3 (July 1989), p. 561).
324
Annex 13
the “full and final settlement” agreed between the Islamic (14) Compensation claims for pollution costs have been
Republic of Iran and the United States following a dispute dealt with by UNCC in the context of assessing Iraq’s lia-
over the destruction of an Iranian aircraft and the killing bility under international law “for any direct loss, dam-
of its 290 passengers and crew.529 age—including environmental damage and the depletion
of natural resources … as a result of its unlawful invasion
and occupation of Kuwait”.537 The UNCC Governing
(12) Agreements for the payment of compensation are
Council decision 7 specifies various heads of damage en-
also frequently negotiated by States following attacks on
compassed by “environmental damage and the depletion
diplomatic premises, whether in relation to damage to
of natural resources”.538
the embassy itself530 or injury to its personnel.531 Dam-
age caused to other public property, such as roads and in-
frastructure, has also been the subject of compensation (15) In cases where compensation has been awarded
claims.532 In many cases, these payments have been made or agreed following an internationally wrongful act that
on an ex gratia or a without prejudice basis, without any causes or threatens environmental damage, payments
admission of responsibility.533 have been directed to reimbursing the injured State for
expenses reasonably incurred in preventing or remedying
pollution, or to providing compensation for a reduction in
(13) Another situation in which States may seek com- the value of polluted property.539 However, environmen-
pensation for damage suffered by the State as such is tal damage will often extend beyond that which can be
where costs are incurred in responding to pollution dam- readily quantified in terms of clean-up costs or property
age. Following the crash of the Soviet Cosmos 954 satellite devaluation. Damage to such environmental values (bio-
on Canadian territory in January 1978, Canada’s claim for diversity, amenity, etc.—sometimes referred to as “non-
compensation for expenses incurred in locating, recover- use values”) is, as a matter of principle, no less real and
ing, removing and testing radioactive debris and cleaning compensable than damage to property, though it may be
up affected areas was based “jointly and separately on (a) difficult to quantify.
the relevant international agreements … and (b) general
principles of international law”.534 Canada asserted that
it was applying “the relevant criteria established by gen- (16) Within the field of diplomatic protection, a good
eral principles of international law according to which fair deal of guidance is available as to appropriate compen-
compensation is to be paid, by including in its claim only sation standards and methods of valuation, especially as
those costs that are reasonable, proximately caused by the concerns personal injury and takings of, or damage to,
intrusion of the satellite and deposit of debris and capa- tangible property. It is well established that a State may
ble of being calculated with a reasonable degree of cer- seek compensation in respect of personal injuries suf-
tainty”.535 The claim was eventually settled in April 1981 fered by its officials or nationals, over and above any di-
when the parties agreed on an ex gratia payment of Can$ rect injury it may itself have suffered in relation to the
3 million (about 50 per cent of the amount claimed).536 same event. Compensable personal injury encompasses
not only associated material losses, such as loss of earn-
9 Aerial Incident of 3 July 1988 (see footnote 523 above) (order ings and earning capacity, medical expenses and the like,
of discontinuance following settlement). For the settlement agreement but also non-material damage suffered by the individual
itself, see the General Agreement on the Settlement of Certain Interna- (sometimes, though not universally, referred to as “moral
tional Court of Justice and Tribunal Cases (1996), attached to the Joint
Request for Arbitral Award on Agreed Terms, Iran-U.S. C.T.R., vol. 32, damage” in national legal systems). Non-material damage
pp. 213–216 (1996). is generally understood to encompass loss of loved ones,
0 See, e.g., the Exchange of Notes between the Government of the pain and suffering as well as the affront to sensibilities as-
United Kingdom of Great Britain and Northern Ireland and the Govern- sociated with an intrusion on the person, home or private
ment of the Republic of Indonesia concerning the losses incurred by the life. No less than material injury sustained by the injured
Government of the United Kingdom and by British nationals as a result
of the disturbances in Indonesia in September 1963 (1 December 1966) State, non-material damage is financially assessable and
for the payment by Indonesia of compensation for, inter alia, damage to may be the subject of a claim of compensation, as stressed
the British Embassy during mob violence (Treaty Series No. 34 (1967)) in the “Lusitania” case.540 The umpire considered that
(London, HM Stationery Office) and the payment by Pakistan to the international law provides compensation for mental
United States of compensation for the sacking of the United States
Embassy in Islamabad in 1979 (RGDIP, vol. 85 (1981), p. 880). vol. 1470, No. 24934, p. 269. See also ILM, vol. 20, No. 3 (May 1981),
1 See, e.g., Claim of Consul Henry R. Myers (United States v. Sal-
p. 689.
vador) (1890), Papers relating to the Foreign Relations of the United Security Council resolution 687 (1991), para. 16 (see foot-
States, pp. 64–65; (1892), pp. 24–44 and 49–51; (1893), pp. 174–179,
note 461 above).
181–182 and 184; and Whiteman, Damages in International Law (foot- Decision 7 of 16 March 1992, Criteria for additional categories of
note 347 above), pp. 80–81.
For examples, see Whiteman, Damages in International Law claims (S/AC.26/1991/7/Rev.1), para 35.
9 See the decision of the arbitral tribunal in the Trail Smelter case
(footnote 347 above), p. 81.
See, e.g., the United States-China agreement providing for an ex (footnote 253 above), p. 1911, which provided compensation to the
United States for damage to land and property caused by sulphur diox-
gratia payment of US$ 4.5 million, to be given to the families of those
ide emissions from a smelter across the border in Canada. Compensa-
killed and to those injured in the bombing of the Chinese Embassy in
tion was assessed on the basis of the reduction in value of the affected
Belgrade on 7 May 1999, AJIL, vol. 94, No. 1 (January 2000), p. 127.
The claim of Canada against the Union of Soviet Socialist Repub-
land.
0 See footnote 514 above. International tribunals have frequently
lics for damage caused by Cosmos 954, 23 January 1979 (see footnote
granted pecuniary compensation for moral injury to private parties.
459 above), pp. 899 and 905.
Ibid., p. 907.
For example, the Chevreau case (see footnote 133 above) (English
translation in AJIL, vol. 27, No. 1 (January 1933), p. 153); the Gage
6 Protocol between Canada and the Union of Soviet Socialist Re- case, UNRIAA, vol. IX (Sales No. 59.V.5), p. 226 (1903); the Di Caro
publics in respect of the claim for damages caused by the Satellite case, ibid., vol. X (Sales No. 60.V.4), p. 597 (1903); and the Heirs of
“Cosmos 954” (Moscow, 2 April 1981), United Nations, Treaty Series, Jean Maninat case, ibid., p. 55 (1903).
325
Annex 13
suffering, injury to feelings, humiliation, shame, degrada- on compensation draw on principles of reparation under
tion, loss of social position or injury to credit and reputa- general international law.547
tion, such injuries being “very real, and the mere fact that
they are difficult to measure or estimate by money stand- (20) In addition to a large number of lump-sum com-
ards makes them none the less real and affords no reason pensation agreements covering multiple claims,548 prop-
why the injured person should not be compensated …”.541 erty claims of nationals arising out of an internationally
wrongful act have been adjudicated by a wide range of ad
(17) International courts and tribunals have undertaken hoc and standing tribunals and commissions, with report-
the assessment of compensation for personal injury on ed cases spanning two centuries. Given the diversity of
numerous occasions. For example, in the M/V “Saiga” adjudicating bodies, the awards exhibit considerable vari-
case, 542 the tribunal held that Saint Vincent and the Gren- ability.549 Nevertheless, they provide useful principles to
adines’ entitlement to compensation included damages guide the determination of compensation under this head
for injury to the crew, their unlawful arrest, detention and of damage.
other forms of ill-treatment.
(21) The reference point for valuation purposes is the
(18) Historically, compensation for personal injury suf- loss suffered by the claimant whose property rights have
fered by nationals or officials of a State arose mainly in been infringed. This loss is usually assessed by reference
the context of mixed claims commissions dealing with to specific heads of damage relating to (i) compensation
State responsibility for injury to aliens. Claims commis- for capital value; (ii) compensation for loss of profits; and
sions awarded compensation for personal injury both in (iii) incidental expenses.
cases of wrongful death and deprivation of liberty. Where
claims were made in respect of wrongful death, damages (22) Compensation reflecting the capital value of prop-
were generally based on an evaluation of the losses of the erty taken or destroyed as the result of an internationally
surviving heirs or successors, calculated in accordance wrongful act is generally assessed on the basis of the “fair
with the well-known formula of Umpire Parker in the market value” of the property lost.550 The method used to
“Lusitania” case:
Estimate the amounts (a) which the decedent, had he not been killed, of Human Rights (The Hague, Martinus Nijhoff, 1999); and R. Pisillo
would probably have contributed to the claimant, add thereto (b) the Mazzeschi, “La riparazione per violazione dei diritti umani nel diritto
pecuniary value to such claimant of the deceased’s personal services internazionale e nella Convenzione europea”, La Comunità internazi-
in claimant’s care, education, or supervision, and also add (c) reason- onale, vol. 53, No. 2 (1998), p. 215.
able compensation for such mental suffering or shock, if any, caused See, e.g., the decision of the Inter-American Court of Human
by the violent severing of family ties, as claimant may actually have Rights in the Velásquez Rodríguez case (footnote 63 above), pp. 26–27
sustained by reason of such death. The sum of these estimates reduced and 30–31. Cf. Papamichalopoulos (footnote 515 above).
to its present cash value, will generally represent the loss sustained by See, e.g., R. B. Lillich and B. H. Weston, International Claims:
claimant. Their Settlement by Lump Sum Agreements (Charlottesville, Univer-
sity Press of Virginia, 1975); and B. H. Weston, R. B. Lillich and D. J.
In cases of deprivation of liberty, arbitrators sometimes Bederman, International Claims: Their Settlement by Lump Sum Agree-
awarded a set amount for each day spent in detention.544 ments, 1975–1995 (Ardsley, N.Y., Transnational, 1999).
Awards were often increased when abusive conditions of 9 Controversy has persisted in relation to expropriation cases,
confinement accompanied the wrongful arrest and im- particularly over standards of compensation applicable in the light of
the distinction between lawful expropriation of property by the State
prisonment, resulting in particularly serious physical or on the one hand, and unlawful takings on the other, a distinction clearly
psychological injury.545 drawn by PCIJ in Factory at Chorzów, Merits (footnote 34 above), p. 47.
In a number of cases, tribunals have employed the distinction to rule in
(19) Compensation for personal injury has also been favour of compensation for lost profits in cases of unlawful takings (see,
e.g., the observations of the arbitrator in Libyan American Oil Company
dealt with by human rights bodies, in particular the Eu- (LIAMCO) (footnote 508 above), pp. 202–203; and also the Aminoil
ropean Court of Human Rights and the Inter-American arbitration (footnote 496 above), p. 600, para. 138; and Amoco Interna-
Court of Human Rights. Awards of compensation encom- tional Finance Corporation v. The Government of the Islamic Republic
pass material losses (loss of earnings, pensions, medical of Iran, Iran-U.S. C.T.R., vol. 15, p. 189, at p. 246, para. 192 (1987)).
expenses, etc.) and non-material damage (pain and suf- Not all cases, however, have drawn a distinction between the applicable
compensation principles based on the lawfulness or unlawfulness of the
fering, mental anguish, humiliation, loss of enjoyment of taking. See, e.g., the decision of the Iran-United States Claims Tribunal
life and loss of companionship or consortium), the lat- in Phillips Petroleum (footnote 164 above), p. 122, para. 110. See also
ter usually quantified on the basis of an equitable assess- Starrett Housing Corporation v. Government of the Islamic Republic of
ment. Hitherto, amounts of compensation or damages Iran, Iran-U.S. C.T.R., vol. 16, p. 112 (1987), where the tribunal made
no distinction in terms of the lawfulness of the taking and its award
awarded or recommended by these bodies have been mod- included compensation for lost profits.
est.546 Nonetheless, the decisions of human rights bodies 0 See American International Group, Inc. v. The Islamic Republic
of Iran, which stated that, under general international law, “the valuation
1 “Lusitania” (see footnote 514 above), p. 40. should be made on the basis of the fair market value of the shares”, Iran-
See footnote 515 above. U.S. C.T.R., vol. 4, p. 96, at p. 106 (1983). In Starrett Housing Corpora-
“Lusitania” (see footnote 514 above), p. 35. tion (see footnote 549 above), the tribunal accepted its expert’s concept
For example, the “Topaze” case, UNRIAA, vol. IX (Sales of fair market value “as the price that a willing buyer would pay to a
willing seller in circumstances in which each had good information,
No. 59.V.5), p. 387, at p. 389 (1903); and the Faulkner case, ibid.,
each desired to maximize his financial gain, and neither was under
vol. IV (Sales No. 1951.V.1), p. 67, at p. 71 (1926).
For example, the William McNeil case, ibid., vol. V (Sales
duress or threat” (p. 201). See also the Guidelines on the Treatment
of Foreign Direct Investment, which state in paragraph 3 of part IV
No. 1952.V.3), p. 164, at p. 168 (1931). that compensation “will be deemed ‘adequate’ if it is based on the fair
6 See the review by Shelton, op. cit. (footnote 521 above), market value of the taken asset as such value is determined immedi-
chaps. 8–9; A. Randelzhofer and C. Tomuschat, eds., State Responsi- ately before the time at which the taking occurred or the decision to
bility and the Individual: Reparation in Instances of Grave Violations take the asset became publicly known”, World Bank, Legal Framework
326
Annex 13
assess “fair market value”, however, depends on the nature (24) An alternative valuation method for capital loss is
of the asset concerned. Where the property in question or the determination of net book value, i.e. the difference be-
comparable property is freely traded on an open market, tween the total assets of the business and total liabilities
value is more readily determined. In such cases, the choice as shown on its books. Its advantages are that the figures
and application of asset-based valuation methods based can be determined by reference to market costs, they are
on market data and the physical properties of the assets is normally drawn from a contemporaneous record, and they
relatively unproblematic, apart from evidentiary difficul- are based on data generated for some other purpose than
ties associated with long outstanding claims.551 Where the supporting the claim. Accordingly, net book value (or
property interests in question are unique or unusual, for some variant of this method) has been employed to assess
example, art works or other cultural property,552 or are the value of businesses. The limitations of the method lie
not the subject of frequent or recent market transactions, in the reliance on historical figures, the use of account-
the determination of value is more difficult. This may be ing principles which tend to undervalue assets, especially
true, for example, in respect of certain business entities in in periods of inflation, and the fact that the purpose for
the nature of a going concern, especially if shares are not which the figures were produced does not take account of
regularly traded.553 the compensation context and any rules specific to it. The
balance sheet may contain an entry for goodwill, but the
reliability of such figures depends upon their proximity to
(23) Decisions of various ad hoc tribunals since 1945 the moment of an actual sale.
have been dominated by claims in respect of nationalized
business entities. The preferred approach in these cases
has been to examine the assets of the business, making (25) In cases where a business is not a going concern,555
allowance for goodwill and profitability, as appropriate. so-called “break-up”, “liquidation” or “dissolution” value
This method has the advantage of grounding compensa- is generally employed. In such cases, no provision is made
tion as much as possible in some objective assessment of for value over and above the market value of the individ-
value linked to the tangible asset backing of the business. ual assets. Techniques have been developed to construct,
The value of goodwill and other indicators of profitability in the absence of actual transactions, hypothetical values
may be uncertain, unless derived from information pro- representing what a willing buyer and willing seller might
vided by a recent sale or acceptable arms-length offer. Yet, agree.556
for profitable business entities where the whole is greater
than the sum of the parts, compensation would be incom- (26) Since 1945, valuation techniques have been devel-
plete without paying due regard to such factors.554 oped to factor in different elements of risk and probabili-
ty.557 The discounted cash flow (DCF) method has gained
for the Treatment of Foreign Investment (Washington, D.C., 1992),
vol. II, p. 41. Likewise, according to article 13, paragraph 1, of the some favour, especially in the context of calculations in-
Energy Charter Treaty, compensation for expropriation “shall amount volving income over a limited duration, as in the case of
to the fair market value of the Investment expropriated at the time wasting assets. Although developed as a tool for assessing
immediately before the Expropriation”. commercial value, it can also be useful in the context of
1 Particularly in the case of lump-sum settlements, agreements
calculating value for compensation purposes.558 But dif-
have been concluded decades after the claims arose. See, e.g., the ficulties can arise in the application of the DCF method to
Agreement between the Government of the United Kingdom of Great
Britain and Northern Ireland and the Government of the Union of So- establish capital value in the compensation context. The
viet Socialist Republics concerning the Settlement of Mutual Financial method analyses a wide range of inherently speculative
and Property Claims arising before 1939 of 15 July 1986 (Treaty Series, elements, some of which have a significant impact upon
No. 65 (1986)) (London, HM Stationery Office) concerning claims dat- the outcome (e.g. discount rates, currency fluctuations,
ing back to 1917 and the Agreement between the Government of the
United Kingdom of Great Britain and Northern Ireland and the Govern-
inflation figures, commodity prices, interest rates and
ment of the People’s Republic of China concerning the Settlement of other commercial risks). This has led tribunals to adopt a
Mutual Historical Property Claims of 5 June 1987 (Treaty Series,
No. 37 (1987), ibid.) in respect of claims arising in 1949. In such cases, For an example of a business found not to be a going concern, see
the choice of valuation method was sometimes determined by avail- Phelps Dodge Corp. v. The Islamic Republic of Iran, Iran-U.S. C.T.R.,
ability of evidence. vol. 10, p. 121 (1986), where the enterprise had not been established
See Report and recommendations made by the panel of Commis- long enough to demonstrate its viability. In SEDCO, Inc. v. Nation-
sioners concerning part two of the first instalment of individual claims al Iranian Oil Co., the claimant sought dissolution value only, ibid.,
for damages above US$ 100 000 (category “D” claims), 12 March 1998 p. 180 (1986).
(S/AC.26/1998/3), paras. 48–49, where UNCC considered a compensa- 6 The hypothetical nature of the result is discussed in Amoco In-
tion claim in relation to the taking of the claimant’s Islamic art collec- ternational Finance Corporation (see footnote 549 above), at pp. 256–
tion by Iraqi military personnel. 257, paras. 220–223.
Where share prices provide good evidence of value, they may See, for example, the detailed methodology developed by UNCC
be utilized, as in INA Corporation v. The Government of the Islamic for assessing Kuwaiti corporate claims (report and recommendations
Republic of Iran, Iran-U.S. C.T.R., vol. 8, p. 373 (1985). made by the panel of Commissioners concerning the first instalment
Early claims recognized that even where a taking of property was of “E4” claims, 19 March 1999 (S/AC.26/1999/4), paras. 32–62) and
lawful, compensation for a going concern called for something more claims filed on behalf of non-Kuwaiti corporations and other business
than the value of the property elements of the business. The American- entities, excluding oil sector, construction/engineering and export guar-
Mexican Claims Commission, in rejecting a claim for lost profits in antee claims (report and recommendations made by the panel of Com-
the case of a lawful taking, stated that payment for property elements missioners concerning the third instalment of “E2” claims, 9 December
would be “augmented by the existence of those elements which consti- 1999 (S/AC.26/1999/22)).
tute a going concern”: Wells Fargo and Company (Decision No. 22–B) The use of the discounted cash flow method to assess capital
(1926), American-Mexican Claims Commission (Washington, D.C., value was analysed in some detail in Amoco International Finance
United States Government Printing Office, 1948), p. 153 (1926). See Corporation (see footnote 549 above); Starrett Housing Corporation
also decision No. 9 of the UNCC Governing Council in “Propositions (ibid.); Phillips Petroleum Company Iran (see footnote 164 above); and
and conclusions on compensation for business losses: types of damages Ebrahimi (Shahin Shaine) v. Islamic Republic of Iran, Iran-U.S. C.T.R.,
and their valuation” (S/AC.26/1992/9), para. 16. vol. 30, p. 170 (1994).
327
Annex 13
cautious approach to the use of the method. Hence, al- compared with tangible assets, profits (and intangible
though income-based methods have been accepted in assets which are income-based) are relatively vulner-
principle, there has been a decided preference for asset- able to commercial and political risks, and increasingly
based methods.559 A particular concern is the risk of dou- so the further into the future projections are made. In
ble-counting which arises from the relationship between cases where lost future profits have been awarded, it has
the capital value of an enterprise and its contractually been where an anticipated income stream has attained
based profits.560 sufficient attributes to be considered a legally protected
interest of sufficient certainty to be compensable.567 This
(27) Paragraph 2 of article 36 recognizes that in certain has normally been achieved by virtue of contractual
cases compensation for loss of profits may be appropri- arrangements or, in some cases, a well-established history
ate. International tribunals have included an award for of dealings.568
loss of profits in assessing compensation: for example,
the decisions in the Cape Horn Pigeon case561 and Sap- (28) Three categories of loss of profits may be distin-
phire International Petroleums Ltd. v. National Iranian guished: first, lost profits from income-producing prop-
Oil Company.562 Loss of profits played a role in the Fac- erty during a period when there has been no interference
tory at Chorzów case itself, PCIJ deciding that the in- with title as distinct from temporary loss of use; secondly,
jured party should receive the value of property by way lost profits from income-producing property between the
of damages not as it stood at the time of expropriation date of taking of title and adjudication;569 and thirdly, lost
but at the time of indemnification.563 Awards for loss future profits in which profits anticipated after the date of
of profits have also been made in respect of contract- adjudication are awarded.570
based lost profits in Libyan American Oil Company
(LIAMCO)564 and in some ICSID arbitrations.565 (29) The first category involves claims for loss of prof-
Nevertheless, lost profits have not been as commonly its due to the temporary loss of use and enjoyment of the
awarded in practice as compensation for accrued losses. income-producing asset.571 In these cases there is no in-
Tribunals have been reluctant to provide compensation terference with title and hence in the relevant period the
for claims with inherently speculative elements.566 When loss compensated is the income to which the claimant was
9 See, e.g., Amoco (footnote 549 above); Starrett Housing Corpora- entitled by virtue of undisturbed ownership.
tion (ibid.); and Phillips Petroleum Company Iran (footnote 164 above).
In the context of claims for lost profits, there is a corresponding prefer- (30) The second category of claims relates to the un-
ence for claims to be based on past performance rather than forecasts. lawful taking of income-producing property. In such cases
For example, the UNCC guidelines on valuation of business losses in
decision 9 (see footnote 554 above) state: “The method of a valuation 6 In considering claims for future profits, the UNCC panel dealing
should therefore be one that focuses on past performance rather than on
forecasts and projections into the future” (para. 19). with the fourth instalment of “E3” claims expressed the view that in
60 See, e.g., Ebrahimi (footnote 558 above), p. 227, para. 159. order for such claims to warrant a recommendation, “it is necessary to
61 Navires (see footnote 222 above) (Cape Horn Pigeon case),
demonstrate by sufficient documentary and other appropriate evidence
a history of successful (i.e. profitable) operation, and a state of affairs
p. 63 (1902) (including compensation for lost profits resulting from the which warrants the conclusion that the hypothesis that there would have
seizure of an American whaler). Similar conclusions were reached in been future profitable contracts is well founded” (S/AC.26/1999/14),
the Delagoa Bay Railway case, Martens, op. cit. (footnote 441 above), para. 140 (see footnote 566 above).
vol. XXX, p. 329 (1900); Moore, History and Digest, vol. II, p. 1865 6 According to Whiteman, “in order to be allowable, prospective
(1900); the William Lee case (footnote 139 above), pp. 3405–3407; profits must not be too speculative, contingent, uncertain, and the like.
and the Yuille Shortridge and Co. case (Great Britain v. Portugal), There must be proof that they were reasonably anticipated; and that the
Lapradelle–Politis, op. cit. (ibid.), vol. II, p. 78 (1861). Contrast the de- profits anticipated were probable and not merely possible” (Damages in
cisions in the Canada case (United States of America v. Brazil), Moore, International Law (Washington, D.C., United States Government Print-
History and Digest, vol. II, p. 1733 (1870) and the Lacaze case (footing Office, 1943), vol. III, p. 1837).
note 139 above). 69 This is most commonly associated with the deprivation of prop-
6 ILR, vol. 35, p. 136, at pp. 187 and 189 (1963).
6 Factory at Chorzów, Merits (see footnote 34 above), pp. 47–48
erty, as opposed to wrongful termination of a contract or concession.
If restitution were awarded, the award of lost profits would be analogous
and 53. to cases of temporary dispossession. If restitution is not awarded, as in
6 Libyan American Oil Company (LIAMCO) (see footnote 508 the Factory at Chorzów, Merits (see footnote 34 above) and Norwegian
above), p. 140. Shipowners’ Claims (footnote 87 above), lost profits may be awarded
6 See, e.g., Amco Asia Corporation and Others v. The Republic up to the time when compensation is made available as a substitute for
of Indonesia, First Arbitration (1984); Annulment (1986); Resubmit- restitution.
ted case (1990), ICSID Reports (Cambridge, Grotius, 1993), vol. 1, 0 Awards of lost future profits have been made in the context of a
p. 377; and AGIP SpA v. the Government of the People’s Republic of the contractually protected income stream, as in Amco Asia Corporation
Congo, ibid., p. 306 (1979). and Others v. The Republic of Indonesia, First Arbitration; Annulment;
66 According to the arbitrator in the Shufeldt case (see footnote 87 Resubmitted case (see footnote 565 above), rather than on the basis
above), “the lucrum cessans must be the direct fruit of the contract of the taking of income-producing property. In the UNCC report and
and not too remote or speculative” (p. 1099). See also Amco Asia recommendations on the second instalment of “E2” claims, dealing
Corporation and Others (footnote 565 above), where it was stated that with reduced profits, the panel found that losses arising from a decline
“non-speculative profits” were recoverable (p. 612, para. 178). UNCC in business were compensable even though tangible property was not
has also stressed the requirement for claimants to provide “clear and affected and the businesses continued to operate throughout the relevant
convincing evidence of ongoing and expected profitability” (see re- period (S/AC.26/1999/6, para. 76).
port and recommendations made by the panel of Commissioners 1 Many of the early cases concern vessels seized and detained.
concerning the first instalment of “E3” claims, 17 December 1998 In the “Montijo”, an American vessel seized in Panama, the Umpire
(S/AC.26/1998/13), para. 147). In assessing claims for lost profits on allowed a sum of money per day for loss of the use of the vessel
construction contracts, Panels have generally required that the claim- (see footnote 117 above). In the “Betsey”, compensation was awarded
ant’s calculation take into account the risk inherent in the project (ibid., not only for the value of the cargo seized and detained, but also for
para. 157; report and recommendations made by the panel of Commis- demurrage for the period representing loss of use: Moore, Internation-
sioners concerning the fourth instalment of “E3” claims, 30 September al Adjudications (New York, Oxford University Press, 1933) vol. V,
1999 (S/AC.26/1999/14), para. 126). p. 47, at p. 113.
328
Annex 13
lost profits have been awarded for the period up to the which seek to discount speculative elements from pro-
time of adjudication. In the Factory at Chorzów case,572 jected figures.
this took the form of re-invested income, representing
profits from the time of taking to the time of adjudication. (33) If loss of profits are to be awarded, it is inappropri-
In the Norwegian Shipowners’ Claims case,573 lost profits ate to award interest under article 38 on the profit-earning
were similarly not awarded for any period beyond the date capital over the same period of time, simply because the
of adjudication. Once the capital value of income-produc- capital sum cannot be simultaneously earning interest and
ing property has been restored through the mechanism of generating profits. The essential aim is to avoid double
compensation, funds paid by way of compensation can recovery while ensuring full reparation.
once again be invested to re-establish an income stream.
Although the rationale for the award of lost profits in (34) It is well established that incidental expenses are
these cases is less clearly articulated, it may be attributed compensable if they were reasonably incurred to repair
to a recognition of the claimant’s continuing beneficial damage and otherwise mitigate loss arising from the
interest in the property up to the moment when potential breach.579 Such expenses may be associated, for example,
restitution is converted to a compensation payment.574 with the displacement of staff or the need to store or sell
undelivered products at a loss.
(31) The third category of claims for loss of profits arises
in the context of concessions and other contractually pro- Article 37. Satisfaction
tected interests. Again, in such cases, lost future income
has sometimes been awarded.575 In the case of contracts, 1. The State responsible for an internationally
it is the future income stream which is compensated, up to wrongful act is under an obligation to give satisfaction
the time when the legal recognition of entitlement ends. In for the injury caused by that act insofar as it cannot be
some contracts this is immediate, e.g. where the contract made good by restitution or compensation.
is determinable at the instance of the State,576 or where
some other basis for contractual termination exists. Or it 2. Satisfaction may consist in an acknowledgement
may arise from some future date dictated by the terms of of the breach, an expression of regret, a formal apology
the contract itself. or another appropriate modality.
3. Satisfaction shall not be out of proportion to

(32) In other cases, lost profits have been excluded on the injury and may not take a form humiliating to the
the basis that they were not sufficiently established as a le- responsible State.
gally protected interest. In the Oscar Chinn case577 a mo-
nopoly was not accorded the status of an acquired right. In
the Asian Agricultural Products case,578 a claim for lost Commentary
profits by a newly established business was rejected for
lack of evidence of established earnings. Claims for lost (1) Satisfaction is the third form of reparation which the
profits are also subject to the usual range of limitations responsible State may have to provide in discharge of its
on the recovery of damages, such as causation, remote- obligation to make full reparation for the injury caused by
ness, evidentiary requirements and accounting principles, an internationally wrongful act. It is not a standard form
of reparation, in the sense that in many cases the injury
Factory at Chorzów, Merits (see footnote 34 above). caused by an internationally wrongful act of a State may
Norwegian Shipowners’ Claims (see footnote 87 above). be fully repaired by restitution and/or compensation. The
For the approach of UNCC in dealing with loss of profits claims rather exceptional character of the remedy of satisfaction,
associated with the destruction of businesses following the Iraqi inva- and its relationship to the principle of full reparation, are
sion of Kuwait, see S/AC.26/1999/4 (footnote 557 above), paras. 184– emphasized by the phrase “insofar as [the injury] cannot
187.
575 In some cases, lost profits were not awarded beyond the date of
be made good by restitution or compensation”. It is only
adjudication, though for reasons unrelated to the nature of the income-
in those cases where those two forms have not provided
producing property. See, e.g., Robert H. May (United States v. Guate- full reparation that satisfaction may be required.
mala), 1900 For. Rel. 648; and Whiteman, Damages in International
Law, vol. III (footnote 568 above), pp. 1704 and 1860, where the con- (2) Article 37 is divided into three paragraphs, each
cession had expired. In other cases, circumstances giving rise to force
majeure had the effect of suspending contractual obligations: see, e.g., dealing with a separate aspect of satisfaction. Paragraph 1
Gould Marketing, Inc. v. Ministry of Defence of the Islamic Republic addresses the legal character of satisfaction and the types
of Iran, Iran-U.S. C.T.R., vol. 6, p. 272 (1984); and Sylvania Techni- of injury for which it may be granted. Paragraph 2 de-
cal Systems, Inc. v. The Government of the Islamic Republic of Iran, scribes, in a non-exhaustive fashion, some modalities of
ibid., vol. 8, p. 298 (1985). In the Delagoa Bay Railway case (foot- satisfaction. Paragraph 3 places limitations on the obliga-
note 561 above), and in Shufeldt (see footnote 87 above), lost profits
were awarded in respect of a concession which had been terminated. 9 Compensation for incidental expenses has been awarded by
In Sapphire International Petroleums Ltd. (see footnote 562 above),
p. 136; Libyan American Oil Company (LIAMCO) (see footnote 508 UNCC (report and recommendations on the first instalment of “E2”
above), p. 140; and Amco Asia Corporation and Others v. The Republic claims (S/AC.26/1998/7) where compensation was awarded for evacua-
of Indonesia, First Arbitration; Annulment; Resubmitted case (see foot- tion and relief costs (paras. 133, 153 and 249), repatriation (para. 228),
note 565 above), awards of lost profits were also sustained on the basis termination costs (para. 214), renovation costs (para. 225) and expenses
of contractual relationships. in mitigation (para. 183)), and by the Iran-United States Claims Tribu-
6 As in Sylvania Technical Systems, Inc. (see the footnote above). nal (see General Electric Company v. The Government of the Islamic
See footnote 385 above.
Republic of Iran, Iran-U.S. C.T.R., vol. 26, p. 148, at pp. 165–169,
paras. 56–60 and 67–69 (1991), awarding compensation for items
See footnote 522 above. resold at a loss and for storage costs).
329
Annex 13
tion to give satisfaction, having regard to former practices (5) Paragraph 2 of article 37 provides that satisfaction
in cases where unreasonable forms of satisfaction were may consist in an acknowledgement of the breach, an ex-
sometimes demanded. pression of regret, a formal apology or another appropri-
ate modality. The forms of satisfaction listed in the article
(3) In accordance with paragraph 2 of article 31, the are no more than examples. The appropriate form of sat-
injury for which a responsible State is obliged to make isfaction will depend on the circumstances and cannot be
full reparation embraces “any damage, whether material prescribed in advance.587 Many possibilities exist, includ-
or moral, caused by the internationally wrongful act of ing due inquiry into the causes of an accident resulting in
a State”. Material and moral damage resulting from an harm or injury,588 a trust fund to manage compensation
internationally wrongful act will normally be financially payments in the interests of the beneficiaries, disciplinary
assessable and hence covered by the remedy of compen- or penal action against the individuals whose conduct
sation. Satisfaction, on the other hand, is the remedy for caused the internationally wrongful act589 or the award of
those injuries, not financially assessable, which amount symbolic damages for non-pecuniary injury.590 Assuranc-
to an affront to the State. These injuries are frequently es or guarantees of non-repetition, which are dealt with in
of a symbolic character, arising from the very fact of the the articles in the context of cessation, may also amount to
breach of the obligation, irrespective of its material con- a form of satisfaction.591 Paragraph 2 does not attempt to
sequences for the State concerned. list all the possibilities, but neither is it intended to exclude
them. Moreover, the order of the modalities of satisfac-
(4) The availability of the remedy of satisfaction for in- tion in paragraph 2 is not intended to reflect any hierarchy
jury of this kind, sometimes described as “non-material or preference. Paragraph 2 simply gives examples which
injury”,580 is well established in international law. The are not listed in order of appropriateness or seriousness.
point was made, for example, by the tribunal in the “Rain- The appropriate mode, if any, will be determined having
bow Warrior” arbitration: regard to the circumstances of each case.
There is a long established practice of States and international Courts
and Tribunals of using satisfaction as a remedy or form of reparation (6) One of the most common modalities of satisfaction
(in the wide sense) for the breach of an international obligation. This provided in the case of moral or non-material injury to
practice relates particularly to the case of moral or legal damage done the State is a declaration of the wrongfulness of the act by
directly to the State, especially as opposed to the case of damage to
persons involving international responsibilities.1 a competent court or tribunal. The utility of declaratory
relief as a form of satisfaction in the case of non-material
State practice also provides many instances of claims for injury to a State was affirmed by ICJ in the Corfu Chan-
satisfaction in circumstances where the internationally nel case, where the Court, after finding unlawful a mine-
wrongful act of a State causes non-material injury to an- sweeping operation (Operation Retail) carried out by the
other State. Examples include situations of insults to the British Navy after the explosion, said:
symbols of the State, such as the national flag,582 viola-
tions of sovereignty or territorial integrity,583 attacks on [T]o ensure respect for international law, of which it is the organ, the
ships or aircraft,584 ill-treatment of or deliberate attacks Court must declare that the action of the British Navy constituted a
on heads of State or Government or diplomatic or consu- violation of Albanian sovereignty.
lar representatives or other protected persons585 and vio-
lations of the premises of embassies or consulates or of (La prassi italiana di diritto internazionale, 2nd series (see footnote
498 above), vol. III, No. 2558). Also see cases of apologies and expres-
the residences of members of the mission.586 sions of regret following demonstrations in front of the French Em-
0 See C. Dominicé, “De la réparation constructive du préjudice
bassy in Belgrade in 1961 (RGDIP, vol. 65 (1961), p. 610), and the fires
in the libraries of the United States Information Services in Cairo in
immatériel souffert par un État”, L’ordre juridique international entre 1964 (ibid., vol. 69 (1965), pp. 130–131) and in Karachi in 1965 (ibid.,
tradition et innovation: recueil d’études (Paris, Presses Universitaires vol. 70 (1966), pp. 165–166).
de France, 1997), p. 349, at p. 354. In the “Rainbow Warrior” arbitration the tribunal, while rejecting
New Zealand’s claims for restitution and/or cessation and declining to
para. 122. award compensation, made various declarations by way of satisfaction,
Examples are the Magee case (Whiteman, Damages in Interna- and in addition a recommendation “to assist [the parties] in putting an
tional Law, vol. I (see footnote 347 above), p. 64 (1874)), the Petit end to the present unhappy affair”. Specifically, it recommended that
Vaisseau case (La prassi italiana di diritto internazionale, 2nd series France contribute US$ 2 million to a fund to be established “to promote
(see footnote 498 above), vol. III, No. 2564 (1863)) and the case that close and friendly relations between the citizens of the two countries”
arose from the insult to the French flag in Berlin in 1920 (C. Eagleton, (see footnote 46 above), p. 274, paras. 126–127. See also L. Migliorino,
The Responsibility of States in International Law (New York University “Sur la déclaration d’illicéité comme forme de satisfaction: à propos
Press, 1928), pp. 186–187). de la sentence arbitrale du 30 avril 1990 dans l’affaire du Rainbow
As occurred in the “Rainbow Warrior” arbitration (see footnote Warrior”, RGDIP, vol. 96 (1992), p. 61.
46 above). For example, the United States naval inquiry into the causes of
Examples include the attack carried out in 1961 against a Soviet the collision between an American submarine and the Japanese fishing
aircraft transporting President Brezhnev by French fighter planes over vessel, the Ehime Maru, in waters off Honolulu, The New York Times,
the international waters of the Mediterranean (RGDIP, vol. 65 (1961), 8 February 2001, sect. 1, p. 1.
p. 603); and the sinking of a Bahamian ship in 1980 by a Cuban aircraft 9 Action against the guilty individuals was requested in the case
(ibid., vol. 84 (1980), pp. 1078–1079). of the killing in 1948, in Palestine, of Count Bernadotte while he was
See F. Przetacznik, “La responsabilité internationale de l’État à acting in the service of the United Nations (Whiteman, Digest of Inter-
raison des préjudices de caractère moral et politique causés à un autre national Law, vol. 8, pp. 742–743) and in the case of the killing of two
État”, RGDIP, vol. 78 (1974), p. 919, at p. 951. United States officers in Tehran (RGDIP, vol. 80 (1976, p. 257).
6 Examples include the attack by demonstrators in 1851 on the 90 See, e.g., the cases “I’m Alone”, UNRIAA, vol. III (Sales
Spanish Consulate in New Orleans (Moore, Digest, vol. VI, p. 811, at No. 1949.V.2), p. 1609 (1935); and “Rainbow Warrior” (footnote 46
p. 812), and the failed attempt of two Egyptian policemen, in 1888, above).
to intrude upon the premises of the Italian Consulate at Alexandria 91 See paragraph (11) of the commentary to article 30.
330
Annex 13
This declaration is in accordance with the request made by Albania (8) Excessive demands made under the guise of “satis-
through her Counsel, and is in itself appropriate satisfaction.9 faction” in the past600 suggest the need to impose some
limit on the measures that can be sought by way of satis-
This has been followed in many subsequent cases.593 faction to prevent abuses, inconsistent with the principle
However, while the making of a declaration by a com- of the equality of States.601 In particular, satisfaction is
petent court or tribunal may be treated as a form of sat- not intended to be punitive in character, nor does it in-
isfaction in a given case, such declarations are not intrin- clude punitive damages. Paragraph 3 of article 37 places
sically associated with the remedy of satisfaction. Any limitations on the obligation to give satisfaction by setting
court or tribunal which has jurisdiction over a dispute has out two criteria: first, the proportionality of satisfaction to
the injury; and secondly, the requirement that satisfaction
the authority to determine the lawfulness of the conduct
should not be humiliating to the responsible State. It is
in question and to make a declaration of its findings, as true that the term “humiliating” is imprecise, but there are
a necessary part of the process of determining the case. certainly historical examples of demands of this kind.
Such a declaration may be a preliminary to a decision
on any form of reparation, or it may be the only remedy
sought. What the Court did in the Corfu Channel case was Article 38. Interest
to use a declaration as a form of satisfaction in a case 1. Interest on any principal sum due under this
where Albania had sought no other form. Moreover, such chapter shall be payable when necessary in order to
a declaration has further advantages: it should be clear ensure full reparation. The interest rate and mode of
and self-contained and will by definition not exceed the calculation shall be set so as to achieve that result.
scope or limits of satisfaction referred to in paragraph 3
of article 37. A judicial declaration is not listed in para- 2. Interest runs from the date when the principal
sum should have been paid until the date the obliga-
graph 2 only because it must emanate from a competent
tion to pay is fulfilled.
third party with jurisdiction over a dispute, and the articles
are not concerned to specify such a party or to deal with
issues of judicial jurisdiction. Instead, article 37 specifies Commentary
the acknowledgement of the breach by the responsible
State as a modality of satisfaction. (1) Interest is not an autonomous form of reparation,
nor is it a necessary part of compensation in every case.
For this reason the term “principal sum” is used in ar-
(7) Another common form of satisfaction is an apology, ticle 38 rather than “compensation”. Nevertheless, an
which may be given verbally or in writing by an appro- award of interest may be required in some cases in order
priate official or even the Head of State. Expressions of to provide full reparation for the injury caused by an in-
regret or apologies were required in the “I’m Alone”,594 ternationally wrongful act, and it is normally the subject
Kellett595 and “Rainbow Warrior”596 cases, and were of- of separate treatment in claims for reparation and in the
fered by the responsible State in the Consular Relations597 awards of tribunals.
and LaGrand598 cases. Requests for, or offers of, an apol-
ogy are a quite frequent feature of diplomatic practice and (2) As a general principle, an injured State is entitled
the tender of a timely apology, where the circumstances to interest on the principal sum representing its loss, if
justify it, can do much to resolve a dispute. In other cir- that sum is quantified as at an earlier date than the date
cumstances an apology may not be called for, e.g. where of the settlement of, or judgement or award concerning,
a case is settled on an ex gratia basis, or it may be insuf- the claim and to the extent that it is necessary to ensure
full reparation.602 Support for a general rule favouring the
ficient. In the LaGrand case the Court considered that “an
award of interest as an aspect of full reparation is found in
apology is not sufficient in this case, as it would not be in international jurisprudence.603 In the S.S. “Wimbledon”,
other cases where foreign nationals have not been advised PCIJ awarded simple interest at 6 per cent as from the
without delay of their rights under article 36, paragraph date of judgment, on the basis that interest was only pay-
1, of the Vienna Convention and have been subjected to able “from the moment when the amount of the sum due
prolonged detention or sentenced to severe penalties”.599
600 For example, the joint note presented to the Chinese Government
9 Corfu Channel, Merits (see footnote 35 above), p. 35, repeated in in 1900 following the Boxer uprising and the demand by the Confer-
the operative part (p. 36). ence of Ambassadors against Greece in the Tellini affair in 1923: see
9 For example, “Rainbow Warrior” (see footnote 46 above), C. Eagleton, op. cit. (footnote 582 above), pp. 187–188.
601 The need to prevent the abuse of satisfaction was stressed by early
p. 273, para. 123.
9 See footnote 590 above. writers such as J. C. Bluntschli, Das moderne Völkerrecht der civili-
9 Moore, Digest, vol. V, p. 44 (1897). sirten Staten als Rechtsbuch dargestellt, 3rd ed. (Nördlingen, Beck,
96 See footnote 46 above.
1878); French translation by M. C. Lardy, Le droit international codifié,
5th rev. ed. (Paris, Félix Alcan, 1895), pp. 268–269.
9 Vienna Convention on Consular Relations (Paraguay v. United 60 Thus, interest may not be allowed where the loss is assessed in
States of America), Provisional Measures, Order of 9 April 1998, current value terms as at the date of the award. See the Lighthouses
I.C.J. Reports 1998, p. 248. For the text of the United States’ apology, arbitration (footnote 182 above), pp. 252–253.
see United States Department of State, Text of Statement Released in 60 See, e.g., the awards of interest made in the Illinois Central Rail-
Asunción, Paraguay; Press statement by James P. Rubin, Spokesman, road Co. (U.S.A.) v. United Mexican States case, UNRIAA, vol. IV
4 November 1998. For the order discontinuing proceedings of (Sales No. 1951.V.1), p. 134 (1926); and the Lucas case, ILR, vol. 30,
10 November 1998, see I.C.J. Reports 1998, p. 426. p. 220 (1966); see also administrative decision No. III of the United
9 See footnote 119 above.
States-Germany Mixed Claims Commission, UNRIAA, vol. VII (Sales
99 LaGrand, Merits (ibid.), para. 123. No. 1956.V.5), p. 66 (1923).
331
Annex 13
has been fixed and the obligation to pay has been estab- 3. Interest will be paid after the principal amount of awards.610
lished”.604
This provision combines a decision in principle in favour
of interest where necessary to compensate a claimant with
(3) Issues of the award of interest have frequently arisen flexibility in terms of the application of that principle.
in other tribunals, both in cases where the underlying claim At the same time, interest, while a form of compensation,
involved injury to private parties and where the injury was is regarded as a secondary element, subordinated to the
to the State itself.605 The experience of the Iran-United principal amount of the claim.
States Claims Tribunal is worth noting. In The Islamic
Republic of Iran v. The United States of America (Case (5) Awards of interest have also been envisaged by hu-
A–19), the Full Tribunal held that its general jurisdiction to man rights courts and tribunals, even though the compen-
deal with claims included the power to award interest, but sation practice of these bodies is relatively cautious and
it declined to lay down uniform standards for the award of the claims are almost always unliquidated. This is done,
interest on the ground that this fell within the jurisdiction for example, to protect the value of a damages award
of each Chamber and related “to the exercise … of the payable by instalments over time.611
discretion accorded to them in deciding each particular
case”.606 On the issue of principle the tribunal said:
(6) In their more recent practice, national compensation
Claims for interest are part of the compensation sought and do not commissions and tribunals have also generally allowed
constitute a separate cause of action requiring their own independ- for interest in assessing compensation. However in certain
ent jurisdictional grant. This Tribunal is required by [a]rticle V of the cases of partial lump-sum settlements, claims have been
Claims Settlement Declaration to decide claims “on the basis of respect expressly limited to the amount of the principal loss, on
for law”. In doing so, it has regularly treated interest, where sought, as
forming an integral part of the “claim” which it has a duty to decide. the basis that with a limited fund to be distributed, claims
The Tribunal notes that the Chambers have been consistent in awarding to principal should take priority.612 Some national court
interest as “compensation for damages suffered due to delay in pay- decisions have also dealt with issues of interest under in-
ment”. … Indeed, it is customary for arbitral tribunals to award interest ternational law,613 although more often questions of inter-
as part of an award for damages, notwithstanding the absence of any
express reference to interest in the compromis. Given that the power to est are dealt with as part of the law of the forum.
award interest is inherent in the Tribunal’s authority to decide claims,
the exclusion of such power could only be established by an express (7) Although the trend of international decisions and
provision in the Claims Settlement Declaration. No such provision ex- practice is towards greater availability of interest as an as-
ists. Consequently, the Tribunal concludes that it is clearly within its
power to award interest as compensation for damage suffered.60 pect of full reparation, an injured State has no automatic
entitlement to the payment of interest. The awarding of
The tribunal has awarded interest at a different and slight- interest depends on the circumstances of each case; in
ly lower rate in respect of intergovernmental claims.608 particular, on whether an award of interest is necessary
It has not awarded interest in certain cases, for example in order to ensure full reparation. This approach is com-
where a lump-sum award was considered as reflecting full patible with the tradition of various legal systems as well
compensation, or where other special circumstances per- as the practice of international tribunals.
tained.609
(8) An aspect of the question of interest is the possible
award of compound interest. The general view of courts
(4) Decision 16 of the Governing Council of the United and tribunals has been against the award of compound
Nations Compensation Commission deals with the ques- interest, and this is true even of those tribunals which
tion of interest. It provides: hold claimants to be normally entitled to compensa-
1. Interest will be awarded from the date the loss occurred until tory interest. For example, the Iran-United States Claims
the date of payment, at a rate sufficient to compensate successful claim- Tribunal has consistently denied claims for compound
ants for the loss of use of the principal amount of the award. interest, including in cases where the claimant suffered
losses through compound interest charges on indebted-
2. The methods of calculation and of payment of interest will be ness associated with the claim. In R.J. Reynolds Tobacco
considered by the Governing Council at the appropriate time.
Co. v. The Government of the Islamic Republic of Iran,
60 See footnote 34 above. The Court accepted the French claim for the tribunal failed to find:
an interest rate of 6 per cent as fair, having regard to “the present finan- any special reasons for departing from international precedents
cial situation of the world and … the conditions prevailing for public which normally do not allow the awarding of compound interest. As
loans”. noted by one authority, “[t]here are few rules within the scope of the
60 In the M/V “Saiga” case (see footnote 515 above), ITLOS award-
ed interest at different rates in respect of different categories of loss 610 Awards of interest, decision of 18 December 1992 (S/
(para. 173). AC.26/1992/16).
606 The Islamic Republic of Iran v. The United States of America, 611 See, e.g., the Velásquez Rodríguez, Compensatory Damages case
Iran-U.S. C.T.R., vol. 16, p. 285, at p. 290 (1987). Aldrich, op. cit. (footnote 516 above), para. 57. See also Papamichalopoulos (foot-
(see footnote 357 above), pp. 475–476, points out that the practice of note 515 above), para. 39, where interest was payable only in respect of
the three Chambers has not been entirely uniform. the pecuniary damage awarded. See further D. Shelton, op. cit. (foot-
60 The Islamic Republic of Iran v. The United States of America note 521 above), pp. 270–272.
(see footnote 606 above), pp. 289–290. 61 See, e.g., the Foreign Compensation (People’s Republic of China),
60 See C. N. Brower and J. D. Brueschke, op. cit. (footnote 520 Order, Statutory Instrument No. 2201 (1987) (London, HM Stationery
above), pp. 626–627, with references to the cases. The rate adopted was Office), para. 10, giving effect to the settlement Agreement between the
10 per cent, as compared with 12 per cent for commercial claims. United Kingdom and China (footnote 551 above).
609 See the detailed analysis of Chamber Three in McCollough and 61 See, e.g., McKesson Corporation v. The Islamic Republic of
Company, Inc. v. Ministry of Post, Telegraph and Telephone, Iran-U.S. Iran, United States District Court for the District of Columbia, 116 F,
C.T.R., vol. 11, p. 3, at pp. 26–31 (1986). Supp. 2d 13 (2000).
332
Annex 13
subject of damages in international law that are better settled than the is no uniform approach, internationally, to questions of
one that compound interest is not allowable” … Even though the term quantification and assessment of amounts of interest pay-
“all sums” could be construed to include interest and thereby to allow
compound interest, the Tribunal, due to the ambiguity of the language, able.620 In practice, the circumstances of each case and the
interprets the clause in the light of the international rule just stated, and conduct of the parties strongly affect the outcome. There
thus excludes compound interest. 61 is wisdom in the Iran-United States Claims Tribunal’s ob-
servation that such matters, if the parties cannot resolve
Consistent with this approach, the tribunal has gone them, must be left “to the exercise … of the discretion ac-
behind contractual provisions appearing to provide for corded to [individual tribunals] in deciding each particu-
compound interest, in order to prevent the claimant gain- lar case”.621 On the other hand, the present unsettled state
ing a profit “wholly out of proportion to the possible loss of practice makes a general provision on the calculation of
that [it] might have incurred by not having the amounts interest useful. Accordingly, article 38 indicates that the
due at its disposal”.615 The preponderance of authority date from which interest is to be calculated is the date
thus continues to support the view expressed by Arbitrator when the principal sum should have been paid. Interest
Huber in the British Claims in the Spanish Zone of runs from that date until the date the obligation to pay is
Morocco case: fulfilled. The interest rate and mode of calculation are to
the arbitral case law in matters involving compensation of one State for be set so as to achieve the result of providing full repara-
another for damages suffered by the nationals of one within the territory tion for the injury suffered as a result of the internation-
of the other … is unanimous … in disallowing compound interest. In ally wrongful act.
these circumstances, very strong and quite specific arguments would be
called for to grant such interest.616
(11) Where a sum for loss of profits is included as part
The same is true for compound interest in respect of State- of the compensation for the injury caused by a wrong-
to-State claims. ful act, an award of interest will be inappropriate if the
injured State would thereby obtain double recovery. A
(9) Nonetheless, several authors have argued for a re- capital sum cannot be earning interest and notionally
consideration of this principle, on the ground that “com- employed in earning profits at one and the same time.
pound interest reasonably incurred by the injured party However, interest may be due on the profits which would
should be recoverable as an item of damage”.617 This have been earned but which have been withheld from the
view has also been supported by arbitral tribunals in some original owner.
cases.618 But given the present state of international law,
it cannot be said that an injured State has any entitlement (12) Article 38 does not deal with post-judgement or
to compound interest, in the absence of special circum- moratory interest. It is only concerned with interest that
stances which justify some element of compounding as an goes to make up the amount that a court or tribunal should
aspect of full reparation. award, i.e. compensatory interest. The power of a court or
tribunal to award post-judgement interest is a matter of its
(10) The actual calculation of interest on any principal procedure.
sum payable by way of reparation raises a complex of is-
sues concerning the starting date (date of breach,619 date
on which payment should have been made, date of claim Article 39. Contribution to the injury
or demand), the terminal date (date of settlement agree-
ment or award, date of actual payment) as well as the ap- In the determination of reparation, account shall
plicable interest rate (rate current in the respondent State, be taken of the contribution to the injury by wilful or
in the applicant State, international lending rates). There negligent action or omission of the injured State or
any person or entity in relation to whom reparation is
61 Iran-U.S. C.T.R., vol. 7, p. 181, at pp. 191–192 (1984), citing sought.
Whiteman, Damages in International Law, vol. III (see footnote 568
above), p. 1997.
61 Anaconda-Iran, Inc. v. The Government of the Islamic Republic Commentary
of Iran, Iran-U.S. C.T.R., vol. 13, p. 199, at p. 235 (1986). See also
Aldrich, op. cit. (footnote 357 above), pp. 477–478.
616 British Claims in the Spanish Zone of Morocco (see footnote 44
(1) Article 39 deals with the situation where damage
above), p. 650. Cf. the Aminoil arbitration (footnote 496 above), where has been caused by an internationally wrongful act of a
the interest awarded was compounded for a period without any reason State, which is accordingly responsible for the damage in
being given. This accounted for more than half of the total final award accordance with articles 1 and 28, but where the injured
(p. 613, para. 178 (5)). State, or the individual victim of the breach, has materially
61 F. A. Mann, “Compound interest as an item of damage in interna-
tional law”, Further Studies in International Law (Oxford, Clarendon 60 See, e.g., J. Y. Gotanda, Supplemental Damages in Private In-
Press, 1990), p. 377, at p. 383. ternational Law (The Hague, Kluwer, 1998), p. 13. It should be noted
61 See, e.g., Compañía del Desarrollo de Santa Elena, S.A. v. Repub- that a number of Islamic countries, influenced by the sharia, prohibit
lic of Costa Rica, case No. ARB/96/1, ICSID Reports (Cambridge, Gro- payment of interest under their own law or even under their constitution.
tius, 2002), vol. 5, final award (17 February 2000), paras. 103–105. However, they have developed alternatives to interest in the commer-
619 Using the date of the breach as the starting date for calculation of cial and international context. For example, payment of interest is pro-
the interest term is problematic as there may be difficulties in determin- hibited by the Iranian Constitution, articles 43 and 49, but the Guard-
ing that date, and many legal systems require a demand for payment by ian Council has held that this injunction does not apply to “foreign
the claimant before interest will run. The date of formal demand was governments, institutions, companies and persons, who, according to
taken as the relevant date in the Russian Indemnity case (see footnote their own principles of faith, do not consider [interest] as being prohib-
354 above), p. 442, by analogy from the general position in European ited” (ibid., pp. 38–40, with references).
legal systems. In any event, failure to make a timely claim for payment 61 The Islamic Republic of Iran v. The United States of America
is relevant in deciding whether to allow interest. (Case No. A-19) (see footnote 606 above).
333
Annex 13
contributed to the damage by some wilful or negligent act omission is not qualified, e.g. by a requirement that the
or omission. Its focus is on situations which in national negligence should have reached the level of being “seri-
law systems are referred to as “contributory negligence”, ous” or “gross”, the relevance of any negligence to repara-
“comparative fault”, “faute de la victime”, etc.622 tion will depend upon the degree to which it has contrib-
uted to the damage as well as the other circumstances of
(2) Article 39 recognizes that the conduct of the injured the case.627 The phrase “account shall be taken” indicates
State, or of any person or entity in relation to whom repa- that the article deals with factors that are capable of af-
ration is sought, should be taken into account in assessing fecting the form or reducing the amount of reparation in
the form and extent of reparation. This is consonant with an appropriate case.
the principle that full reparation is due for the injury—but
nothing more—arising in consequence of the internation- (6) The wilful or negligent action or omission which
ally wrongful act. It is also consistent with fairness as contributes to the damage may be that of the injured State
between the responsible State and the victim of the or “any person or entity in relation to whom reparation is
breach. sought”. This phrase is intended to cover not only the situ-
ation where a State claims on behalf of one of its nationals
(3) In the LaGrand case, ICJ recognized that the con-
in the field of diplomatic protection, but also any other
duct of the claimant State could be relevant in determin-
situation in which one State invokes the responsibility of
ing the form and amount of reparation. There, Germany
another State in relation to conduct primarily affecting
had delayed in asserting that there had been a breach and
some third party. Under articles 42 and 48, a number of
in instituting proceedings. The Court noted that “Germa-
different situations can arise where this may be so. The
ny may be criticized for the manner in which these pro-
underlying idea is that the position of the State seeking
ceedings were filed and for their timing”, and stated that
reparation should not be more favourable, so far as repara-
it would have taken this factor, among others, into account
tion in the interests of another is concerned, than it would
“had Germany’s submission included a claim for indem-
be if the person or entity in relation to whom reparation is
nification”.623
sought were to bring a claim individually.
(4) The relevance of the injured State’s contribution to
the damage in determining the appropriate reparation is
widely recognized in the literature624 and in State prac- Chapter iii
tice.625 While questions of an injured State’s contribu-
tion to the damage arise most frequently in the context of seriOus breaChes Of ObligatiOns under
compensation, the principle may also be relevant to other peremptOry nOrms Of general
forms of reparation. For example, if a State-owned ship is internatiOnal law
unlawfully detained by another State and while under de-
tention sustains damage attributable to the negligence of
the captain, the responsible State may be required merely Commentary
to return the ship in its damaged condition.
(1) Chapter III of Part Two is entitled “Serious breaches
(5) Not every action or omission which contributes to of obligations under peremptory norms of general inter-
the damage suffered is relevant for this purpose. Rather, national law”. It sets out certain consequences of spe-
article 39 allows to be taken into account only those ac- cific types of breaches of international law, identified by
tions or omissions which can be considered as wilful or reference to two criteria: first, they involve breaches of
negligent, i.e. which manifest a lack of due care on the obligations under peremptory norms of general interna-
part of the victim of the breach for his or her own prop- tional law; and secondly, the breaches concerned are in
erty or rights.626 While the notion of a negligent action or themselves serious, having regard to their scale or char-
acter. Chapter III contains two articles, the first defining
6 See C. von Bar, op. cit. (footnote 315 above), pp. 544–569. its scope of application (art. 40), the second spelling out
6 LaGrand, Judgment (see footnote 119 above), at p. 487, para. 57, the legal consequences entailed by the breaches coming
and p. 508, para. 116. For the relevance of delay in terms of loss of
the right to invoke responsibility, see article 45, subparagraph (b), and within the scope of the chapter (art. 41).
commentary.
6 See, e.g., B. Graefrath, “Responsibility and damages caused:
(2) Whether a qualitative distinction should be recog-
relationship between responsibility and damages” (footnote 454 above) nized between different breaches of international law
and B. Bollecker-Stern, op. cit. (footnote 454 above), pp. 265–300.
6 In the Delagoa Bay Railway case (see footnote 561 above), the ar-
has been the subject of a major debate.628 The issue was
bitrators noted that: “[a]ll the circumstances that can be adduced against
underscored by ICJ in the Barcelona Traction case, when
the concessionaire company and for the Portuguese Government miti- it said that:
gate the latter’s liability and warrant ... a reduction in reparation.” In
S.S. “Wimbledon” (see footnote 34 above), p. 31, a question arose as 6 It is possible to envisage situations where the injury in question
to whether there had been any contribution to the injury suffered as a is entirely attributable to the conduct of the victim and not at all to that
result of the ship harbouring at Kiel for some time, following refusal of the “responsible” State. Such situations are covered by the general
of passage through the Kiel Canal, before taking an alternative course. requirement of proximate cause referred to in article 31, rather than by
PCIJ implicitly acknowledged that the captain’s conduct could affect article 39. On questions of mitigation of damage, see paragraph (11) of
the amount of compensation payable, although it held that the captain the commentary to article 31.
had acted reasonably in the circumstances. For other examples, see 6 For full bibliographies, see M. Spinedi, “Crimes of State: bib-
Gray, op. cit. (footnote 432 above), p. 23. liography”, International Crimes of State, J. H. H. Weiler, A. Cassese
66 This terminology is drawn from article VI, paragraph 1, of the and M. Spinedi, eds. (Berlin, De Gruyter, 1989), pp. 339–353; and
Convention on International Liability for Damage Caused by Space N. H. B. Jørgensen, The Responsibility of States for International
Objects. Crimes (Oxford University Press, 2000) pp. 299–314.
334
Annex 13
an essential distinction should be drawn between the obligations of a of damages is essentially compensatory.634 Overall, it
State towards the international community as a whole, and those arising remains the case, as the International Military Tribunal
vis-à-vis another State in the field of diplomatic protection. By their
very nature the former are the concern of all States. In view of the said in 1946, that “[c]rimes against international law are
importance of the rights involved, all States can be held to have a legal committed by men, not by abstract entities, and only by
interest in their protection; they are obligations erga omnes.69 punishing individuals who commit such crimes can the
provisions of international law be enforced”.635
The Court was there concerned to contrast the position
of an injured State in the context of diplomatic protection
with the position of all States in respect of the breach of (6) In line with this approach, despite the trial and con-
an obligation towards the international community as a viction by the Nuremberg and Tokyo Military Tribunals
whole. Although no such obligation was at stake in that of individual government officials for criminal acts com-
case, the Court’s statement clearly indicates that for the mitted in their official capacity, neither Germany nor
purposes of State responsibility certain obligations are Japan were treated as “criminal” by the instruments cre-
owed to the international community as a whole, and that ating these tribunals.636 As to more recent international
by reason of “the importance of the rights involved” all practice, a similar approach underlies the establishment
States have a legal interest in their protection. of the ad hoc tribunals for Yugoslavia and Rwanda by
the Security Council. Both tribunals are concerned only
with the prosecution of individuals.637 In its decision re-
(3) On a number of subsequent occasions the Court has
lating to a subpoena duces tecum in the Blaskić case, the
taken the opportunity to affirm the notion of obligations
Appeals Chamber of the International Tribunal for the
to the international community as a whole, although it
Former Yugoslavia stated that “[u]nder present interna-
has been cautious in applying it. In the East Timor case,
tional law it is clear that States, by definition, cannot be
the Court said that “Portugal’s assertion that the right
the subject of criminal sanctions akin to those provided
of peoples to self-determination, as it evolved from the
for in national criminal systems”.638 The Rome Statute
Charter and from United Nations practice, has an erga
of the International Criminal Court likewise establishes
omnes character, is irreproachable”.630 At the preliminary
jurisdiction over the “most serious crimes of concern to
objections stage of the Application of the Convention on
the international community as a whole” (preamble), but
the Prevention and Punishment of the Crime of Genocide
limits this jurisdiction to “natural persons” (art. 25, para.
case, it stated that “the rights and obligations enshrined by
1). The same article specifies that no provision of the Stat-
the [Genocide] Convention are rights and obligations erga
ute “relating to individual criminal responsibility shall af-
omnes”:631 this finding contributed to its conclusion that
fect the responsibility of States under international law”
its temporal jurisdiction over the claim was not limited
(para. 4).639
to the time after which the parties became bound by the
Convention.
(7) Accordingly, the present articles do not recognize
(4) A closely related development is the recognition of the existence of any distinction between State “crimes”
the concept of peremptory norms of international law in and “delicts” for the purposes of Part One. On the other
articles 53 and 64 of the 1969 Vienna Convention. These hand, it is necessary for the articles to reflect that there are
provisions recognize the existence of substantive norms certain consequences flowing from the basic concepts of
of a fundamental character, such that no derogation from peremptory norms of general international law and obli-
them is permitted even by treaty.632 gations to the international community as a whole within
the field of State responsibility. Whether or not peremp-
(5) From the first it was recognized that these develop- tory norms of general international law and obligations to
ments had implications for the secondary rules of State the international community as a whole are aspects of a
responsibility which would need to be reflected in some single basic idea, there is at the very least substantial over-
way in the articles. Initially, it was thought this could be lap between them. The examples which ICJ has given of
done by reference to a category of “international crimes 6 See paragraph (4) of the commentary to article 36.
of State”, which would be contrasted with all other cas- 6 International Military Tribunal (Nuremberg), judgement of
es of internationally wrongful acts (“international de- 1 October 1946, reprinted in AJIL (see footnote 321 above), p. 221.
licts”).633 There has been, however, no development of 66 This despite the fact that the London Charter of 1945 specifi-
penal consequences for States of breaches of these fun- cally provided for the condemnation of a “group or organization” as
damental norms. For example, the award of punitive dam- “criminal”; see Charter of the International Military Tribunal, Agree-
ages is not recognized in international law even in relation ment for the Prosecution and Punishment of Major War Criminals
of the European Axis, annex, United Nations, Treaty Series, vol. 82,
to serious breaches of obligations arising under peremp- No. 251, p. 279, arts. 9 and 10.
tory norms. In accordance with article 34, the function 6 See, respectively, articles 1 and 6 of the statute of the Internation-
69 Barcelona Traction (see footnote 25 above), p. 32, para. 33.

al Tribunal for the Former Yugoslavia; and articles 1 and 7 of the statute
of the International Tribunal for Rwanda (footnote 257 above).
See M. Ragazzi, The Concept of International Obligations Erga Omnes 638 Prosecutor v. Blaskić, International Tribunal for the Former
(Oxford, Clarendon Press, 1997).
60 See footnote 54 above. Yugoslavia, Case IT-95-14-AR 108 bis, ILR, vol. 110, p. 688, at p. 698,
61 Application of the Convention on the Prevention and Punishment
para. 25 (1997). Cf. Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide, Preliminary Objec-
of the Crime of Genocide, Preliminary Objections (see footnote 54 tions (footnote 54 above), in which neither of the parties treated the
above), p. 616, para. 31. proceedings as being criminal in character. See also paragraph (6) of the
6 See article 26 and commentary. commentary to article 12.
6 See Yearbook … 1976, vol. II (Part Two), pp. 95–122, 69 See also article 10: “Nothing in this Part shall be interpreted as
especially paras. (6)–(34). See also paragraph (5) of the commentary limiting or prejudicing in any way existing or developing rules of inter-
to article 12. national law for purposes other than this Statute.”
335
Annex 13
obligations towards the international community as a the intensity of the breach, which must have been serious
whole640 all concern obligations which, it is generally ac- in nature. Chapter III only applies to those violations of
cepted, arise under peremptory norms of general interna- international law that fulfil both criteria.
tional law. Likewise the examples of peremptory norms
given by the Commission in its commentary to what be- (2) The first criterion relates to the character of the obli-
came article 53 of the 1969 Vienna Convention641 involve gation breached. In order to give rise to the application of
obligations to the international community as a whole. But this chapter, a breach must concern an obligation arising
there is at least a difference in emphasis. While peremp- under a peremptory norm of general international law. In
tory norms of general international law focus on the scope accordance with article 53 of the 1969 Vienna Conven-
and priority to be given to a certain number of fundamen- tion, a peremptory norm of general international law is
tal obligations, the focus of obligations to the international one which is:
community as a whole is essentially on the legal interest
of all States in compliance—i.e. in terms of the present ar- accepted and recognized by the international community of States as a
ticles, in being entitled to invoke the responsibility of any whole as a norm from which no derogation is permitted and which can
State in breach. Consistently with the difference in their be modified only by a subsequent norm of general international law
focus, it is appropriate to reflect the consequences of the having the same character.
two concepts in two distinct ways. First, serious breaches
of obligations arising under peremptory norms of general The concept of peremptory norms of general international
international law can attract additional consequences, not law is recognized in international practice, in the jurispru-
only for the responsible State but for all other States. Sec- dence of international and national courts and tribunals
ondly, all States are entitled to invoke responsibility for and in legal doctrine.642
breaches of obligations to the international community as
a whole. The first of these propositions is the concern of (3) It is not appropriate to set out examples of the per-
the present chapter; the second is dealt with in article 48. emptory norms referred to in the text of article 40 itself,
any more than it was in the text of article 53 of the 1969
Vienna Convention. The obligations referred to in article
Article 40. Application of this chapter 40 arise from those substantive rules of conduct that pro-
hibit what has come to be seen as intolerable because of
1. This chapter applies to the international re- the threat it presents to the survival of States and their
sponsibility which is entailed by a serious breach by peoples and the most basic human values.
a State of an obligation arising under a peremptory
norm of general international law.
(4) Among these prohibitions, it is generally agreed that
the prohibition of aggression is to be regarded as peremp-
2. A breach of such an obligation is serious if it in- tory. This is supported, for example, by the Commission’s
volves a gross or systematic failure by the responsible commentary to what was to become article 53,643 uncon-
State to fulfil the obligation. tradicted statements by Governments in the course of the
Vienna Conference on the Law of Treaties,644 the sub-
missions of both parties in the Military and Paramilitary
Commentary Activities in and against Nicaragua case and the Court’s
own position in that case.645 There also seems to be wide-
(1) Article 40 serves to define the scope of the breaches spread agreement with other examples listed in the Com-
covered by the chapter. It establishes two criteria in order mission’s commentary to article 53: viz. the prohibitions
to distinguish “serious breaches of obligations under per- against slavery and the slave trade, genocide, and racial
emptory norms of general international law” from other discrimination and apartheid. These practices have been
types of breaches. The first relates to the character of the prohibited in widely ratified international treaties and
obligation breached, which must derive from a perempto- conventions admitting of no exception. There was gen-
ry norm of general international law. The second qualifies eral agreement among Governments as to the peremptory
character of these prohibitions at the Vienna Conference.
60 According to ICJ, obligations erga omnes “derive, for example, in
As to the peremptory character of the prohibition against
contemporary international law, from the outlawing of acts of aggres-
sion, and of genocide, as also from the principles and rules concerning 6 For further discussion of the requirements for identification of a
the basic rights of the human person, including protection from slavery
norm as peremptory, see paragraph (5) of the commentary to article 26,
and racial discrimination”: Barcelona Traction (see footnote 25 above),
at p. 32, para. 34. See also East Timor (footnote 54 above); Legality of with selected references to the case law and literature.
6 Yearbook … 1966, vol. II, pp. 247–249.
the Threat or Use of Nuclear Weapons (ibid.); and Application of the
Convention on the Prevention and Punishment of the Crime of Geno- 6 In the course of the conference, a number of Governments
cide, Preliminary Objections (ibid.). characterized as peremptory the prohibitions against aggression and
61 The Commission gave the following examples of treaties which the illegal use of force: see Official Records of the United Nations
would violate the article due to conflict with a peremptory norm of Conference on the Law of Treaties, First Session, Vienna, 26 March to
general international law, or a rule of jus cogens: “(a) a treaty con- 24 May 1968, summary records of the plenary meeting and of the meet-
templating an unlawful use of force contrary to the principles of the ings of the Committee of the Whole (United Nations publication, Sales
Charter, (b) a treaty contemplating the performance of any other act No. E.68.V.7), 52nd meeting, paras. 3, 31 and 43; 53rd meeting,
criminal under international law, and (c) a treaty contemplating or paras. 4, 9, 15, 16, 35, 48, 59 and 69; 54th meeting, paras. 9, 41, 46
conniving at the commission of such acts, such as trade in slaves, piracy and 55; 55th meeting, paras. 31 and 42; and 56th meeting, paras. 6, 20,
or genocide, in the suppression of which every State is called upon to 29 and 51.
co-operate … treaties violating human rights, the equality of States or 6 Military and Paramilitary Activities in and against Nicaragua
the principle of self-determination were mentioned as other possible (see footnote 36 above), pp. 100–101, para. 190; see also the separate
examples”, Yearbook … 1966, vol. II, p. 248. opinion of magistrate Nagendra Singh (president), p. 153.
336
Annex 13
genocide, this is supported by a number of decisions by breach of peremptory norms can be envisaged, and it is
national and international courts.646 necessary to limit the scope of this chapter to the more
serious or systematic breaches. Some such limitation is
(5) Although not specifically listed in the Commis- supported by State practice. For example, when reacting
sion’s commentary to article 53 of the 1969 Vienna Con- against breaches of international law, States have often
vention, the peremptory character of certain other norms stressed their systematic, gross or egregious nature. Simi-
seems also to be generally accepted. This applies to the larly, international complaint procedures, for example in
prohibition against torture as defined in article 1 of the the field of human rights, attach different consequences to
Convention against Torture and Other Cruel, Inhuman systematic breaches, e.g. in terms of the non-applicability
or Degrading Treatment or Punishment. The peremptory of the rule of exhaustion of local remedies.650
character of this prohibition has been confirmed by deci-
sions of international and national bodies.647 In the light (8) To be regarded as systematic, a violation would have
of the description by ICJ of the basic rules of international to be carried out in an organized and deliberate way. In
humanitarian law applicable in armed conflict as “intrans- contrast, the term “gross” refers to the intensity of the
gressible” in character, it would also seem justified to treat violation or its effects; it denotes violations of a flagrant
these as peremptory.648 Finally, the obligation to respect nature, amounting to a direct and outright assault on the
the right of self-determination deserves to be mentioned. values protected by the rule. The terms are not of course
As the Court noted in the East Timor case, “[t]he principle mutually exclusive; serious breaches will usually be both
of self-determination ... is one of the essential principles systematic and gross. Factors which may establish the se-
of contemporary international law”, which gives rise to an riousness of a violation would include the intent to violate
obligation to the international community as a whole to the norm; the scope and number of individual violations;
permit and respect its exercise.649 and the gravity of their consequences for the victims.
It must also be borne in mind that some of the peremp-
tory norms in question, most notably the prohibitions of
(6) It should be stressed that the examples given above aggression and genocide, by their very nature require an
may not be exhaustive. In addition, article 64 of the 1969 intentional violation on a large scale.651
Vienna Convention contemplates that new peremptory
norms of general international law may come into exist- (9) Article 40 does not lay down any procedure for de-
ence through the processes of acceptance and recogni- termining whether or not a serious breach has been com-
tion by the international community of States as a whole, mitted. It is not the function of the articles to establish
as referred to in article 53. The examples given here are new institutional procedures for dealing with individual
thus without prejudice to existing or developing rules of cases, whether they arise under chapter III of Part Two or
international law which fulfil the criteria for peremptory otherwise. Moreover, the serious breaches dealt with in
norms under article 53. this chapter are likely to be addressed by the competent
international organizations, including the Security Coun-
(7) Apart from its limited scope in terms of the com- cil and the General Assembly. In the case of aggression,
paratively small number of norms which qualify as per- the Security Council is given a specific role by the Char-
emptory, article 40 applies a further limitation for the ter of the United Nations.
purposes of the chapter, viz. that the breach should itself
have been “serious”. A “serious” breach is defined in
paragraph 2 as one which involves “a gross or systematic Article 41. Particular consequences of a serious breach
failure by the responsible State to fulfil the obligation” of an obligation under this chapter
in question. The word “serious” signifies that a certain
order of magnitude of violation is necessary in order not 1. States shall cooperate to bring to an end through
to trivialize the breach and it is not intended to suggest lawful means any serious breach within the meaning of
that any violation of these obligations is not serious or is article 0.
somehow excusable. But relatively less serious cases of 60 See the Ireland v. the United Kingdom case (footnote 236 above),
66 para. 159; cf., e.g., the procedure established under Economic and
See, for example, ICJ in Application of the Convention on the Social Council resolution 1503 (XLVIII), which requires a “consistent
Prevention and Punishment of the Crime of Genocide, Provisional pattern of gross and reliably attested violations of human rights”.
Measures (footnote 412 above), pp. 439–440; Counter-Claims (foot- 61 At its twenty-second session, the Commission proposed the
note 413 above), p. 243; and the District Court of Jerusalem in the
Attorney-General of the Government of Israel v. Adolf Eichmann case, following examples as cases denominated as “international crimes”:
ILR, vol. 36, p. 5 (1961). “(a) a serious breach of an international obligation of essential
6 Cf. the United States Court of Appeals, Ninth Circuit, in Sider- importance for the maintenance of international peace and security,
man de Blake and Others v. The Republic of Argentina and Others, ILR, such as that prohibiting aggression;
vol. 103, p. 455, at p. 471 (1992); the United Kingdom Court of Ap- “(b) a serious breach of an international obligation of essential
peal in Al Adsani v. Government of Kuwait and Others, ILR, vol. 107, importance for safeguarding the right of self-determination of peo-
p. 536, at pp. 540–541 (1996); and the United Kingdom House of Lords ples, such as that prohibiting the establishment or maintenance by
in Pinochet (footnote 415 above), pp. 841 and 881. Cf. the United States force of colonial domination;
Court of Appeals, Second Circuit, in Filartiga v. Pena-Irala, ILR, “(c) a serious breach on a widespread scale of an international
vol. 77, p. 169, at pp. 177–179 (1980). obligation of essential importance for safeguarding the human be-
6 Legality of the Threat or Use of Nuclear Weapons (see footnote ing, such as those prohibiting slavery, genocide and apartheid;
54 above), p. 257, para. 79. “(d) a serious breach of an international obligation of essential
69 East Timor (ibid.). See Declaration on Principles of International importance for the safeguarding and preservation of the human
Law concerning Friendly Relations and Cooperation among States in environment, such as those prohibiting massive pollution of the
accordance with the Charter of the United Nations, General Assembly atmosphere or of the seas.”
resolution 2625 (XXV), annex, fifth principle. Yearbook … 1976, vol. II (Part Two), pp. 95–96.
337
Annex 13
2. No State shall recognize as lawful a situation article 40.652 The obligation applies to “situations” created
created by a serious breach within the meaning of ar- by these breaches, such as, for example, attempted acqui-
ticle 0, nor render aid or assistance in maintaining sition of sovereignty over territory through the denial of
that situation. the right of self-determination of peoples. It not only re-
fers to the formal recognition of these situations, but also
3. This article is without prejudice to the other prohibits acts which would imply such recognition.
consequences referred to in this Part and to such fur-
ther consequences that a breach to which this chapter (6) The existence of an obligation of non-recognition in
applies may entail under international law. response to serious breaches of obligations arising under
peremptory norms already finds support in international
practice and in decisions of ICJ. The principle that territo-
Commentary rial acquisitions brought about by the use of force are not
valid and must not be recognized found a clear expres-
(1) Article 41 sets out the particular consequences of sion during the Manchurian crisis of 1931–1932, when
breaches of the kind and gravity referred to in article 40. It the Secretary of State, Henry Stimson, declared that the
consists of three paragraphs. The first two prescribe spe- United States of America—joined by a large majority of
cial legal obligations of States faced with the commission members of the League of Nations—would not:
of “serious breaches” in the sense of article 40, the third admit the legality of any situation de facto nor ... recognize any treaty or
takes the form of a saving clause. agreement entered into between those Governments, or agents thereof,
which may impair the ... sovereignty, the independence or the territorial
and administrative integrity of the Republic of China, ... [nor] recog-
(2) Pursuant to paragraph 1 of article 41, States are un- nize any situation, treaty or agreement which may be brought about by
der a positive duty to cooperate in order to bring to an means contrary to the covenants and obligations of the Pact of Paris of
end serious breaches in the sense of article 40. Because August 27, 1928.6
of the diversity of circumstances which could possibly be
involved, the provision does not prescribe in detail what The Declaration on Principles of International Law con-
form this cooperation should take. Cooperation could be cerning Friendly Relations and Cooperation among States
organized in the framework of a competent international in accordance with the Charter of the United Nations af-
organization, in particular the United Nations. However, firms this principle by stating unequivocally that States
paragraph 1 also envisages the possibility of non-institu- shall not recognize as legal any acquisition of territory
tionalized cooperation. brought about by the use of force.654 As ICJ held in Mili-
tary and Paramilitary Activities in and against Nicara-
gua, the unanimous consent of States to this declaration
(3) Neither does paragraph 1 prescribe what measures “may be understood as an acceptance of the validity of
States should take in order to bring to an end serious the rule or set of rules declared by the resolution by them-
breaches in the sense of article 40. Such cooperation must selves”.655
be through lawful means, the choice of which will depend
on the circumstances of the given situation. It is, howev- (7) An example of the practice of non-recognition of
er, made clear that the obligation to cooperate applies to acts in breach of peremptory norms is provided by the
States whether or not they are individually affected by the reaction of the Security Council to the Iraqi invasion
serious breach. What is called for in the face of serious of Kuwait in 1990. Following the Iraqi declaration of a
breaches is a joint and coordinated effort by all States to “comprehensive and eternal merger” with Kuwait, the Se-
counteract the effects of these breaches. It may be open curity Council, in resolution 662 (1990) of 9 August 1990,
to question whether general international law at present decided that the annexation had “no legal validity, and is
prescribes a positive duty of cooperation, and paragraph 1 considered null and void”, and called upon all States, in-
in that respect may reflect the progressive development of ternational organizations and specialized agencies not to
international law. But in fact such cooperation, especially recognize that annexation and to refrain from any action
in the framework of international organizations, is carried or dealing that might be interpreted as a recognition of it,
out already in response to the gravest breaches of inter- whether direct or indirect. In fact, no State recognized the
national law and it is often the only way of providing an
effective remedy. Paragraph 1 seeks to strengthen existing 6 This has been described as “an essential legal weapon in the
mechanisms of cooperation, on the basis that all States are fight against grave breaches of the basic rules of international law”
called upon to make an appropriate response to the seri- (C. Tomuschat, “International crimes by States: an endangered
ous breaches referred to in article 40. species?”, International Law: Theory and Practice — Essays in Hon-
our of Eric Suy, K. Wellens, ed. (The Hague, Martinus Nijhoff, 1998),
p. 253, at p. 259.
(4) Pursuant to paragraph 2 of article 41, States are un- 6 Secretary of State’s note to the Chinese and Japanese Govern-
der a duty of abstention, which comprises two obligations, ments, in Hackworth, Digest of International Law (Washington,
first, not to recognize as lawful situations created by seri- D.C., United States Government Printing Office, 1940), vol. I, p. 334;
endorsed by Assembly resolutions of 11 March 1932, League of
ous breaches in the sense of article 40 and, secondly, not Nations Official Journal, March 1932, Special Supplement No. 101,
to render aid or assistance in maintaining that situation. p. 87. For a review of earlier practice relating to collective non-
recognition, see J. Dugard, Recognition and the United Nations
(Cambridge, Grotius, 1987), pp. 24–27.
(5) The first of these two obligations refers to the ob- 6 General Assembly resolution 2625 (XXV), annex, first
ligation of collective non-recognition by the interna- principle.
tional community as a whole of the legality of situations 6 Military and Paramilitary Activities in and against Nicaragua
resulting directly from serious breaches in the sense of (see footnote 36 above), at p. 100, para. 188.
338
Annex 13
legality of the purported annexation, the effects of which Both the principle of non-recognition and this qualifica-
were subsequently reversed. tion to it have been applied, for example, by the European
Court of Human Rights.661
(8) As regards the denial by a State of the right of self-
determination of peoples, the advisory opinion of ICJ in (11) The second obligation contained in paragraph 2
the Namibia case is similarly clear in calling for a non- prohibits States from rendering aid or assistance in
recognition of the situation.656 The same obligations are maintaining the situation created by a serious breach in
reflected in the resolutions of the Security Council and the sense of article 40. This goes beyond the provisions
General Assembly concerning the situation in Rhode- dealing with aid or assistance in the commission of an
sia657 and the Bantustans in South Africa.658 These ex- internationally wrongful act, which are covered by article
amples reflect the principle that where a serious breach 16. It deals with conduct “after the fact” which assists the
in the sense of article 40 has resulted in a situation that responsible State in maintaining a situation “opposable to
might otherwise call for recognition, this has nonetheless all States in the sense of barring erga omnes the legality
to be withheld. Collective non-recognition would seem to of a situation which is maintained in violation of interna-
be a prerequisite for any concerted community response tional law”.662 It extends beyond the commission of the
against such breaches and marks the minimum necessary serious breach itself to the maintenance of the situation
response by States to the serious breaches referred to in created by that breach, and it applies whether or not the
article 40. breach itself is a continuing one. As to the elements of
“aid or assistance”, article 41 is to be read in connection
(9) Under article 41, paragraph 2, no State shall recog- with article 16. In particular, the concept of aid or assist-
nize the situation created by the serious breach as lawful. ance in article 16 presupposes that the State has “knowl-
This obligation applies to all States, including the respon- edge of the circumstances of the internationally wrongful
sible State. There have been cases where the responsible act”. There is no need to mention such a requirement in
State has sought to consolidate the situation it has cre- article 41, paragraph 2, as it is hardly conceivable that a
ated by its own “recognition”. Evidently, the responsible State would not have notice of the commission of a seri-
State is under an obligation not to recognize or sustain ous breach by another State.
the unlawful situation arising from the breach. Similar
considerations apply even to the injured State: since the (12) In some respects, the prohibition contained in para-
breach by definition concerns the international commu- graph 2 may be seen as a logical extension of the duty
nity as a whole, waiver or recognition induced from the of non-recognition. However, it has a separate scope of
injured State by the responsible State cannot preclude the application insofar as actions are concerned which would
international community interest in ensuring a just and not imply recognition of the situation created by serious
appropriate settlement. These conclusions are consistent breaches in the sense of article 40. This separate existence
with article 30 on cessation and are reinforced by the per- is confirmed, for example, in the resolutions of the Secu-
emptory character of the norms in question.659 rity Council prohibiting any aid or assistance in maintain-
ing the illegal apartheid regime in South Africa or Portu-
(10) The consequences of the obligation of non-recogni- guese colonial rule.663 Just as in the case of the duty of
tion are, however, not unqualified. In the Namibia advi- non-recognition, these resolutions would seem to express
sory opinion the Court, despite holding that the illegality a general idea applicable to all situations created by seri-
of the situation was opposable erga omnes and could not ous breaches in the sense of article 40.
be recognized as lawful even by States not members of the
United Nations, said that: (13) Pursuant to paragraph 3, article 41 is without
the non-recognition of South Africa’s administration of the Territory prejudice to the other consequences elaborated in Part
should not result in depriving the people of Namibia of any advantages Two and to possible further consequences that a serious
derived from international cooperation. In particular, while official acts breach in the sense of article 40 may entail. The purpose
performed by the Government of South Africa on behalf of or concern-
ing Namibia after the termination of the Mandate are illegal and invalid, of this paragraph is twofold. First, it makes it clear that
this invalidity cannot be extended to those acts, such as, for instance, the a serious breach in the sense of article 40 entails the le-
registration of births, deaths and marriages, the effects of which can be gal consequences stipulated for all breaches in chapters I
ignored only to the detriment of the inhabitants of the Territory.660 and II of Part Two. Consequently, a serious breach in the
66 Namibia case (see footnote 176 above), where the Court held that
sense of article 40 gives rise to an obligation, on behalf of
“the termination of the Mandate and the declaration of the illegality of
the responsible State, to cease the wrongful act, to con-
South Africa’s presence in Namibia are opposable to all States in the tinue performance and, if appropriate, to give guarantees
sense of barring erga omnes the legality of a situation which is main- and assurances of non-repetition. By the same token, it
tained in violation of international law” (p. 56, para. 126). entails a duty to make reparation in conformity with the
6 Cf. Security Council resolution 216 (1965) of 12 November
rules set out in chapter II of this Part. The incidence of
1965.
6 See, e.g., General Assembly resolution 31/6 A of 26 October
these obligations will no doubt be affected by the gravity
1976, endorsed by the Security Council in its resolution 402 (1976) of
of the breach in question, but this is allowed for in the
22 December 1976; Assembly resolutions 32/105 N of 14 December actual language of the relevant articles.
1977 and 34/93 G of 12 December 1979; see also the statements of
21 September 1979 and 15 December 1981 issued by the respective 661 Loizidou, Merits (see footnote 160 above), p. 2216; Cyprus
presidents of the Security Council in reaction to the “creation” of Venda v. Turkey (see footnote 247 above), paras. 89–98.
and Ciskei (S/13549 and S/14794). 66 Namibia case (see footnote 176 above), p. 56, para. 126.
69 See also paragraph (7) of the commentary to article 20 and 66 See, e.g., Security Council resolutions 218 (1965) of 23 No-
paragraph (4) of the commentary to article 45. vember 1965 on the Portuguese colonies, and 418 (1977) of
660 Namibia case (see footnote 176 above), p. 56, para. 125. 4 November 1977 and 569 (1985) of 26 July 1985 on South Africa.
339
Annex 13
(14) Secondly, paragraph 3 allows for such further con- State and with certain modalities of such invocation. The
sequences of a serious breach as may be provided for by rights that other persons or entities may have arising from
international law. This may be done by the individual pri- a breach of an international obligation are preserved by
mary rule, as in the case of the prohibition of aggression. article 33, paragraph 2.
Paragraph 3 accordingly allows that international law may
recognize additional legal consequences flowing from the
commission of a serious breach in the sense of article 40. (2) Central to the invocation of responsibility is the con-
The fact that such further consequences are not expressly cept of the injured State. This is the State whose individ-
referred to in chapter III does not prejudice their recogni- ual right has been denied or impaired by the internation-
tion in present-day international law, or their further de- ally wrongful act or which has otherwise been particu-
velopment. In addition, paragraph 3 reflects the convic- larly affected by that act. This concept is introduced in ar-
tion that the legal regime of serious breaches is itself in ticle 42 and various consequences are drawn from it in
a state of development. By setting out certain basic legal other articles of this chapter. In keeping with the broad
consequences of serious breaches in the sense of article range of international obligations covered by the articles,
40, article 41 does not intend to preclude the future de- it is necessary to recognize that a broader range of States
velopment of a more elaborate regime of consequences may have a legal interest in invoking responsibility and
entailed by such breaches. ensuring compliance with the obligation in question. In-
deed, in certain situations, all States may have such an
interest, even though none of them is individually or
specially affected by the breach.664 This possibility is rec-
ognized in article 48. Articles 42 and 48 are couched in
terms of the entitlement of States to invoke the respon-
part three sibility of another State. They seek to avoid problems
arising from the use of possibly misleading terms such
as “direct” versus “indirect” injury or “objective” versus
the implementatiOn Of the internatiOnal “subjective” rights.
respOnsibility Of a state
(3) Although article 42 is drafted in the singular (“an

Part Three deals with the implementation of State re- injured State”), more than one State may be injured by
sponsibility, i.e. with giving effect to the obligations of an internationally wrongful act and be entitled to invoke
cessation and reparation which arise for a responsible State responsibility as an injured State. This is made clear by
under Part Two by virtue of its commission of an interna- article 46. Nor are articles 42 and 48 mutually exclusive.
tionally wrongful act. Although State responsibility arises Situations may well arise in which one State is “injured”
under international law independently of its invocation by in the sense of article 42, and other States are entitled to
another State, it is still necessary to specify what other invoke responsibility under article 48.
States faced with a breach of an international obligation
may do, what action they may take in order to secure the
performance of the obligations of cessation and repara- (4) Chapter I also deals with a number of related ques-
tion on the part of the responsible State. This, sometimes tions: the requirement of notice if a State wishes to invoke
referred to as the mise-en-oeuvre of State responsibility, the responsibility of another (art. 43), certain aspects of
is the subject matter of Part Three. Part Three consists of the admissibility of claims (art. 44), loss of the right to in-
two chapters. Chapter I deals with the invocation of State voke responsibility (art. 45), and cases where the respon-
responsibility by other States and with certain associated sibility of more than one State may be invoked in relation
questions. Chapter II deals with countermeasures taken in to the same internationally wrongful act (art. 47).
order to induce the responsible State to cease the conduct
in question and to provide reparation.
(5) Reference must also be made to article 55, which
makes clear the residual character of the articles. In addition
to giving rise to international obligations for States, special
Chapter i
rules may also determine which other State or States are
entitled to invoke the international responsibility arising
inVOCatiOn Of the respOnsibility from their breach, and what remedies they may seek. This
Of a state was true, for example, of article 396 of the Treaty of Ver-
sailles, which was the subject of the decision in the S.S.
Commentary “Wimbledon” case.665 It is also true of article 33 of the
European Convention on Human Rights. It will be a matter
(1) Part One of the articles identifies the internationally of interpretation in each case whether such provisions are
wrongful act of a State generally in terms of the breach intended to be exclusive, i.e. to apply as a lex specialis.
of any international obligation of that State. Part Two de-
66 Cf. the statement by ICJ that “all States can be held to have a legal
fines the consequences of internationally wrongful acts in
the field of responsibility as obligations of the responsi- interest” as concerns breaches of obligations erga omnes, Barcelona
Traction (footnote 25 above), p. 32, para. 33, cited in paragraph (2) of
ble State, not as rights of any other State, person or entity. the commentary to chapter III of Part Two.
Part Three is concerned with the implementation of State 66 Four States there invoked the responsibility of Germany, at least
responsibility, i.e. with the entitlement of other States to one of which, Japan, had no specific interest in the voyage of the S.S.
invoke the international responsibility of the responsible “Wimbledon” (see footnote 34 above).
340
Annex 13
Article 42. Invocation of responsibility by a treaty,667 or it must be considered an injured State.

by an injured State The purpose of article 42 is to define this latter category.
A State is entitled as an injured State to invoke

the responsibility of another State if the obligation (3) A State which is injured in the sense of article 42 is
breached is owed to: entitled to resort to all means of redress contemplated in
the articles. It can invoke the appropriate responsibility
(a) that State individually; or pursuant to Part Two. It may also—as is clear from the
(b) a group of States including that State, or the opening phrase of article 49—resort to countermeasures
international community as a whole, and the breach in accordance with the rules laid down in chapter II of
of the obligation: this Part. The situation of an injured State should be dis-
tinguished from that of any other State which may be en-
i(i) specially affects that State; or titled to invoke responsibility, e.g. under article 48 which
(ii) is of such a character as radically to change deals with the entitlement to invoke responsibility in some
the position of all the other States to which shared general interest. This distinction is clarified by the
the obligation is owed with respect to the opening phrase of article 42, “A State is entitled as an
further performance of the obligation. injured State to invoke the responsibility”.
(4) The definition in article 42 is closely modelled on

Commentary article 60 of the 1969 Vienna Convention, although the
scope and purpose of the two provisions are different. Ar-
(1) Article 42 provides that the implementation of State ticle 42 is concerned with any breach of an international
responsibility is in the first place an entitlement of the obligation of whatever character, whereas article 60 is
“injured State”. It defines this term in a relatively narrow concerned with breach of treaties. Moreover, article 60 is
way, drawing a distinction between injury to an individual concerned exclusively with the right of a State party to a
State or possibly a small number of States and the legal treaty to invoke a material breach of that treaty by another
interests of several or all States in certain obligations es- party as grounds for its suspension or termination. It is not
tablished in the collective interest. The latter are dealt with concerned with the question of responsibility for breach
in article 48. of the treaty.668 This is why article 60 is restricted to “ma-
terial” breaches of treaties. Only a material breach justi-
(2) This chapter is expressed in terms of the invocation fies termination or suspension of the treaty, whereas in the
by a State of the responsibility of another State. For this context of State responsibility any breach of a treaty gives
purpose, invocation should be understood as taking meas- rise to responsibility irrespective of its gravity. Despite
ures of a relatively formal character, for example, the rais- these differences, the analogy with article 60 is justified.
ing or presentation of a claim against another State or the Article 60 seeks to identify the States parties to a treaty
commencement of proceedings before an international which are entitled to respond individually and in their own
court or tribunal. A State does not invoke the responsibil- right to a material breach by terminating or suspending it.
ity of another State merely because it criticizes that State In the case of a bilateral treaty, the right can only be that of
for a breach and calls for observance of the obligation, the other State party, but in the case of a multilateral treaty
or even reserves its rights or protests. For the purpose of article 60, paragraph 2, does not allow every other State
these articles, protest as such is not an invocation of re- to terminate or suspend the treaty for material breach. The
sponsibility; it has a variety of forms and purposes and is other State must be specially affected by the breach, or at
not limited to cases involving State responsibility. There least individually affected in that the breach necessarily
is in general no requirement that a State which wishes to undermines or destroys the basis for its own further per-
protest against a breach of international law by another formance of the treaty.
State or remind it of its international responsibilities in
respect of a treaty or other obligation by which they are
both bound should establish any specific title or interest to (5) In parallel with the cases envisaged in article 60 of
do so. Such informal diplomatic contacts do not amount the 1969 Vienna Convention, three cases are identified in
to the invocation of responsibility unless and until they article 42. In the first case, in order to invoke the responsi-
involve specific claims by the State concerned, such as for bility of another State as an injured State, a State must have
compensation for a breach affecting it, or specific action an individual right to the performance of an obligation, in
such as the filing of an application before a competent in- the way that a State party to a bilateral treaty has vis-à-vis
ternational tribunal,666 or even the taking of countermeas- the other State party (subparagraph (a)). Secondly, a State
ures. In order to take such steps, i.e. to invoke respon- may be specially affected by the breach of an obligation
sibility in the sense of the articles, some more specific to which it is a party, even though it cannot be said that
entitlement is needed. In particular, for a State to invoke the obligation is owed to it individually (subparagraph (b)
responsibility on its own account it should have a specific (i)). Thirdly, it may be the case that performance of the
right to do so, e.g. a right of action specifically conferred obligation by the responsible State is a necessary condi-
666 An analogous distinction is drawn by article 27, paragraph 2,
tion of its performance by all the other States (subpara-
of the Convention on the Settlement of Investment Disputes between
graph (b) (ii)); this is the so-called “integral” or “inter-
States and Nationals of other States, which distinguishes between the 66 In relation to article 42, such a treaty right could be considered a
bringing of an international claim in the field of diplomatic protection
and “informal diplomatic exchanges for the sole purpose of facilitating lex specialis: see article 55 and commentary.
a settlement of the dispute”. 66 Cf. the 1969 Vienna Convention, art. 73.
341
Annex 13
dependent” obligation.669 In each of these cases, the pos- eral treaties. But although a multilateral treaty will char-
sible suspension or termination of the obligation or of its acteristically establish a framework of rules applicable to
performance by the injured State may be of little value to all the States parties, in certain cases its performance in a
it as a remedy. Its primary interest may be in the restora- given situation involves a relationship of a bilateral char-
tion of the legal relationship by cessation and reparation. acter between two parties. Multilateral treaties of this kind
have often been referred to as giving rise to “ ‘bundles’ of
(6) Pursuant to subparagraph (a) of article 42, a State is bilateral relations”.672
“injured” if the obligation breached was owed to it individ-
ually. The expression “individually” indicates that in the (9) The identification of one particular State as injured
circumstances, performance of the obligation was owed by a breach of an obligation under the Vienna Convention
to that State. This will necessarily be true of an obliga- on Diplomatic Relations does not exclude that all States
tion arising under a bilateral treaty between the two States parties may have an interest of a general character in com-
parties to it, but it will also be true in other cases, e.g. of pliance with international law and in the continuation of
a unilateral commitment made by one State to another. It international institutions and arrangements which have
may be the case under a rule of general international law: been built up over the years. In the United States Diplo-
thus, for example, rules concerning the non-navigational matic and Consular Staff in Tehran case, after referring to
uses of an international river which may give rise to indi- the “fundamentally unlawful character” of the Islamic Re-
vidual obligations as between one riparian State and an- public of Iran’s conduct in participating in the detention of
other. Or it may be true under a multilateral treaty where the diplomatic and consular personnel, the Court drew:
particular performance is incumbent under the treaty as the attention of the entire international community, of which Iran itself
between one State party and another. For example, the has been a member since time immemorial, to the irreparable harm that
obligation of the receiving State under article 22 of the may be caused by events of the kind now before the Court. Such events
Vienna Convention on Diplomatic Relations to protect the cannot fail to undermine the edifice of law carefully constructed by
mankind over a period of centuries, the maintenance of which is vital
premises of a mission is owed to the sending State. Such for the security and well-being of the complex international community
cases are to be contrasted with situations where perform- of the present day, to which it is more essential than ever that the rules
ance of the obligation is owed generally to the parties to developed to ensure the ordered progress of relations between its mem-
the treaty at the same time and is not differentiated or in- bers should be constantly and scrupulously respected.6
dividualized. It will be a matter for the interpretation and
application of the primary rule to determine into which of (10) Although discussion of multilateral obligations
the categories an obligation comes. The following discus- has generally focused on those arising under multilateral
sion is illustrative only. treaties, similar considerations apply to obligations under
rules of customary international law. For example, the
rules of general international law governing the diplomat-
(7) An obvious example of cases coming within the ic or consular relations between States establish bilateral
scope of subparagraph (a) is a bilateral treaty relation- relations between particular receiving and sending States,
ship. If one State violates an obligation the performance and violations of these obligations by a particular receiv-
of which is owed specifically to another State, the latter is ing State injure the sending State to which performance
an “injured State” in the sense of article 42. Other exam- was owed in the specific case.
ples include binding unilateral acts by which one State as-
sumes an obligation vis-à-vis another State; or the case of
(11) Subparagraph (b) deals with injury arising from
a treaty establishing obligations owed to a third State not
violations of collective obligations, i.e. obligations that
party to the treaty.670 If it is established that the benefici-
apply between more than two States and whose perform-
aries of the promise or the stipulation in favour of a third
ance in the given case is not owed to one State individ-
State were intended to acquire actual rights to perform-
ually, but to a group of States or even the international
ance of the obligation in question, they will be injured
community as a whole. The violation of these obligations
by its breach. Another example is a binding judgement
only injures any particular State if additional requirements
of an international court or tribunal imposing obligations
are met. In using the expression “group of States”, article
on one State party to the litigation for the benefit of the
42, subparagraph (b), does not imply that the group has
other party.671
any separate existence or that it has separate legal person-
ality. Rather, the term is intended to refer to a group of
(8) In addition, subparagraph (a) is intended to cover States, consisting of all or a considerable number of States
cases where the performance of an obligation under a in the world or in a given region, which have combined
multilateral treaty or customary international law is owed to achieve some collective purpose and which may be
to one particular State. The scope of subparagraph (a)
in this respect is different from that of article 60, para- 6 See, e.g., K. Sachariew, “State responsibility for multilateral
graph 1, of the 1969 Vienna Convention, which relies on treaty violations: identifying the ‘injured State’ and its legal status”,
Netherlands International Law Review, vol. 35, No. 3 (1988), p. 273,
the formal criterion of bilateral as compared with multilat- at pp. 277–278; B. Simma, “Bilateralism and community interest in the
669 The notion of “integral” obligations was developed by Fitzmau-
law of State responsibility”, International Law at a Time of Perplex-
ity: Essays in Honour of Shabtai Rosenne, Y. Dinstein, ed. (Dordrecht,
rice as Special Rapporteur on the Law of Treaties: see Yearbook … Martinus Nijhoff, 1989), p. 821, at p. 823; C. Annacker, “The legal
1957, vol. II, p. 54. The term has sometimes given rise to confusion, régime of erga omnes obligations in international law”, Austrian
being used to refer to human rights or environmental obligations which Journal of Public and International Law, vol. 46, No. 2 (1994), p. 131,
are not owed on an “all or nothing” basis. The term “interdependent at p. 136; and D. N. Hutchinson, “Solidarity and breaches of multilat-
obligations” may be more appropriate. eral treaties”, BYBIL, 1988, vol. 59, p. 151, at pp. 154–155.
60 Cf. the 1969 Vienna Convention, art. 36. 6 United States Diplomatic and Consular Staff in Tehran (see foot-
61 See, e.g., Article 59 of the Statute of ICJ. note 59 above), pp. 41–43, paras. 89 and 92.
342
Annex 13
considered for that purpose as making up a community of arctic Treaty claims sovereignty over an unclaimed area
States of a functional character. of Antarctica contrary to article 4 of that Treaty, the other
States parties should be considered as injured thereby and
(12) Subparagraph (b) (i) stipulates that a State is in- as entitled to seek cessation, restitution (in the form of the
jured if it is “specially affected” by the violation of a col- annulment of the claim) and assurances of non-repetition
lective obligation. The term “specially affected” is taken in accordance with Part Two.
from article 60, paragraph (2) (b), of the 1969 Vienna
Convention. Even in cases where the legal effects of an (15) The articles deal with obligations arising under in-
internationally wrongful act extend by implication to the ternational law from whatever source and are not confined
whole group of States bound by the obligation or to the to treaty obligations. In practice, interdependent obliga-
international community as a whole, the wrongful act may tions covered by subparagraph (b) (ii) will usually arise
have particular adverse effects on one State or on a small under treaties establishing particular regimes. Even under
number of States. For example a case of pollution of the such treaties it may not be the case that just any breach of
high seas in breach of article 194 of the United Nations the obligation has the effect of undermining the perform-
Convention on the Law of the Sea may particularly im- ance of all the other States involved, and it is desirable that
pact on one or several States whose beaches may be pol- this subparagraph be narrow in its scope. Accordingly, a
luted by toxic residues or whose coastal fisheries may be State is only considered injured under subparagraph (b)
closed. In that case, independently of any general interest (ii) if the breach is of such a character as radically to af-
of the States parties to the Convention in the preservation fect the enjoyment of the rights or the performance of the
of the marine environment, those coastal States parties obligations of all the other States to which the obligation
should be considered as injured by the breach. Like arti- is owed.
cle 60, paragraph (2) (b), of the 1969 Vienna Convention,
subparagraph (b) (i) does not define the nature or extent
of the special impact that a State must have sustained in Article 43. Notice of claim by an injured State
order to be considered “injured”. This will have to be as-
sessed on a case-by-case basis, having regard to the object 1. An injured State which invokes the responsibil-
and purpose of the primary obligation breached and the ity of another State shall give notice of its claim to that
facts of each case. For a State to be considered injured, State.
it must be affected by the breach in a way which distin- 2. The injured State may specify in particular:
guishes it from the generality of other States to which the
obligation is owed. (a) the conduct that the responsible State should
take in order to cease the wrongful act, if it is continu-
(13) In contrast, subparagraph (b) (ii) deals with a spe- ing;
cial category of obligations, the breach of which must be (b) what form reparation should take in accord-
considered as affecting per se every other State to which ance with the provisions of Part Two.
the obligation is owed. Article 60, paragraph 2 (c), of the
1969 Vienna Convention recognizes an analogous cat-
egory of treaties, viz. those “of such a character that a Commentary
material breach of its provisions by one party radically
changes the position of every party with respect to the
further performance of its obligations”. Examples include (1) Article 43 concerns the modalities to be observed by
a disarmament treaty,674 a nuclear-free zone treaty, or any an injured State in invoking the responsibility of another
other treaty where each party’s performance is effectively State. The article applies to the injured State as defined in
conditioned upon and requires the performance of each article 42, but States invoking responsibility under article
of the others. Under article 60, paragraph 2 (c), any State 48 must also comply with its requirements.675
party to such a treaty may terminate or suspend it in its
relations not merely with the responsible State but gener- (2) Although State responsibility arises by operation of
ally in its relations with all the other parties. law on the commission of an internationally wrongful act
by a State, in practice it is necessary for an injured State
and/or other interested State(s) to respond, if they wish to
(14) Essentially, the same considerations apply to obli-
seek cessation or reparation. Responses can take a variety
gations of this character for the purposes of State respon-
of forms, from an unofficial and confidential reminder
sibility. The other States parties may have no interest in
of the need to fulfil the obligation through formal pro-
the termination or suspension of such obligations as dis-
test, consultations, etc. Moreover, the failure of an injured
tinct from continued performance, and they must all be
State which has notice of a breach to respond may have le-
considered as individually entitled to react to a breach.
gal consequences, including even the eventual loss of the
This is so whether or not any one of them is particularly
right to invoke responsibility by waiver or acquiescence:
affected; indeed they may all be equally affected, and none
this is dealt with in article 45.
may have suffered quantifiable damage for the purposes
of article 36. They may nonetheless have a strong interest
in cessation and in other aspects of reparation, in particu- (3) Article 43 requires an injured State which wishes to
lar restitution. For example, if one State party to the Ant- invoke the responsibility of another State to give notice of
its claim to that State. It is analogous to article 65 of the
6 The example given in the commentary of the Commission to what 1969 Vienna Convention. Notice under article 43 need not
became article 60: Yearbook … 1966, vol. II, p. 255, document A/6309/
Rev.1, para. (8). 6 See article 48, paragraph (3), and commentary.
343
Annex 13
be in writing, nor is it a condition for the operation of the satisfy the injured State; this may facilitate the resolution
obligation to provide reparation. Moreover, the require- of the dispute.
ment of notification of the claim does not imply that the
normal consequence of the non-performance of an inter- (6) Paragraph 2 (b) deals with the question of the elec-
national obligation is the lodging of a statement of claim. tion of the form of reparation by the injured State. In gen-
Nonetheless, an injured or interested State is entitled to eral, an injured State is entitled to elect as between the
respond to the breach and the first step should be to call available forms of reparation. Thus, it may prefer com-
the attention of the responsible State to the situation, and pensation to the possibility of restitution, as Germany did
to call on it to take appropriate steps to cease the breach in the Factory at Chorzów case,679 or as Finland eventual-
and to provide redress. ly chose to do in its settlement of the Passage through the
Great Belt case.680 Or it may content itself with declara-
(4) It is not the function of the articles to specify in de- tory relief, generally or in relation to a particular aspect
tail the form which an invocation of responsibility should of its claim. On the other hand, there are cases where a
take. In practice, claims of responsibility are raised at dif- State may not, as it were, pocket compensation and walk
ferent levels of government, depending on their serious- away from an unresolved situation, for example one in-
ness and on the general relations between the States con- volving the life or liberty of individuals or the entitlement
cerned. In the Certain Phosphate Lands in Nauru case, of a people to their territory or to self-determination. In
Australia argued that Nauru’s claim was inadmissible particular, insofar as there are continuing obligations the
because it had “not been submitted within a reasonable performance of which are not simply matters for the two
time”.676 The Court referred to the fact that the claim had States concerned, those States may not be able to resolve
been raised, and not settled, prior to Nauru’s independence the situation by a settlement, just as an injured State may
in 1968, and to press reports that the claim had been men- not be able on its own to absolve the responsible State
tioned by the new President of Nauru in his independence from its continuing obligations to a larger group of States
day speech, as well as, inferentially, in subsequent cor- or to the international community as a whole.
respondence and discussions with Australian Ministers.
However, the Court also noted that: (7) In the light of these limitations on the capacity of the
It was only on 6 October 1983 that the President of Nauru wrote to injured State to elect the preferred form of reparation, arti-
the Prime Minister of Australia requesting him to “seek a sympathetic cle 43 does not set forth the right of election in an absolute
reconsideration of Nauru’s position”. 6 form. Instead, it provides guidance to an injured State as
to what sort of information it may include in its notifica-
The Court summarized the communications between the tion of the claim or in subsequent communications.
parties as follows:
The Court … takes note of the fact that Nauru was officially informed,
at the latest by letter of 4 February 1969, of the position of Australia on
the subject of rehabilitation of the phosphate lands worked out before
Article 44. Admissibility of claims
1 July 1967. Nauru took issue with that position in writing only on
6 October 1983. In the meantime, however, as stated by Nauru and The responsibility of a State may not be invoked if:
not contradicted by Australia, the question had on two occasions been
raised by the President of Nauru with the competent Australian authori-
ties. The Court considers that, given the nature of relations between (a) the claim is not brought in accordance with any
Australia and Nauru, as well as the steps thus taken, Nauru’s Applica- applicable rule relating to the nationality of claims;
tion was not rendered inadmissible by passage of time. 6
(b) the claim is one to which the rule of exhaustion
In the circumstances, it was sufficient that the respondent of local remedies applies and any available and effec-
State was aware of the claim as a result of communications tive local remedy has not been exhausted.
from the claimant, even if the evidence of those communi-
cations took the form of press reports of speeches or meet-
ings rather than of formal diplomatic correspondence.
Commentary
(5) When giving notice of a claim, an injured or inter-
ested State will normally specify what conduct in its view (1) The present articles are not concerned with ques-
is required of the responsible State by way of cessation of tions of the jurisdiction of international courts and tribu-
any continuing wrongful act, and what form any repara- nals, or in general with the conditions for the admissibility
tion should take. Thus, paragraph 2 (a) provides that the of cases brought before such courts or tribunals. Rather,
injured State may indicate to the responsible State what they define the conditions for establishing the interna-
should be done in order to cease the wrongful act, if it is tional responsibility of a State and for the invocation of
continuing. This indication is not, as such, binding on the 69 As PCIJ noted in the Factory at Chorzów, Jurisdiction (see foot-
responsible State. The injured State can only require the note 34 above), by that stage of the dispute, Germany was no longer
responsible State to comply with its obligations, and the seeking on behalf of the German companies concerned the return of the
legal consequences of an internationally wrongful act are factory in question or of its contents (p. 17).
not for the injured State to stipulate or define. But it may 60 In the Passage through the Great Belt (Finland v. Denmark),
be helpful to the responsible State to know what would Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991,
p. 12, ICJ did not accept Denmark’s argument as to the impossibility
66 Certain Phosphate Lands in Nauru, Preliminary Objections of restitution if, on the merits, it was found that the construction of the
bridge across the Great Belt would result in a violation of Denmark’s
(see footnote 230 above), p. 253, para. 31.
6 Ibid., p. 254, para. 35.
international obligations. For the terms of the eventual settlement, see
M. Koskenniemi, “L’affaire du passage par le Grand-Belt”, Annuaire
6 Ibid., pp. 254–255, para. 36. français de droit international, vol. 38 (1992), p. 905, at p. 940.
344
Annex 13
that responsibility by another State or States. Thus, it is brought on behalf of a corporation of the claimant State,
not the function of the articles to deal with such questions the Chamber defined the rule succinctly in the following
as the requirement for exhausting other means of peace- terms:
ful settlement before commencing proceedings, or such for an international claim [sc. on behalf of individual nationals or cor-
doctrines as litispendence or election as they may affect porations] to be admissible, it is sufficient if the essence of the claim
the jurisdiction of one international tribunal vis-à-vis an- has been brought before the competent tribunals and pursued as far as
other.681 By contrast, certain questions which would be permitted by local law and procedures, and without success.685
classified as questions of admissibility when raised before
an international court are of a more fundamental charac- The Chamber thus treated the exhaustion of local rem-
ter. They are conditions for invoking the responsibility of edies as being distinct, in principle, from “the merits of
a State in the first place. Two such matters are dealt with the case”.686
in article 44: the requirements of nationality of claims and
exhaustion of local remedies. (5) Only those local remedies which are “available and
effective” have to be exhausted before invoking the re-
(2) Subparagraph (a) provides that the responsibility of sponsibility of a State. The mere existence on paper of
a State may not be invoked other than in accordance with remedies under the internal law of a State does not im-
any applicable rule relating to the nationality of claims. pose a requirement to make use of those remedies in
As PCIJ said in the Mavrommatis Palestine Concessions every case. In particular, there is no requirement to use a
case: remedy which offers no possibility of redressing the situ-
ation, for instance, where it is clear from the outset that
It is an elementary principle of international law that a State is entitled the law which the local court would have to apply can lead
to protect its subjects, when injured by acts contrary to international only to the rejection of any appeal. Beyond this, article
law committed by another State, from whom they have been unable to 44, subparagraph (b), does not attempt to spell out com-
obtain satisfaction through the ordinary channels.6
prehensively the scope and content of the exhaustion of
Subparagraph (a) does not attempt a detailed elaboration local remedies rule, leaving this to the applicable rules of
of the nationality of claims rule or of the exceptions to international law.687
it. Rather, it makes it clear that the nationality of claims
rule is not only relevant to questions of jurisdiction or the
admissibility of claims before judicial bodies, but is also Article 45. Loss of the right to invoke responsibility
a general condition for the invocation of responsibility in
those cases where it is applicable.683 The responsibility of a State may not be invoked if:
(3) Subparagraph (b) provides that when the claim is (a) the injured State has validly waived the claim;
one to which the rule of exhaustion of local remedies ap-
plies, the claim is inadmissible if any available and effec- (b) the injured State is to be considered as having,
tive local remedy has not been exhausted. The paragraph by reason of its conduct, validly acquiesced in the lapse
is formulated in general terms in order to cover any case of the claim.
to which the exhaustion of local remedies rule applies,
whether under treaty or general international law, and in
spheres not necessarily limited to diplomatic protection. Commentary
(4) The local remedies rule was described by a Chamber (1) Article 45 is analogous to article 45 of the 1969 Vi-
of the Court in the ELSI case as “an important principle of enna Convention concerning loss of the right to invoke a
customary international law”.684 In the context of a claim ground for invalidating or terminating a treaty. The article
61 For discussion of the range of considerations affecting jurisdic- deals with two situations in which the right of an injured
tion and admissibility of international claims before courts, see G. State or other States concerned to invoke the responsibili-
Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour ty of a wrongdoing State may be lost: waiver and acquies-
internationale (Paris, Pedone, 1967); Sir Gerald Fitzmaurice, The cence in the lapse of the claim. In this regard, the position
Law and Procedure of the International Court of Justice (Cambridge, of an injured State as referred to in article 42 and other
Grotius, 1986), vol. 2, pp. 427–575; and S. Rosenne, The Law and
Practice of the International Court, 1920–1996, 3rd ed. (The Hague,
States concerned with a breach needs to be distinguished.
Martinus Nijhoff, 1997), vol. II, Jurisdiction. A valid waiver or settlement of the responsibility dispute
6 Mavrommatis (see footnote 236 above), p. 12.
6 Questions of nationality of claims will be dealt with in detail in dans le projet d’articles de la Commission du droit international”,
Festschrift für Rudolf Bindschedler (Bern, Stämpfli, 1980), p. 271.
the work of the Commission on diplomatic protection. See first report
On the exhaustion of local remedies rule in relation to violations of
of the Special Rapporteur for the topic “Diplomatic protection” in
human rights obligations, see, e.g., A. A. Cançado Trindade, The Ap-
Yearbook … 2000, vol. II (Part One), document A/CN.4/506 and
plication of the Rule of Exhaustion of Local Remedies in International
Add.1.
6 ELSI (see footnote 85 above), p. 42, para. 50. See also Interhan-
Law: Its Rationale in the International Protection of Individual Rights
(Cambridge University Press, 1983); and E. Wyler, L’illicite et la condi-
del, Preliminary Objections, I.C.J. Reports 1959, p. 6, at p. 27. On the tion des personnes privées (Paris, Pedone, 1995), pp. 65–89.
exhaustion of local remedies rule generally, see, e.g., C. F. Amerasing- 6 ELSI (see footnote 85 above), p. 46, para. 59.
he, Local Remedies in International Law (Cambridge, Grotius, 1990); 66 Ibid., p. 48, para. 63.
J. Chappez, La règle de l’épuisement des voies de recours internes
(Paris, Pedone, 1972); K. Doehring, “Local remedies, exhaustion of ”, 6 The topic will be dealt with in detail in the work of the Commis-
Encyclopedia of Public International Law, R. Bernhardt, ed. (footnote sion on diplomatic protection. See second report of the Special Rappor-
409 above), vol. 3, pp. 238–242; and G. Perrin, “La naissance de la re- teur on diplomatic protection in Yearbook … 2001, vol. II (Part One),
sponsabilité internationale et l’épuisement des voies de recours internes document A/CN.4/514.
345
Annex 13
between the responsible State and the injured State, or, pressed clearly and repeatedly by the representatives of
if there is more than one, all the injured States, may pre- the Nauruan people before various organs of the United
clude any claim for reparation. Positions taken by indi- Nations”.691
vidual States referred to in article 48 will not have such
an effect.
(6) Just as it may explicitly waive the right to invoke
responsibility, so an injured State may acquiesce in the
(2) Subparagraph (a) deals with the case where an in- loss of that right. Subparagraph (b) deals with the case
jured State has waived either the breach itself, or its conse- where an injured State is to be considered as having, by
quences in terms of responsibility. This is a manifestation reason of its conduct, validly acquiesced in the lapse of
of the general principle of consent in relation to rights or the claim. The article emphasizes conduct of the State,
obligations within the dispensation of a particular State. which could include, where applicable, unreasonable de-
lay, as the determining criterion for the lapse of the claim.
(3) In some cases, the waiver may apply only to one as- Mere lapse of time without a claim being resolved is not,
pect of the legal relationship between the injured State and as such, enough to amount to acquiescence, in particular
the responsible State. For example, in the Russian Indem- where the injured State does everything it can reasonably
nity case, the Russian embassy had repeatedly demanded do to maintain its claim.
from Turkey a certain sum corresponding to the capital
amount of a loan, without any reference to interest or
damages for delay. Turkey having paid the sum demanded, (7) The principle that a State may by acquiescence lose
the tribunal held that this conduct amounted to the aban- its right to invoke responsibility was endorsed by ICJ in
donment of any other claim arising from the loan.688 the Certain Phosphate Lands in Nauru case, in the fol-
lowing passage:
(4) A waiver is only effective if it is validly given. As The Court recognizes that, even in the absence of any applicable treaty
with other manifestations of State consent, questions of provision, delay on the part of a claimant State may render an applica-
validity can arise with respect to a waiver, for example, tion inadmissible. It notes, however, that international law does not lay
possible coercion of the State or its representative, or a down any specific time limit in that regard. It is therefore for the Court
to determine in the light of the circumstances of each case whether the
material error as to the facts of the matter, arising perhaps passage of time renders an application inadmissible.69
from a misrepresentation of those facts by the responsible
State. The use of the term “valid waiver” is intended to
leave to the general law the question of what amounts to In the LaGrand case, the Court held the German appli-
a valid waiver in the circumstances.689 Of particular sig- cation admissible even though Germany had taken legal
nificance in this respect is the question of consent given action some years after the breach had become known
by an injured State following a breach of an obligation to it.693
arising from a peremptory norm of general international
law, especially one to which article 40 applies. Since such (8) One concern of the rules relating to delay is that ad-
a breach engages the interest of the international commu- ditional difficulties may be caused to the respondent State
nity as a whole, even the consent or acquiescence of the due to the lapse of time, e.g. as concerns the collection
injured State does not preclude that interest from being and presentation of evidence. Thus, in the Stevenson case
expressed in order to ensure a settlement in conformity and the Gentini case, considerations of procedural fairness
with international law. to the respondent State were advanced.694 In contrast, the
plea of delay has been rejected if, in the circumstances of
(5) Although it may be possible to infer a waiver from a case, the respondent State could not establish the exist-
the conduct of the States concerned or from a unilateral ence of any prejudice on its part, as where it has always
statement, the conduct or statement must be unequivocal. had notice of the claim and was in a position to collect and
In the Certain Phosphate Lands in Nauru case, it was preserve evidence relating to it.695
argued that the Nauruan authorities before independence
had waived the rehabilitation claim by concluding an (9) Moreover, contrary to what may be suggested by
agreement relating to the future of the phosphate industry the expression “delay”, international courts have not en-
as well as by statements made at the time of independ- gaged simply in measuring the lapse of time and applying
ence. As to the former, the record of negotiations showed clear-cut time limits. No generally accepted time limit,
that the question of waiving the rehabilitation claim had
been raised and not accepted, and the Agreement itself 691 Ibid.,p. 250, para. 20.
was silent on the point. As to the latter, the relevant state- 69 Ibid., pp. 253–254, para. 32. The Court went on to hold that,
ments were unclear and equivocal. The Court held there in the circumstances of the case and having regard to the history of
had been no waiver, since the conduct in question “did the matter, Nauru’s application was not inadmissible on this ground
not at any time effect a clear and unequivocal waiver of (para. 36). It reserved for the merits any question of prejudice to the
respondent State by reason of the delay. See further paragraph (8) of the
their claims”.690 In particular, the statements relied on commentary to article 13.
“[n]otwithstanding some ambiguity in the wording … 69 LaGrand, Provisional Measures (see footnote 91 above)
did not imply any departure from the point of view ex- and LaGrand, Judgment (see footnote 119 above), at pp. 486–487,
paras. 53–57.
6 Russian Indemnity (see footnote 354 above), p. 446. 69 See Stevenson, UNRIAA, vol. IX (Sales No. 59.V.5), p. 385
69 Cf. the position with respect to valid consent under article 20: see (1903); and Gentini, ibid., vol. X (Sales No. 60.V.4), p. 551 (1903).
paragraphs (4) to (8) of the commentary to article 20. 69 See, e.g., Tagliaferro, UNRIAA, vol. X (Sales No. 60.V.4),
690 Certain Phosphate Lands in Nauru, Preliminary Objections (see p. 592, at p. 593 (1903); see also the actual decision in Stevenson
footnote 230 above), p. 247, para. 13. (footnote 694 above), pp. 386–387.
346
Annex 13
expressed in terms of years, has been laid down.696 The Article 46. Plurality of injured States
Swiss Federal Department in 1970 suggested a period
of 20 to 30 years since the coming into existence of the Where several States are injured by the same inter-
claim.697 Others have stated that the requirements were nationally wrongful act, each injured State may sepa-
more exacting for contractual claims than for non-con- rately invoke the responsibility of the State which has
tractual claims.698 None of the attempts to establish any committed the internationally wrongful act.
precise or finite time limit for international claims in gen-
eral has achieved acceptance.699 It would be very difficult Commentary
to establish any single limit, given the variety of situa-
tions, obligations and conduct that may be involved.
(1) Article 46 deals with the situation of a plurality of
injured States, in the sense defined in article 42. It states
(10) Once a claim has been notified to the respondent the principle that where there are several injured States,
State, delay in its prosecution (e.g. before an international each of them may separately invoke the responsibility for
tribunal) will not usually be regarded as rendering it in- the internationally wrongful act on its own account.
admissible.700 Thus, in the Certain Phosphate Lands in
Nauru case, ICJ held it to be sufficient that Nauru had re-
ferred to its claims in bilateral negotiations with Australia (2) Several States may qualify as “injured” States under
in the period preceding the formal institution of legal article 42. For example, all the States to which an interde-
proceedings in 1989.701 In the Tagliaferro case, Umpire pendent obligation is owed within the meaning of article
Ralston likewise held that, despite the lapse of 31 years 42, subparagraph (b) (ii), are injured by its breach. In a
since the infliction of damage, the claim was admissible situation of a plurality of injured States, each may seek
as it had been notified immediately after the injury had cessation of the wrongful act if it is continuing, and claim
occurred.702 reparation in respect of the injury to itself. This conclu-
sion has never been doubted, and is implicit in the terms
(11) To summarize, a claim will not be inadmissible on of article 42 itself.
grounds of delay unless the circumstances are such that
the injured State should be considered as having acqui- (3) It is by no means unusual for claims arising from
esced in the lapse of the claim or the respondent State the same internationally wrongful act to be brought by
has been seriously disadvantaged. International courts several States. For example, in the S.S. “Wimbledon”
generally engage in a flexible weighing of relevant cir- case, four States brought proceedings before PCIJ un-
cumstances in the given case, taking into account such der article 386, paragraph 1, of the Treaty of Versailles,
matters as the conduct of the respondent State and the which allowed “any interested Power” to apply in the
importance of the rights involved. The decisive factor is event of a violation of the provisions of the Treaty con-
whether the respondent State has suffered any prejudice cerning transit through the Kiel Canal. The Court noted
as a result of the delay in the sense that the respondent that “each of the four Applicant Powers has a clear inter-
could have reasonably expected that the claim would no est in the execution of the provisions relating to the Kiel
longer be pursued. Even if there has been some prejudice, Canal, since they all possess fleets and merchant vessels
it may be able to be taken into account in determining the flying their respective flags”. It held they were each cov-
form or extent of reparation.703 ered by article 386, paragraph 1, “even though they may
be unable to adduce a prejudice to any pecuniary inter-
696 In some cases time limits are laid down for specific categories of est”.704 In fact, only France, representing the operator of
claims arising under specific treaties (e.g. the six-month time limit for the vessel, claimed and was awarded compensation. In
individual applications under article 35, paragraph 1, of the European the cases concerning the Aerial Incident of 27 July 1955,
Convention on Human Rights) notably in the area of private law (e.g.
in the field of commercial transactions and international transport). See proceedings were commenced by the United States, the
the Convention on the Limitation Period in the International Sale of United Kingdom and Israel against Bulgaria concerning
Goods, as amended by the Protocol to the Convention. By contrast, it is the destruction of an Israeli civil aircraft and the loss of
highly unusual for treaty provisions dealing with inter-State claims to lives involved.705 In the Nuclear Tests cases, Australia
be subject to any express time limits.
69 Communiqué of 29 December 1970, in Annuaire suisse de droit
and New Zealand each claimed to be injured in various
international, vol. 32 (1976), p. 153. ways by the French conduct of atmospheric nuclear tests
69 C.-A. Fleischhauer, “Prescription”, Encyclopedia of Public Inter- at Mururoa Atoll.706
national Law (see footnote 409 above), vol. 3, p. 1105, at p. 1107.
699 A large number of international decisions stress the absence of (4) Where the States concerned do not claim compensa-
general rules, and in particular of any specific limitation period meas- tion on their own account as distinct from a declaration
ured in years. Rather, the principle of delay is a matter of appreciation
having regard to the facts of the given case. Besides Certain Phosphate 0 S.S. “Wimbledon” (see footnote 34 above), p. 20.
Lands in Nauru (footnotes 230 and 232 above), see, e.g. Gentini (foot- 0
note 694 above), p. 561; and the Ambatielos arbitration, ILR, vol. 23, ICJ held that it lacked jurisdiction over the Israeli claim: Aerial
p. 306, at pp. 314–317 (1956). Incident of 27 July 1955 (Israel v. Bulgaria), Judgment, I.C.J. Reports
00 For statements of the distinction between notice of claim and 1959, p. 131, after which the United Kingdom and United States claims
were withdrawn. In its Memorial, Israel noted that there had been active
commencement of proceedings, see, e.g. R. Jennings and A. Watts, eds.,
coordination of the claims between the various claimant Governments,
Oppenheim’s International Law, 9th ed. (Harlow, Longman, 1992),
and added: “One of the primary reasons for establishing coordination
vol. I, Peace, p. 527; and C. Rousseau, Droit international public (Paris,
of this character from the earliest stages was to prevent, so far as was
Sirey, 1983), vol. V, p. 182.
01 Certain Phosphate Lands in Nauru, Preliminary Objections
possible, the Bulgarian Government being faced with double claims
leading to the possibility of double damages” (see footnote 363 above),
(see footnote 230 above), p. 250, para. 20. p. 106.
0 Tagliaferro (see footnote 695 above), p. 593. 06 See Nuclear Tests (Australia v. France) and (New Zealand
0 See article 39 and commentary. v. France) (footnote 196 above), pp. 256 and 460, respectively.
347
Annex 13
of the legal situation, it may not be clear whether they are common organ which carries out the conduct in question,
claiming as injured States or as States invoking respon- e.g. a joint authority responsible for the management of a
sibility in the common or general interest under article boundary river. Or one State may direct and control an-
48. Indeed, in such cases it may not be necessary to de- other State in the commission of the same internationally
cide into which category they fall, provided it is clear that wrongful act by the latter, such that both are responsible
they fall into one or the other. Where there is more than for the act.709
one injured State claiming compensation on its own ac-
count or on account of its nationals, evidently each State (3) It is important not to assume that internal law con-
will be limited to the damage actually suffered. Circum- cepts and rules in this field can be applied directly to in-
stances might also arise in which several States injured by ternational law. Terms such as “joint”, “joint and several”
the same act made incompatible claims. For example, one and “solidary” responsibility derive from different legal
State may claim restitution whereas the other may prefer traditions710 and analogies must be applied with care. In
compensation. If restitution is indivisible in such a case international law, the general principle in the case of a
and the election of the second State is valid, it may be that plurality of responsible States is that each State is sepa-
compensation is appropriate in respect of both claims.707 rately responsible for conduct attributable to it in the
In any event, two injured States each claiming in respect sense of article 2. The principle of independent responsi-
of the same wrongful act would be expected to coordinate bility reflects the position under general international law,
their claims so as to avoid double recovery. As ICJ pointed in the absence of agreement to the contrary between the
out in its advisory opinion on Reparation for Injuries, “In- States concerned.711 In the application of that principle,
ternational tribunals are already familiar with the problem however, the situation can arise where a single course of
of a claim in which two or more national States are inter- conduct is at the same time attributable to several States
ested, and they know how to protect the defendant State and is internationally wrongful for each of them. It is to
in such a case”.708 such cases that article 47 is addressed.
(4) In the Certain Phosphate Lands in Nauru case,712

Article 47. Plurality of responsible States Australia, the sole respondent, had administered Nauru
as a trust territory under the Trusteeship Agreement on
1. Where several States are responsible for the behalf of the three States concerned. Australia argued that
same internationally wrongful act, the responsibility it could not be sued alone by Nauru, but only jointly with
of each State may be invoked in relation to that act. the other two States concerned. Australia argued that the
two States were necessary parties to the case and that in
2. Paragraph 1: accordance with the principle formulated in Monetary
Gold,713 the claim against Australia alone was inadmis-
(a) does not permit any injured State to recover, by
sible. It also argued that the responsibility of the three
way of compensation, more than the damage it has suf-
States making up the Administering Authority was “soli-
fered;
dary” and that a claim could not be made against only
one of them. The Court rejected both arguments. On the
(b) is without prejudice to any right of recourse question of “solidary” responsibility it said:
against the other responsible States.
Australia has raised the question whether the liability of the three States
would be “joint and several” (solidaire), so that any one of the three
would be liable to make full reparation for damage flowing from any
breach of the obligations of the Administering Authority, and not merely
Commentary a one-third or some other proportionate share. This … is independent of
the question whether Australia can be sued alone. The Court does not
(1) Article 47 deals with the situation where there is consider that any reason has been shown why a claim brought against
only one of the three States should be declared inadmissible in limine
a plurality of responsible States in respect of the same litis merely because that claim raises questions of the administration
wrongful act. It states the general principle that in such of the Territory, which was shared with two other States. It cannot be
cases each State is separately responsible for the conduct denied that Australia had obligations under the Trusteeship Agreement,
attributable to it, and that responsibility is not diminished in its capacity as one of the three States forming the Administering Au-
or reduced by the fact that one or more other States are thority, and there is nothing in the character of that Agreement which
debars the Court from considering a claim of a breach of those obliga-
also responsible for the same act. tions by Australia.1
(2) Several States may be responsible for the same inter- The Court was careful to add that its decision on juris-
nationally wrongful act in a range of circumstances. For diction “does not settle the question whether reparation
example, two or more States might combine in carrying
out together an internationally wrongful act in circum- 09 See article 17 and commentary.
stances where they may be regarded as acting jointly in re- 10 For a comparative survey of internal laws on solidary or joint
spect of the entire operation. In that case the injured State liability, see T. Weir, loc. cit. (footnote 471 above), vol. XI, especially
can hold each responsible State to account for the wrong- pp. 43–44, sects. 79–81.
11 See paragraphs (1) to (5) of the introductory commentary to
ful conduct as a whole. Or two States may act through a
chapter IV of Part One.
0 Cf. Forests of Central Rhodopia, where the arbitrator declined to 1 See footnote 230 above.
award restitution, inter alia, on the ground that not all the persons or 1 See footnote 286 above. See also paragraph (11) of the commen-
entities interested in restitution had claimed (see footnote 382 above), tary to article 16.
p. 1432. 1 Certain Phosphate Lands in Nauru, Preliminary Objections
0 Reparation for Injuries (see footnote 38 above), p. 186. (see footnote 230 above), pp. 258–259, para. 48.
348
Annex 13
would be due from Australia, if found responsible, for quences that flow from the wrongful act, for example in
the whole or only for part of the damage Nauru alleges it terms of reparation, will be those which flow from the
has suffered, regard being had to the characteristics of the provisions of Part Two in relation to that State.
Mandate and Trusteeship Systems … and, in particular,
the special role played by Australia in the administration (8) Article 47 only addresses the situation of a plurality
of the Territory”.715 of responsible States in relation to the same internation-
ally wrongful act. The identification of such an act will
(5) The extent of responsibility for conduct carried on depend on the particular primary obligation, and cannot
by a number of States is sometimes addressed in treaties.716 be prescribed in the abstract. Of course, situations can
A well-known example is the Convention on International also arise where several States by separate internationally
Liability for Damage Caused by Space Objects. Article wrongful conduct have contributed to causing the same
IV, paragraph 1, provides expressly for “joint and several damage. For example, several States might contribute to
liability” where damage is suffered by a third State as a polluting a river by the separate discharge of pollutants.
result of a collision between two space objects launched In the Corfu Channel incident, it appears that Yugoslavia
by two States. In some cases liability is strict; in others it actually laid the mines and would have been responsible
is based on fault. Article IV, paragraph 2, provides: for the damage they caused. ICJ held that Albania was
responsible to the United Kingdom for the same damage
In all cases of joint and several liability referred to in paragraph 1 … on the basis that it knew or should have known of the pres-
the burden of compensation for the damage shall be apportioned be- ence of the mines and of the attempt by the British ships to
tween the first two States in accordance with the extent to which they exercise their right of transit, but failed to warn the ships.719
were at fault; if the extent of the fault of each of these States cannot be Yet, it was not suggested that Albania’s responsibility for
established, the burden of compensation shall be apportioned equally
between them. Such apportionment shall be without prejudice to the failure to warn was reduced, let alone precluded, by rea-
right of the third State to seek the entire compensation due under this son of the concurrent responsibility of a third State. In
Convention from any or all of the launching States which are jointly such cases, the responsibility of each participating State
and severally liable.1 is determined individually, on the basis of its own conduct
and by reference to its own international obligations.
This is clearly a lex specialis, and it concerns liability for
lawful conduct rather than responsibility in the sense of (9) The general principle set out in paragraph 1 of ar-
the present articles.718 At the same time, it indicates what ticle 47 is subject to the two provisos set out in para-
a regime of “joint and several” liability might amount to graph 2. Subparagraph (a) addresses the question of
so far as an injured State is concerned. double recovery by the injured State. It provides that
the injured State may not recover, by way of compensa-
(6) According to paragraph 1 of article 47, where sev- tion, more than the damage suffered.720 This provision is
eral States are responsible for the same internationally designed to protect the responsible States, whose obli-
wrongful act, the responsibility of each State may be in- gation to compensate is limited by the damage suffered.
voked in relation to that act. The general rule in interna- The principle is only concerned to ensure against the
tional law is that of separate responsibility of a State for actual recovery of more than the amount of the damage.
its own wrongful acts and paragraph 1 reflects this gen- It would not exclude simultaneous awards against two or
eral rule. Paragraph 1 neither recognizes a general rule more responsible States, but the award would be satisfied
of joint and several responsibility, nor does it exclude the so far as the injured State is concerned by payment in full
possibility that two or more States will be responsible for made by any one of them.
the same internationally wrongful act. Whether this is so
will depend on the circumstances and on the international (10) The second proviso, in subparagraph (b), recog-
obligations of each of the States concerned. nizes that where there is more than one responsible State
in respect of the same injury, questions of contribution
(7) Under paragraph 1 of article 47, where several States may arise between them. This is specifically envisaged,
are each responsible for the same internationally wrongful for example, in articles IV, paragraph 2, and V, para-
act, the responsibility of each may be separately invoked graph 2, of the Convention on International Liability for
by an injured State in the sense of article 42. The conse- Damage Caused by Space Objects. On the other hand,
there may be cases where recourse by one responsible
1 Ibid., p. 262, para. 56. The case was subsequently withdrawn State against another should not be allowed. Subpara-
by agreement, Australia agreeing to pay by instalments an amount graph (b) does not address the question of contribution
corresponding to the full amount of Nauru’s claim. Subsequently, the
two other Governments agreed to contribute to the payments made
among several States which are responsible for the same
under the settlement. See Certain Phosphate Lands in Nauru, Order wrongful act; it merely provides that the general principle
(footnote 232 above) and the settlement agreement (ibid.). stated in paragraph 1 is without prejudice to any right of
16 A special case is the responsibility of the European Union and its recourse which one responsible State may have against
member States under “mixed agreements”, where the Union and all or any other responsible State.
some members are parties in their own name. See, e.g., annex IX to the
United Nations Convention on the Law of the Sea. Generally on mixed
agreements, see, e.g., A. Rosas, “Mixed Union mixed agreements”,
International Law Aspects of the European Union, M. Koskenniemi,
ed. (The Hague, Kluwer, 1998), p. 125. 19 Corfu Channel, Merits (see footnote 35 above), pp. 22–23.
1 See also article V, paragraph 2, which provides for indemnifica- 0 Such a principle was affirmed, for example, by PCIJ in the
tion between States which are jointly and severally liable. Factory at Chorzów, Merits case (see footnote 34 above), when it
1 See paragraph 4 of the general commentary for the distinction held that a remedy sought by Germany could not be granted “or the
between international responsibility for wrongful acts and international same compensation would be awarded twice over” (p. 59); see also
liability arising from lawful conduct. pp. 45 and 49.
349
Annex 13
Article 48. Invocation of responsibility right to invoke responsibility. Paragraph 2 stipulates which
by a State other than an injured State forms of responsibility States other than injured States
may claim. Paragraph 3 applies the requirements of invo-
1. Any State other than an injured State is entitled cation contained in articles 43, 44 and 45 to cases where
to invoke the responsibility of another State in accord- responsibility is invoked under article 48, paragraph 1.
ance with paragraph 2 if:
(4) Paragraph 1 refers to “[a]ny State other than an in-
(a) the obligation breached is owed to a group of jured State”. In the nature of things, all or many States will
States including that State, and is established for the be entitled to invoke responsibility under article 48, and
protection of a collective interest of the group; or the term “[a]ny State” is intended to avoid any implication
(b) the obligation breached is owed to the interna- that these States have to act together or in unison. More-
over, their entitlement will coincide with that of any in-
tional community as a whole.
jured State in relation to the same internationally wrong-
2. Any State entitled to invoke responsibility under ful act in those cases where a State suffers individual in-
paragraph 1 may claim from the responsible State: jury from a breach of an obligation to which article 48
applies.
(a) cessation of the internationally wrongful act,
and assurances and guarantees of non-repetition in (5) Paragraph 1 defines the categories of obligations,
accordance with article 30; and the breach of which may entitle States other than the in-
jured State to invoke State responsibility. A distinction is
(b) performance of the obligation of reparation in drawn between obligations owed to a group of States and
accordance with the preceding articles, in the interest established to protect a collective interest of the group
of the injured State or of the beneficiaries of the obli- (paragraph 1 (a)), and obligations owed to the internation-
gation breached. al community as a whole (paragraph 1 (b)).722
3. The requirements for the invocation of respon-
sibility by an injured State under articles 3, and (6) Under paragraph 1 (a), States other than the injured
5 apply to an invocation of responsibility by a State State may invoke responsibility if two conditions are met:
entitled to do so under paragraph 1. first, the obligation whose breach has given rise to respon-
sibility must have been owed to a group to which the State
invoking responsibility belongs; and secondly, the obli-
gation must have been established for the protection of
Commentary a collective interest. The provision does not distinguish
between different sources of international law; obliga-
(1) Article 48 complements the rule contained in arti- tions protecting a collective interest of the group may de-
cle 42. It deals with the invocation of responsibility by rive from multilateral treaties or customary international
States other than the injured State acting in the collective law. Such obligations have sometimes been referred to as
interest. A State which is entitled to invoke responsibility “obligations erga omnes partes”.
under article 48 is acting not in its individual capacity by
reason of having suffered injury, but in its capacity as a (7) Obligations coming within the scope of paragraph 1
member of a group of States to which the obligation is (a) have to be “collective obligations”, i.e. they must ap-
owed, or indeed as a member of the international comply between a group of States and have been established
munity as a whole. The distinction is underlined by the in some collective interest.723 They might concern, for
phrase “[a]ny State other than an injured State” in para- example, the environment or security of a region (e.g. a
graph 1 of article 48. regional nuclear-free-zone treaty or a regional system for
the protection of human rights). They are not limited to ar-
(2) Article 48 is based on the idea that in case of breach- rangements established only in the interest of the member
es of specific obligations protecting the collective inter- States but would extend to agreements established by a
ests of a group of States or the interests of the internation- group of States in some wider common interest.724 But in
al community as a whole, responsibility may be invoked any event the arrangement must transcend the sphere of
by States which are not themselves injured in the sense bilateral relations of the States parties. As to the require-
of article 42. Indeed, in respect of obligations to the in- ment that the obligation in question protect a collective
ternational community as a whole, ICJ specifically said interest, it is not the function of the articles to provide
as much in its judgment in the Barcelona Traction case.721 an enumeration of such interests. If they fall within para-
Although the Court noted that “all States can be held to graph 1 (a), their principal purpose will be to foster a
have a legal interest in” the fulfilment of these rights, ar- common interest, over and above any interests of the States
ticle 48 refrains from qualifying the position of the States concerned individually. This would include situations in
identified in article 48, for example by referring to them
as “interested States”. The term “legal interest” would not For the extent of responsibility for serious breaches of obligations
permit a distinction between articles 42 and 48, as injured to the international community as a whole, see Part Two, chap. III and
States in the sense of article 42 also have legal interests. commentary.
See also paragraph (11) of the commentary to article 42.
In the S.S. “Wimbledon” (see footnote 34 above), the Court noted
(3) As to the structure of article 48, paragraph 1 defines “[t]he intention of the authors of the Treaty of Versailles to facilitate
the categories of obligations which give rise to the wider access to the Baltic by establishing an international regime, and conse-
quently to keep the canal open at all times to foreign vessels of every
1 Barcelona Traction (see footnote 25 above), p. 32, para. 33. kind” (p. 23).
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Annex 13
which States, attempting to set general standards of protec- obligation, for example a coastal State specially affected
tion for a group or people, have assumed obligations pro- by pollution in breach of an obligation aimed at protection
tecting non-State entities.725 of the marine environment in the collective interest.
(8) Under paragraph 1 (b), States other than the in- (11) Paragraph 2 specifies the categories of claim which
jured State may invoke responsibility if the obligation in
States may make when invoking responsibility under ar-
question was owed “to the international community as
ticle 48. The list given in the paragraph is exhaustive, and
a whole”.726 The provision intends to give effect to the
statement by ICJ in the Barcelona Traction case, where invocation of responsibility under article 48 gives rise to
the Court drew “an essential distinction” between obliga- a more limited range of rights as compared to those of
tions owed to particular States and those owed “towards injured States under article 42. In particular, the focus of
the international community as a whole”.727 With regard action by a State under article 48—such State not being
to the latter, the Court went on to state that “[i]n view of injured in its own right and therefore not claiming com-
the importance of the rights involved, all States can be pensation on its own account—is likely to be on the very
held to have a legal interest in their protection; they are question whether a State is in breach and on cessation if the
obligations erga omnes”. breach is a continuing one. For example, in the S.S. “Wim-
bledon” case, Japan, which had no economic interest in
the particular voyage, sought only a declaration, whereas
(9) While taking up the essence of this statement, the
articles avoid use of the term “obligations erga omnes”, France, whose national had to bear the loss, sought and
which conveys less information than the Court’s refer- was awarded damages.730 In the South West Africa cases,
ence to the international community as a whole and has Ethiopia and Liberia sought only declarations of the legal
sometimes been confused with obligations owed to all the position.731 In that case, as the Court itself pointed out in
parties to a treaty. Nor is it the function of the articles to 1971, “the injured entity” was a people, viz. the people of
provide a list of those obligations which under existing South West Africa.732
international law are owed to the international community
as a whole. This would go well beyond the task of codify- (12) Under paragraph 2 (a), any State referred to in
ing the secondary rules of State responsibility, and in any article 48 is entitled to request cessation of the wrong-
event, such a list would be only of limited value, as the ful act and, if the circumstances require, assurances and
scope of the concept will necessarily evolve over time. guarantees of non-repetition under article 30. In addi-
The Court itself has given useful guidance: in its 1970 tion, paragraph 2 (b) allows such a State to claim from
judgment it referred, by way of example, to “the outlaw- the responsible State reparation in accordance with the
ing of acts of aggression, and of genocide” and to “the provisions of chapter II of Part Two. In case of breaches
principles and rules concerning the basic rights of the hu- of obligations under article 48, it may well be that there
man person, including protection from slavery and racial is no State which is individually injured by the breach,
discrimination”.728 In its judgment in the East Timor case, yet it is highly desirable that some State or States be in a
the Court added the right of self-determination of peoples position to claim reparation, in particular restitution. In
to this list.729
accordance with paragraph 2 (b), such a claim must be
made in the interest of the injured State, if any, or of the
(10) Each State is entitled, as a member of the interna- beneficiaries of the obligation breached. This aspect of
tional community as a whole, to invoke the responsibility article 48, paragraph 2, involves a measure of progressive
of another State for breaches of such obligations. Whereas development, which is justified since it provides a means
the category of collective obligations covered by para- of protecting the community or collective interest at stake.
graph 1 (a) needs to be further qualified by the insertion In this context it may be noted that certain provisions, for
of additional criteria, no such qualifications are necessary example in various human rights treaties, allow invoca-
in the case of paragraph 1 (b). All States are by definition tion of responsibility by any State party. In those cases
members of the international community as a whole, and where they have been resorted to, a clear distinction has
the obligations in question are by definition collective ob-
been drawn between the capacity of the applicant State
ligations protecting interests of the international commu-
to raise the matter and the interests of the beneficiaries
nity as such. Of course, such obligations may at the same
of the obligation.733 Thus, a State invoking responsibil-
time protect the individual interests of States, as the pro-
hibition of acts of aggression protects the survival of each ity under article 48 and claiming anything more than a
State and the security of its people. Similarly, individual declaratory remedy and cessation may be called on to es-
States may be specially affected by the breach of such an tablish that it is acting in the interest of the injured party.
Where the injured party is a State, its Government will be
Article 22 of the Covenant of the League of Nations, establish- able authoritatively to represent that interest. Other cases
ing the Mandate system, was a provision in the general interest in this may present greater difficulties, which the present articles
sense, as were each of the Mandate agreements concluded in accord-
ance with it. Cf., however, the much-criticized decision of ICJ in South 0 S.S. “Wimbledon” (see footnote 34 above), p. 30.
West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 6, from 1 South West Africa, Preliminary Objections, Judgment, I.C.J.
which article 48 is a deliberate departure.
6 For the terminology “international community as a whole”,
Reports 1962, p. 319; South West Africa, Second Phase, Judgment
(see footnote 725 above).
see paragraph (18) of the commentary to article 25. Namibia case (see footnote 176 above), p. 56, para. 127.
Barcelona Traction (see footnote 25 above), p. 32, para. 33, and
See, e.g., the observations of the European Court of Human
see paragraphs (2) to (6) of the commentary to chapter III of Part Two.
Barcelona Traction (ibid.), p. 32, para. 34.
Rights in Denmark v. Turkey (friendly settlement), judgment of 5 April
2000, Reports of Judgments and Decisions 2000-IV, pp. 7, 10 and 11,
9 See footnote 54 above. paras. 20 and 23.
351
Annex 13
cannot solve.734 Paragraph 2 (b) can do no more than set to internationally wrongful conduct. At the same time, it
out the general principle. seeks to ensure, by appropriate conditions and limitations,
that countermeasures are kept within generally acceptable
(13) Paragraph 2 (b) refers to the State claiming bounds.
“[p]erformance of the obligation of reparation in accord-
ance with the preceding articles”. This makes it clear that (3) As to terminology, traditionally the term “reprisals”
article 48 States may not demand reparation in situations was used to cover otherwise unlawful action, including
where an injured State could not do so. For example, a forcible action, taken by way of self-help in response to
demand for cessation presupposes the continuation of the a breach.736 More recently, the term “reprisals” has been
wrongful act; a demand for restitution is excluded if resti- limited to action taken in time of international armed
tution itself has become impossible. conflict; i.e. it has been taken as equivalent to belliger-
ent reprisals. The term “countermeasures” covers that part
(14) Paragraph 3 subjects the invocation of State of the subject of reprisals not associated with armed con-
responsibility by States other than the injured State to flict, and in accordance with modern practice and judicial
the conditions that govern invocation by an injured State, decisions the term is used in that sense in this chapter.737
specifically article 43 (notice of claim), 44 (admissibility Countermeasures are to be contrasted with retorsion, i.e.
of claims) and 45 (loss of the right to invoke responsibil- “unfriendly” conduct which is not inconsistent with any
ity). These articles are to be read as applicable equally, international obligation of the State engaging in it even
mutatis mutandis, to a State invoking responsibility under though it may be a response to an internationally wrong-
article 48. ful act. Acts of retorsion may include the prohibition of
or limitations upon normal diplomatic relations or other
contacts, embargoes of various kinds or withdrawal of
voluntary aid programmes. Whatever their motivation, so
Chapter ii long as such acts are not incompatible with the interna-
tional obligations of the States taking them towards the
COuntermeasures target State, they do not involve countermeasures and
they fall outside the scope of the present articles. The
term “sanction” is also often used as equivalent to action
Commentary taken against a State by a group of States or mandated by
an international organization. But the term is imprecise:
Chapter VII of the Charter of the United Nations refers
(1) This chapter deals with the conditions for and limi-
only to “measures”, even though these can encompass a
tations on the taking of countermeasures by an injured
very wide range of acts, including the use of armed force
State. In other words, it deals with measures that would
(Articles 39, 41 and 42). Questions concerning the use
otherwise be contrary to the international obligations of
of force in international relations and of the legality of
an injured State vis-à-vis the responsible State, if they
belligerent reprisals are governed by the relevant primary
were not taken by the former in response to an interna-
rules. On the other hand, the articles are concerned with
tionally wrongful act by the latter in order to procure ces-
countermeasures as referred to in article 22. They are tak-
sation and reparation. Countermeasures are a feature of a
en by an injured State in order to induce the responsible
decentralized system by which injured States may seek to
State to comply with its obligations under Part Two. They
vindicate their rights and to restore the legal relationship
are instrumental in character and are appropriately dealt
with the responsible State which has been ruptured by the
with in Part Three as an aspect of the implementation of
internationally wrongful act.
State responsibility.
(2) It is recognized both by Governments and by the
decisions of international tribunals that countermeas- (4) Countermeasures are to be clearly distinguished
ures are justified under certain circumstances.735 This is from the termination or suspension of treaty relations on
reflected in article 22 which deals with countermeas- account of the material breach of a treaty by another State,
ures in response to an internationally wrongful act in the as provided for in article 60 of the 1969 Vienna Conven-
context of the circumstances precluding wrongfulness. tion. Where a treaty is terminated or suspended in accord-
Like other forms of self-help, countermeasures are liable ance with article 60, the substantive legal obligations of
to abuse and this potential is exacerbated by the factual the States parties will be affected, but this is quite differ-
inequalities between States. Chapter II has as its aim to ent from the question of responsibility that may already
establish an operational system, taking into account the have arisen from the breach.738 Countermeasures involve
exceptional character of countermeasures as a response conduct taken in derogation from a subsisting treaty
6 See, e.g., E. de Vattel, The Law of Nations, or the Principles of
See also paragraphs (3) to (4) of the commentary to article 33.

Natural Law (footnote 394 above), vol. II, chap. XVIII, p. 342.
For the substantial literature, see the bibliographies in E. Zoller, Air Service Agreement (see footnote 28 above), p. 443,
Peacetime Unilateral Remedies: An Analysis of Countermeasures
(Dobbs Ferry, N.Y., Transnational, 1984), pp. 179–189; O. Y. Ela- para. 80; United States Diplomatic and Consular Staff in Tehran
gab, The Legality of Non-Forcible Counter-Measures in International (see footnote 59 above), p. 27, para. 53; Military and Paramilitary
Law (Oxford, Clarendon Press, 1988), pp. 227–241; L.-A. Sicilianos, Activities in and against Nicaragua (see footnote 36 above), at p. 106,
Les réactions décentralisées à l’illicite: Des contre-mesures à la légi- para. 201; and Gabčíkovo-Nagymaros Project (see footnote 27 above),
time défense (Paris, Librairie générale de droit et de jurisprudence, p. 55, para. 82.
1990), pp. 501–525; and D. Alland, Justice privée et ordre juridique On the respective scope of the codified law of treaties and the
international: Etude théorique des contre-mesures en droit internation- law of State responsibility, see paragraphs (3) to (7) of the introductory
al public (Paris, Pedone, 1994). commentary to chapter V of Part One.
352
Annex 13
obligation but justified as a necessary and proportionate (7) This chapter also deals to some extent with the con-
response to an internationally wrongful act of the State ditions of the implementation of countermeasures. In par-
against which they are taken. They are essentially tem- ticular, countermeasures cannot affect any dispute settle-
porary measures, taken to achieve a specified end, whose ment procedure which is in force between the two States
justification terminates once the end is achieved. and applicable to the dispute (art. 50, para. 2 (a)). Nor
can they be taken in such a way as to impair diplomatic or
consular inviolability (art. 50, para. 2 (b)). Countermeas-
(5) This chapter does not draw any distinction between ures must be preceded by a demand by the injured State
what are sometimes called “reciprocal countermeasures” that the responsible State comply with its obligations un-
and other measures. That term refers to countermeasures der Part Two, must be accompanied by an offer to negoti-
which involve suspension of performance of obligations ate, and must be suspended if the internationally wrongful
towards the responsible State “if such obligations corre- act has ceased and the dispute is submitted in good faith
spond to, or are directly connected with, the obligation to a court or tribunal with the authority to make decisions
breached”.739 There is no requirement that States taking binding on the parties (art. 52, para. 3).
countermeasures should be limited to suspension of per-
formance of the same or a closely related obligation.740 A
number of considerations support this conclusion. First, (8) The focus of the chapter is on countermeasures tak-
for some obligations, for example those concerning the en by injured States as defined in article 42. Occasions
protection of human rights, reciprocal countermeasures have arisen in practice of countermeasures being taken by
are inconceivable. The obligations in question have a non- other States, in particular those identified in article 48,
where no State is injured or else on behalf of and at the re-
reciprocal character and are not only due to other States
quest of an injured State. Such cases are controversial and
but to the individuals themselves.741 Secondly, a limitation
the practice is embryonic. This chapter does not purport
to reciprocal countermeasures assumes that the injured to regulate the taking of countermeasures by States other
State will be in a position to impose the same or related than the injured State. It is, however, without prejudice to
measures as the responsible State, which may not be so. the right of any State identified in article 48, paragraph 1,
The obligation may be a unilateral one or the injured State to take lawful measures against a responsible State to en-
may already have performed its side of the bargain. Above sure cessation of the breach and reparation in the interest
all, considerations of good order and humanity preclude of the injured State or the beneficiaries of the obligation
many measures of a reciprocal nature. This conclusion breached (art. 54).
does not, however, end the matter. Countermeasures are
more likely to satisfy the requirements of necessity and
proportionality if they are taken in relation to the same or (9) In common with other chapters of these articles,
a closely related obligation, as in the Air Service Agree- the provisions on countermeasures are residual and may
ment arbitration.742 be excluded or modified by a special rule to the contrary
(see article 55). Thus, a treaty provision precluding the
suspension of performance of an obligation under any cir-
(6) This conclusion reinforces the need to ensure that cumstances will exclude countermeasures with respect to
countermeasures are strictly limited to the requirements the performance of the obligation. Likewise, a regime for
of the situation and that there are adequate safeguards dispute resolution to which States must resort in the event
against abuse. Chapter II seeks to do this in a variety of of a dispute, especially if (as with the WTO dispute settle-
ways. First, as already noted, it concerns only non-forci- ment system) it requires an authorization to take measures
ble countermeasures (art. 50, para. 1 (a)). Secondly, coun- in the nature of countermeasures in response to a proven
termeasures are limited by the requirement that they be breach.743
directed at the responsible State and not at third parties
(art. 49, paras. 1 and 2). Thirdly, since countermeasures
are intended as instrumental—in other words, since they Article 49. Object and limits of countermeasures
are taken with a view to procuring cessation of and repa-
ration for the internationally wrongful act and not by way
of punishment—they are temporary in character and must 1. An injured State may only take countermeas-
be as far as possible reversible in their effects in terms ures against a State which is responsible for an inter-
of future legal relations between the two States (arts. 49, nationally wrongful act in order to induce that State to
paras. 2 and 3, and 53). Fourthly, countermeasures must comply with its obligations under Part Two.
be proportionate (art. 51). Fifthly, they must not involve
any departure from certain basic obligations (art. 50, 2. Countermeasures are limited to the non-per-
para. 1), in particular those under peremptory norms of formance for the time being of international obliga-
general international law. tions of the State taking the measures towards the
responsible State.
9 See the sixth report of the Special Rapporteur on State respon-
sibility, William Riphagen, article 8 of Part Two of the draft articles, 3. Countermeasures shall, as far as possible, be
Yearbook … 1985, vol. II (Part One), p. 10, document A/CN.4/389. taken in such a way as to permit the resumption of
0 Contrast the exception of non-performance in the law of treaties,
performance of the obligations in question.
which is so limited: see paragraph (9) of the introductory commentary
to chapter V of Part One. See Marrakesh Agreement establishing the World Trade Organi-
1 Cf. Ireland v. the United Kingdom (footnote 236 above).
zation, annex 2 (Understanding on Rules and Procedures governing the
See footnote 28 above. Settlement of Disputes), arts. 1, 3, para. 7, and 22.
353
Annex 13
Commentary (4) A second essential element of countermeasures is

that they “must be directed against”748 a State which has
committed an internationally wrongful act, and which has
(1) Article 49 describes the permissible object of coun- not complied with its obligations of cessation and repara-
termeasures taken by an injured State against the re- tion under Part Two of the present articles.749 The word
sponsible State and places certain limits on their scope. “only” in paragraph 1 applies equally to the target of the
Countermeasures may only be taken by an injured State countermeasures as to their purpose and is intended to
in order to induce the responsible State to comply with its convey that countermeasures may only be adopted against
obligations under Part Two, namely, to cease the interna- a State which is the author of the internationally wrongful
tionally wrongful conduct, if it is continuing, and to pro- act. Countermeasures may not be directed against States
vide reparation to the injured State.744 Countermeasures other than the responsible State. In a situation where a
are not intended as a form of punishment for wrongful third State is owed an international obligation by the State
conduct, but as an instrument for achieving compliance taking countermeasures and that obligation is breached by
with the obligations of the responsible State under Part the countermeasure, the wrongfulness of the measure is
Two. The limited object and exceptional nature of coun- not precluded as against the third State. In that sense the
termeasures are indicated by the use of the word “only” in effect of countermeasures in precluding wrongfulness is
paragraph 1 of article 49. relative. It concerns the legal relations between the injured
State and the responsible State.750
(2) A fundamental prerequisite for any lawful counter- (5) This does not mean that countermeasures may not
measure is the existence of an internationally wrongful act incidentally affect the position of third States or indeed
which injured the State taking the countermeasure. This other third parties. For example, if the injured State sus-
point was clearly made by ICJ in the Gabčíkovo Nagy- pends transit rights with the responsible State in accord-
maros Project case, in the following passage: ance with this chapter, other parties, including third States,
may be affected thereby. If they have no individual rights
In order to be justifiable, a countermeasure must meet certain condi- in the matter they cannot complain. The same is true if, as
tions … a consequence of suspension of a trade agreement, trade
with the responsible State is affected and one or more
In the first place it must be taken in response to a previous interna- companies lose business or even go bankrupt. Such indi-
tional wrongful act of another State and must be directed against that
State.
rect or collateral effects cannot be entirely avoided.
(6) In taking countermeasures, the injured State effec-

(3) Paragraph 1 of article 49 presupposes an objective tively withholds performance for the time being of one or
standard for the taking of countermeasures, and in par- more international obligations owed by it to the responsi-
ticular requires that the countermeasure be taken against a ble State, and paragraph 2 of article 49 reflects this ele-
State which is responsible for an internationally wrongful ment. Although countermeasures will normally take the
act in order to induce that State to comply with its obli- form of the non-performance of a single obligation, it is
gations of cessation and reparation. A State taking coun- possible that a particular measure may affect the perform-
termeasures acts at its peril, if its view of the question of ance of several obligations simultaneously. For this rea-
wrongfulness turns out not to be well founded. A State son, paragraph 2 refers to “obligations” in the plural. For
which resorts to countermeasures based on its unilateral example, freezing of the assets of a State might involve
assessment of the situation does so at its own risk and what would otherwise be the breach of several obligations
may incur responsibility for its own wrongful conduct in to that State under different agreements or arrangements.
the event of an incorrect assessment.746 In this respect, Different and coexisting obligations might be affected by
there is no difference between countermeasures and other the same act. The test is always that of proportionality, and
circumstances precluding wrongfulness.747 a State which has committed an internationally wrongful
act does not thereby make itself the target for any form
For these obligations, see articles 30 and 31 and commentaries. or combination of countermeasures, irrespective of their
Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 55, severity or consequences.751
para. 83. See also “Naulilaa” (footnote 337 above), p. 1027; “Cysne”
(footnote 338 above), p. 1057. At the 1930 Hague Conference, all (7) The phrase “for the time being” in paragraph 2 in-
States which responded on this point took the view that a prior wrong-
ful act was an indispensable prerequisite for the adoption of reprisals; dicates the temporary or provisional character of counter-
see League of Nations, Conference for the Codification of International measures. Their aim is the restoration of a condition of
Law, Bases of Discussion … (footnote 88 above), p. 128. legality as between the injured State and the responsible
6 The tribunal’s remark in the Air Service Agreement case (see foot-
note 28 above), to the effect that “each State establishes for itself its Gabčíkovo-Nagymaros Project (see footnote 27 above), pp. 55–
legal situation vis-à-vis other States” (p. 443, para. 81) should not be 56, para. 83.
interpreted in the sense that the United States would have been justified 9 In the Gabčíkovo-Nagymaros Project case ICJ held that the
in taking countermeasures whether or not France was in breach of the
Agreement. In that case the tribunal went on to hold that the United requirement had been satisfied, in that Hungary was in continuing
States was actually responding to a breach of the Agreement by France, breach of its obligations under a bilateral treaty, and Czechoslovakia’s
and that its response met the requirements for countermeasures under response was directed against it on that ground.
international law, in particular in terms of purpose and proportional- 0 On the specific question of human rights obligations, see
ity. The tribunal did not decide that an unjustified belief by the United article 50, paragraph (1) (b), and commentary.
States as to the existence of a breach would have been sufficient. 1 See article 51 and commentary. In addition, the performance of
See paragraph (8) of the introductory commentary to chapter V certain obligations may not be withheld by way of countermeasures in
of Part One. any circumstances: see article 50 and commentary.
354
Annex 13
State, and not the creation of new situations which cannot to punishment or a sanction for non-compliance, not a
be rectified whatever the response of the latter State to the countermeasure as conceived in the articles. The phrase
claims against it.752 Countermeasures are taken as a form “as far as possible” in paragraph 3 indicates that if the
of inducement, not punishment: if they are effective in in- injured State has a choice between a number of lawful
ducing the responsible State to comply with its obligations and effective countermeasures, it should select one which
of cessation and reparation, they should be discontinued permits the resumption of performance of the obligations
and performance of the obligation resumed. suspended as a result of countermeasures.
(8) Paragraph 1 of article 49 refers to the obligations of

the responsible State “under Part Two”. It is to ensuring Article 50. Obligations not affected
the performance of these obligations that countermeas- by countermeasures
ures are directed. In many cases the main focus of coun-
termeasures will be to ensure cessation of a continuing 1. Countermeasures shall not affect:
wrongful act, but they may also be taken to ensure repara-
tion, provided the other conditions laid down in chapter II (a) the obligation to refrain from the threat or use
are satisfied. Any other conclusion would immunize from of force as embodied in the Charter of the United
countermeasures a State responsible for an internationally Nations;
wrongful act if the act had ceased, irrespective of the seri-
(b) obligations for the protection of fundamental
ousness of the breach or its consequences, or of the State’s
human rights;
refusal to make reparation for it. In this context an issue
arises whether countermeasures should be available where (c) obligations of a humanitarian character prohib-
there is a failure to provide satisfaction as demanded by iting reprisals;
the injured State, given the subsidiary role this remedy
plays in the spectrum of reparation.753 In normal situa- (d) other obligations under peremptory norms of
tions, satisfaction will be symbolic or supplementary and general international law.
it would be highly unlikely that a State which had ceased
the wrongful act and tendered compensation to the injured 2. A State taking countermeasures is not relieved
State could properly be made the target of countermeas- from fulfilling its obligations:
ures for failing to provide satisfaction as well. This con- (a) under any dispute settlement procedure appli-
cern may be adequately addressed by the application of cable between it and the responsible State;
the notion of proportionality set out in article 51.754
(b) to respect the inviolability of diplomatic or con-
sular agents, premises, archives and documents.
(9) Paragraph 3 of article 49 is inspired by article 72,
paragraph 2, of the 1969 Vienna Convention, which pro-
vides that when a State suspends a treaty it must not, dur- Commentary
ing the suspension, do anything to preclude the treaty
from being brought back into force. By analogy, States (1) Article 50 specifies certain obligations the perform-
should as far as possible choose countermeasures that are ance of which may not be impaired by countermeasures.
reversible. In the Gabčíkovo-Nagymaros Project case, the An injured State is required to continue to respect these
existence of this condition was recognized by the Court, obligations in its relations with the responsible State, and
although it found that it was not necessary to pronounce may not rely on a breach by the responsible State of its
on the matter. After concluding that “the diversion of the obligations under Part Two to preclude the wrongfulness
Danube carried out by Czechoslovakia was not a lawful of any non-compliance with these obligations. So far as
countermeasure because it was not proportionate”, the the law of countermeasures is concerned, they are sacro-
Court said: sanct.
It is therefore not required to pass upon one other condition for the law-
fulness of a countermeasure, namely that its purpose must be to induce (2) The obligations dealt with in article 50 fall into two
the wrongdoing State to comply with its obligations under international basic categories. Paragraph 1 deals with certain obliga-
law, and that the measure must therefore be reversible. tions which, by reason of their character, must not be
the subject of countermeasures at all. Paragraph 2 deals
However, the duty to choose measures that are reversible with certain obligations relating in particular to the main-
is not absolute. It may not be possible in all cases to re- tenance of channels of communication between the two
verse all of the effects of countermeasures after the occa- States concerned, including machinery for the resolution
sion for taking them has ceased. For example, a require- of their disputes.
ment of notification of some activity is of no value after
the activity has been undertaken. By contrast, inflicting
(3) Paragraph 1 of article 50 identifies four categories
irreparable damage on the responsible State could amount
of fundamental substantive obligations which may not be
This notion is further emphasized by articles 49, paragraph 3, affected by countermeasures: (a) the obligation to refrain
and 53 (termination of countermeasures). from the threat or use of force as embodied in the Charter
See paragraph (1) of the commentary to article 37. of the United Nations; (b) obligations for the protection
Similar considerations apply to assurances and guarantees of non- of fundamental human rights; (c) obligations of a humani-
repetition. See article 30, subparagraph (b), and commentary. tarian character prohibiting reprisals; and (d) other obli-
Gabčíkovo-Nagymaros Project (see footnote 27 above), pp. 56– gations under peremptory norms of general international
57, para. 87. law.
355
Annex 13
(4) Paragraph 1 (a) deals with the prohibition of the Economic, Social and Cultural Rights”,763 and went on to
threat or use of force as embodied in the Charter of the state that:
United Nations, including the express prohibition of the it is essential to distinguish between the basic objective of applying
use of force in Article 2, paragraph 4. It excludes forcible political and economic pressure upon the governing elite of a country to
measures from the ambit of permissible countermeasures persuade them to conform to international law, and the collateral inflic-
under chapter II. tion of suffering upon the most vulnerable groups within the targeted
country.6
(5) The prohibition of forcible countermeasures is Analogies can be drawn from other elements of general
spelled out in the Declaration on Principles of Interna- international law. For example, paragraph 1 of article 54
tional Law concerning Friendly Relations and Coopera- of the Protocol Additional to the Geneva Conventions of
tion among States in accordance with the Charter of the 12 August 1949, and relating to the protection of victims
United Nations, by which the General Assembly proof international armed conflicts (Protocol I) stipulates un-
claimed that “States have a duty to refrain from acts of conditionally that “[s]tarvation of civilians as a method of
reprisal involving the use of force”.756 The prohibition is warfare is prohibited”.765 Likewise, the final sentence of
also consistent with the prevailing doctrine as well as a paragraph 2 of article 1 of the International Covenant on
number of authoritative pronouncements of international Economic, Social and Cultural Rights and of the Interna-
judicial757 and other bodies.758 tional Covenant on Civil and Political Rights states that
“In no case may a people be deprived of its own means of
(6) Paragraph 1 (b) provides that countermeasures may subsistence”.
not affect obligations for the protection of fundamental
human rights. In the “Naulilaa” arbitration, the tribunal (8) Paragraph 1 (c) deals with the obligations of hu-
stated that a lawful countermeasure must be “limited by manitarian law with regard to reprisals and is modelled on
the requirements of humanity and the rules of good faith article 60, paragraph 5, of the 1969 Vienna Convention.766
applicable in relations between States”.759 The Institut de The paragraph reflects the basic prohibition of reprisals
droit international in its 1934 resolution stated that in tak- against individuals, which exists in international humani-
ing countermeasures a State must “abstain from any harsh tarian law. In particular, under the Geneva Convention
measure which would be contrary to the laws of human- relative to the Treatment of Prisoners of War of 1929, the
ity or the demands of the public conscience”.760 This has Geneva Conventions of 12 August 1949 and the Protocol
been taken further as a result of the development since Additional to the Geneva Conventions of 12 August 1949,
1945 of international human rights. In particular, the rel- and relating to the protection of victims of international
evant human rights treaties identify certain human rights armed conflicts (Protocol I) of 1977, reprisals are pro-
which may not be derogated from even in time of war or hibited against defined classes of protected persons, and
other public emergency.761 these prohibitions are very widely accepted.767
(7) In its general comment No. 8 (1997) the Commit- (9) Paragraph 1 (d) prohibits countermeasures affecting
tee on Economic, Social and Cultural Rights discussed obligations under peremptory norms of general interna-
the effect of economic sanctions on civilian populations tional law. Evidently, a peremptory norm, not subject to
and especially on children. It dealt both with the effect derogation as between two States even by treaty, cannot be
of measures taken by international organizations, a top- derogated from by unilateral action in the form of coun-
ic which falls outside the scope of the present articles,762 termeasures. Subparagraph (d) reiterates for the purposes
as well as with countermeasures imposed by individual of the present chapter the recognition in article 26 that
States or groups of States. It stressed that “whatever the the circumstances precluding wrongfulness elaborated in
circumstances, such sanctions should always take full ac- chapter V of Part One do not affect the wrongfulness of
count of the provisions of the International Covenant on any act of a State which is not in conformity with an obli-
gation arising under a peremptory norm of general inter-
6 General Assembly resolution 2625 (XXV), annex, first princi- national law. The reference to “other” obligations under
ple. The Final Act of the Conference on Security and Co-operation in
Europe also contains an explicit condemnation of forcible measures. 6 E/C.12/1997/8, para. 1.
Part of Principle II of the Declaration on Principles Guiding Relations 6 Ibid.,
between Participating States embodied in the first “Basket” of that para. 4.
6 See also paragraph 2 of article 54 (“objects indispensable to the
Final Act reads: “Likewise [the participating States] will also refrain
in their mutual relations from any act of reprisal by force.” survival of the civilian population”) and article 75. See also Protocol
See especially Corfu Channel, Merits (footnote 35 above), Additional to the Geneva Conventions of 12 August 1949, and relat-
p. 35; and Military and Paramilitary Activities in and against Nicara- ing to the protection of victims of non-international armed conflicts
gua (footnote 36 above), p. 127, para. 249. (Protocol II).
See, e.g., Security Council resolutions 111 (1956) of 19 January 66 Paragraph 5 of article 60 of the 1969 Vienna Convention pre-
1956, 171 (1962) of 9 April 1962, 188 (1964) of 9 April 1964, 316 cludes a State from suspending or terminating for material breach
(1972) of 26 June 1972, 332 (1973) of 21 April 1973, 573 (1985) of any treaty provision “relating to the protection of the human person
4 October 1985 and 1322 (2000) of 7 October 2000. See also General contained in treaties of a humanitarian character, in particular to pro-
Assembly resolution 41/38 of 20 November 1986. visions prohibiting any form of reprisals against persons protected by
9 “Naulilaa” (see footnote 337 above), p. 1026. such treaties”. This paragraph was added at the Vienna Conference on
60 Annuaire de l’Institut de droit international, vol. 38 (1934),
the Law of Treaties on a vote of 88 votes in favour, none against and
7 abstentions.
p. 710. 6 See K. J. Partsch, “Reprisals”, Encyclopedia of Public Inter-
61 See article 4 of the International Covenant on Civil and Political
national Law, R. Bernhardt, ed. (Amsterdam, Elsevier, 2000), vol. 4,
Rights; article 15 of the European Convention on Human Rights; and p. 200, at pp. 203–204; and S. Oeter, “Methods and means of combat”,
article 27 of the American Convention on Human Rights. D. Fleck, ed., op. cit. (footnote 409 above) p. 105, at pp. 204–207, paras.
6 See below, article 59 and commentary. 476–479, with references to relevant provisions.
356
Annex 13
peremptory norms makes it clear that subparagraph (d) respect to diplomatic and consular inviolability. The justi-
does not qualify the preceding subparagraphs, some of fication in each case concerns not so much the substantive
which also encompass norms of a peremptory character. character of the obligation but its function in relation to
In particular, subparagraphs (b) and (c) stand on their own. the resolution of the dispute between the parties which has
Subparagraph (d) allows for the recognition of further given rise to the threat or use of countermeasures.
peremptory norms creating obligations which may not be
the subject of countermeasures by an injured State.768 (12) The first of these, contained in paragraph 2 (a),
applies to “any dispute settlement procedure applicable”
(10) States may agree between themselves on other between the injured State and the responsible State. This
rules of international law which may not be the subject phrase refers only to dispute settlement procedures that are
of countermeasures, whether or not they are regarded as related to the dispute in question and not to other unrelated
peremptory norms under general international law. This issues between the States concerned. For this purpose the
possibility is covered by the lex specialis provision in ar- dispute should be considered as encompassing both the
ticle 55 rather than by the exclusion of countermeasures initial dispute over the internationally wrongful act and
under article 50, paragraph 1 (d). In particular, a bilateral the question of the legitimacy of the countermeasure(s)
or multilateral treaty might renounce the possibility of taken in response.
countermeasures being taken for its breach, or in relation
to its subject matter. This is the case, for example, with the (13) It is a well-established principle that dispute settle-
European Union treaties, which have their own system of ment provisions must be upheld notwithstanding that they
enforcement.769 Under the dispute settlement system of are contained in a treaty which is at the heart of the dis-
WTO, the prior authorization of the Dispute Settlement pute and the continued validity or effect of which is chal-
Body is required before a member can suspend conces- lenged. As ICJ said in Appeal Relating to the Jurisdiction
sions or other obligations under the WTO agreements in of the ICAO Council:
response to a failure of another member to comply with
recommendations and rulings of a WTO panel or the Nor in any case could a merely unilateral suspension per se render ju-
risdictional clauses inoperative, since one of their purposes might be,
Appellate Body.770 Pursuant to article 23 of the WTO Dis- precisely, to enable the validity of the suspension to be tested.
pute Settlement Understanding (DSU), members seeking
“the redress of a violation of obligations or other nullifi- Similar reasoning underlies the principle that dispute set-
cation or impairment of benefits” under the WTO agree- tlement provisions between the injured and the responsible
ments, “shall have recourse to, and abide by” the DSU State and applicable to their dispute may not be suspended
rules and procedures. This has been construed both as by way of countermeasures. Otherwise, unilateral action
an “exclusive dispute resolution clause” and as a clause would replace an agreed provision capable of resolving
“preventing WTO members from unilaterally resolving the dispute giving rise to the countermeasures. The point
their disputes in respect of WTO rights and obligations”.771 was affirmed by the Court in the United States Diplomatic
To the extent that derogation clauses or other treaty pro- and Consular Staff in Tehran case:
visions (e.g. those prohibiting reservations) are properly
In any event, any alleged violation of the Treaty [of Amity] by either
interpreted as indicating that the treaty provisions are party could not have the effect of precluding that party from invoking
“intransgressible”,772 they may entail the exclusion of the provisions of the Treaty concerning pacific settlement of disputes.
countermeasures.
(14) The second exception in paragraph 2 (b) limits the
(11) In addition to the substantive limitations on the tak- extent to which an injured State may resort, by way of
ing of countermeasures in paragraph 1 of article 50, para- countermeasures, to conduct inconsistent with its obliga-
graph 2 provides that countermeasures may not be taken tions in the field of diplomatic or consular relations. An
with respect to two categories of obligations, viz. certain injured State could envisage action at a number of levels.
obligations under dispute settlement procedures applicable To declare a diplomat persona non grata, to terminate
between it and the responsible State, and obligations with or suspend diplomatic relations, to recall ambassadors in
situations provided for in the Vienna Convention on Dip-
lomatic Relations—such acts do not amount to counter-
6 See paragraphs (4) to (6) of the commentary to article 40. measures in the sense of this chapter. At a second level,
69 On the exclusion of unilateral countermeasures in European measures may be taken affecting diplomatic or consular
Union law, see, for example, joined cases 90 and 91-63 (Commission privileges, not prejudicing the inviolability of diplomatic
of the European Economic Community v. Grand Duchy of Luxembourg
and Kingdom of Belgium), Reports of cases before the Court, p. 625, at or consular personnel or of premises, archives and docu-
p. 631 (1964); case 52/75 (Commission of the European Communities ments. Such measures may be lawful as countermeasures
v. Italian Republic), ibid., p. 277, at p. 284 (1976); case 232/78 if the requirements of this chapter are met. On the other
(Commission of the European Economic Communities v. French Re- hand, the scope of prohibited countermeasures under ar-
public), ibid., p. 2729 (1979); and case C-5/94 (The Queen. v. Ministry ticle 50, paragraph 2 (b), is limited to those obligations
of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland)
Ltd.), Reports of cases before the Court of Justice and the Court of First which are designed to guarantee the physical safety and
Instance, p. I–2553 (1996). inviolability (including the jurisdictional immunity) of
0 See Marrakesh Agreement establishing the World Trade Organi- diplomatic agents, premises, archives and documents in
zation, annex 2 (Understanding on Rules and Procedures governing the
Settlement of Disputes), arts. 3, para. 7 and 22. Appeal Relating to the Jurisdiction of the ICAO Council (India
1 See WTO, Report of the Panel, United States–Sections 301–310 v. Pakistan), Judgment, I.C.J. Reports 1972, p. 46, at p. 53. See also
of the Trade Act of 1974 (footnote 73 above), paras. 7.35–7.46. S. M. Schwebel, International Arbitration: Three Salient Problems
To use the synonym adopted by ICJ in its advisory opinion on (Cambridge, Grotius, 1987), pp. 13–59.
Legality of the Threat or Use of Nuclear Weapons (see footnote 54 United States Diplomatic and Consular Staff in Tehran
above), p. 257, para. 79. (see footnote 59 above), p. 28, para. 53.
357
Annex 13
all circumstances, including armed conflict.775 The same their degree of intensity. Proportionality provides a meas-
applies, mutatis mutandis, to consular officials. ure of assurance inasmuch as disproportionate counter-
measures could give rise to responsibility on the part of
(15) In the United States Diplomatic and Consular Staff the State taking such measures.
in Tehran case, ICJ stressed that “diplomatic law itself
provides the necessary means of defence against, and (2) Proportionality is a well-established requirement
sanction for, illicit activities by members of diplomatic or for taking countermeasures, being widely recognized in
consular missions”,776 and it concluded that violations of State practice, doctrine and jurisprudence. According to
diplomatic or consular immunities could not be justified the award in the “Naulilaa” case:
even as countermeasures in response to an internationally even if one were to admit that the law of nations does not require that
wrongful act by the sending State. As the Court said: the reprisal should be approximately in keeping with the offence, one
The rules of diplomatic law, in short, constitute a self-contained regime should certainly consider as excessive and therefore unlawful reprisals
which, on the one hand, lays down the receiving State’s obligations out of all proportion to the act motivating them.9
regarding the facilities, privileges and immunities to be accorded to
diplomatic missions and, on the other, foresees their possible abuse by (3) In the Air Service Agreement arbitration,780 the issue
members of the mission and specifies the means at the disposal of the of proportionality was examined in some detail. In that
receiving State to counter any such abuse. case there was no exact equivalence between France’s re-
fusal to allow a change of gauge in London on flights from
If diplomatic or consular personnel could be targeted by the west coast of the United States and the United States’
way of countermeasures, they would in effect constitute countermeasure which suspended Air France flights to
resident hostages against perceived wrongs of the send- Los Angeles altogether. The tribunal nonetheless held the
ing State, undermining the institution of diplomatic and United States measures to be in conformity with the prin-
consular relations. The exclusion of any countermeasures ciple of proportionality because they “do not appear to be
infringing diplomatic and consular inviolability is thus clearly disproportionate when compared to those taken by
justified on functional grounds. It does not affect the vari- France”. In particular, the majority said:
ous avenues for redress available to the receiving State
under the terms of the Vienna Convention on Diplomatic It is generally agreed that all counter-measures must, in the first in-
stance, have some degree of equivalence with the alleged breach: this
Relations and the Vienna Convention on Consular Rela- is a well-known rule … It has been observed, generally, that judging
tions.778 On the other hand, no reference need be made in the “proportionality” of counter-measures is not an easy task and can
article 50, paragraph 2 (b), to multilateral diplomacy. The at best be accomplished by approximation. In the Tribunal’s view, it is
representatives of States to international organizations are essential, in a dispute between States, to take into account not only the
covered by the reference to diplomatic agents. As for offi- injuries suffered by the companies concerned but also the importance of
the questions of principle arising from the alleged breach. The Tribunal
cials of international organizations themselves, no retali- thinks that it will not suffice, in the present case, to compare the losses
atory step taken by a host State to their detriment could suffered by Pan Am on account of the suspension of the projected serv-
qualify as a countermeasure since it would involve non- ices with the losses which the French companies would have suffered
compliance not with an obligation owed to the responsible as a result of the counter-measures; it will also be necessary to take
into account the importance of the positions of principle which were
State but with an obligation owed to a third party, i.e. the taken when the French authorities prohibited changes of gauge in third
international organization concerned. countries. If the importance of the issue is viewed within the frame-
work of the general air transport policy adopted by the United States
Government and implemented by the conclusion of a large number of
Article 51. Proportionality international agreements with countries other than France, the measures
taken by the United States do not appear to be clearly disproportionate
when compared to those taken by France. Neither Party has provided
Countermeasures must be commensurate with the the Tribunal with evidence that would be sufficient to affirm or reject
injury suffered, taking into account the gravity of the the existence of proportionality in these terms, and the Tribunal must be
internationally wrongful act and the rights in ques- satisfied with a very approximative appreciation. 1
tion.
In that case the countermeasures taken were in the same
field as the initial measures and concerned the same
Commentary routes, even if they were rather more severe in terms of
their economic effect on the French carriers than the ini-
(1) Article 51 establishes an essential limit on the taking tial French action.
of countermeasures by an injured State in any given case,
based on considerations of proportionality. It is relevant (4) The question of proportionality was again central
in determining what countermeasures may be applied and to the appreciation of the legality of possible counter-
measures taken by Czechoslovakia in the Gabčíkovo-
Nagymaros Project case.782 ICJ, having accepted that
See, e.g., Vienna Convention on Diplomatic Relations, arts. 22,
24, 29, 44 and 45. 9 “Naulilaa”
6 United States Diplomatic and Consular Staff in Tehran (see (see footnote 337 above), p. 1028.
0 Air Service Agreement (see footnote 28 above), para. 83.
footnote 59 above), p. 38, para. 83.
Ibid., p. 40, para. 86. Cf. article 45, subparagraph (a), of the 1 Ibid.; Reuter, dissenting, accepted the tribunal’s legal analysis of
Vienna Convention on Diplomatic Relations; article 27, paragraph 1 proportionality but suggested that there were “serious doubts on the
(a), of the Vienna Convention on Consular Relations (premises, prop- proportionality of the counter-measures taken by the United States,
erty and archives to be protected “even in case of armed conflict”). which the tribunal has been unable to assess definitely” (p. 448).
See articles 9, 11, 26, 36, paragraph 2, 43 (b) and 47, para- Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 56,
graph 2 (a), of the Vienna Convention on Diplomatic Relations; and paras. 85 and 87, citing Territorial Jurisdiction of the International
articles 10, paragraph 2, 12, 23, 25 (b) and (c) and article 35, para- Commission of the River Oder, Judgment No. 16, 1929, P.C.I.J., Series
graph (3), of the Vienna Convention on Consular Relations. A, No. 23, p. 27.
358
Annex 13
Hungary’s actions in refusing to complete the Project requirement of purpose specified in article 49: a clearly
amounted to an unjustified breach of the Treaty on the disproportionate measure may well be judged not to have
Construction and Operation of the Gabčíkovo-Nagymaros been necessary to induce the responsible State to comply
Barrage System of 1977, went on to say: with its obligations but to have had a punitive aim and to
fall outside the purpose of countermeasures enunciated in
In the view of the Court, an important consideration is that the ef- article 49. Proportionality is, however, a limitation even
fects of a countermeasure must be commensurate with the injury suf- on measures which may be justified under article 49. In
fered, taking account of the rights in question.
every case a countermeasure must be commensurate with
In 1929, the Permanent Court of International Justice, with regard to the injury suffered, including the importance of the issue
navigation on the River Oder, stated as follows: of principle involved and this has a function partly inde-
“[the] community of interest in a navigable river becomes the ba- pendent of the question whether the countermeasure was
sis of a common legal right, the essential features of which are the necessary to achieve the result of ensuring compliance.
perfect equality of all riparian States in the user [sic] of the whole
course of the river and the exclusion of any preferential privilege of
any one riparian State in relation to the others”... Article 52. Conditions relating to resort
Modern development of international law has strengthened this to countermeasures
principle for non-navigational uses of international watercourses as
well ... 1. Before taking countermeasures, an injured
The Court considers that Czechoslovakia, by unilaterally assum- State shall:
ing control of a shared resource, and thereby depriving Hungary of its
right to an equitable and reasonable share of the natural resources of the (a) call upon the responsible State, in accordance
Danube—with the continuing effects of the diversion of these waters on with article 3, to fulfil its obligations under Part
the ecology of the riparian area of the Szigetköz—failed to respect the Two;
proportionality which is required by international law ...
(b) notify the responsible State of any decision to
The Court thus considers that the diversion of the Danube carried
out by Czechoslovakia was not a lawful countermeasure because it was
take countermeasures and offer to negotiate with that
not proportionate. State.
Thus, the Court took into account the quality or character 2. Notwithstanding paragraph 1 (b), the injured
of the rights in question as a matter of principle and (like State may take such urgent countermeasures as are
the tribunal in the Air Service Agreement case) did not necessary to preserve its rights.
assess the question of proportionality only in quantitative
terms. 3. Countermeasures may not be taken, and if al-
ready taken must be suspended without undue delay
(5) In other areas of the law where proportionality is if:
relevant (e.g. self-defence), it is normal to express the re-
quirement in positive terms, even though, in those areas (a) the internationally wrongful act has ceased;
as well, what is proportionate is not a matter which can and
be determined precisely.783 The positive formulation of (b) the dispute is pending before a court or tribunal
the proportionality requirement is adopted in article 51. which has the authority to make decisions binding on
A negative formulation might allow too much latitude, in the parties.
a context where there is concern as to the possible abuse
of countermeasures.
. Paragraph 3 does not apply if the responsible
State fails to implement the dispute settlement proce-
(6) Considering the need to ensure that the adoption of dures in good faith.
countermeasures does not lead to inequitable results, pro-
portionality must be assessed taking into account not only
the purely “quantitative” element of the injury suffered, Commentary
but also “qualitative” factors such as the importance of the
interest protected by the rule infringed and the seriousness (1) Article 52 lays down certain procedural conditions
of the breach. Article 51 relates proportionality primarily relating to the resort to countermeasures by the injured
to the injury suffered but “taking into account” two fur- State. Before taking countermeasures an injured State is
ther criteria: the gravity of the internationally wrongful required to call on the responsible State in accordance
act, and the rights in question. The reference to “the rights with article 43 to comply with its obligations under Part
in question” has a broad meaning, and includes not only Two. The injured State is also required to notify the re-
the effect of a wrongful act on the injured State but also sponsible State that it intends to take countermeasures and
on the rights of the responsible State. Furthermore, the to offer to negotiate with that State. Notwithstanding this
position of other States which may be affected may also second requirement, the injured State may take certain ur-
be taken into consideration. gent countermeasures to preserve its rights. If the respon-
sible State has ceased the internationally wrongful act and
(7) Proportionality is concerned with the relationship the dispute is before a competent court or tribunal, coun-
between the internationally wrongful act and the counter- termeasures may not be taken; if already taken, they must
measure. In some respects proportionality is linked to the be suspended. However, this requirement does not apply if
the responsible State fails to implement dispute settlement
E. Cannizzaro, Il principio della proporzionalità nell’ordina- procedures in good faith. In such a case countermeasures
mento internazionale (Milan, Giuffrè, 2000). do not have to be suspended and may be resumed.
359
Annex 13
(2) Overall, article 52 seeks to establish reasonable pro- and (b) of paragraph 1 is not strict. Notifications could be
cedural conditions for the taking of countermeasures in a made close to each other or even at the same time.
context where compulsory third party settlement of dis-
putes may not be available, immediately or at all.784 At the (6) Under paragraph 2, however, the injured State may
same time, it needs to take into account the possibility that take “such urgent countermeasures as are necessary to
there may be an international court or tribunal with au- preserve its rights” even before any notification of the
thority to make decisions binding on the parties in relation intention to do so. Under modern conditions of commu-
to the dispute. Countermeasures are a form of self-help, nications, a State which is responsible for an internation-
which responds to the position of the injured State in an ally wrongful act and which refuses to cease that act or
international system in which the impartial settlement of provide any redress therefore may also seek to immunize
disputes through due process of law is not yet guaranteed. itself from countermeasures, for example by withdrawing
Where a third party procedure exists and has been invoked assets from banks in the injured State. Such steps can be
by either party to the dispute, the requirements of that pro- taken within a very short time, so that the notification re-
cedure, e.g. as to interim measures of protection, should quired by paragraph 1 (b) might frustrate its own purpose.
substitute as far as possible for countermeasures. On the Hence, paragraph 2 allows for urgent countermeasures
other hand, even where an international court or tribunal which are necessary to preserve the rights of the injured
has jurisdiction over a dispute and authority to indicate State: this phrase includes both its rights in the subject
interim measures of protection, it may be that the respon- matter of the dispute and its right to take countermeas-
sible State is not cooperating in that process. In such cases ures. Temporary stay orders, the temporary freezing of as-
the remedy of countermeasures necessarily revives. sets and similar measures could fall within paragraph 2,
depending on the circumstances.
(3) The system of article 52 builds upon the observa-
tions of the tribunal in the Air Service Agreement arbi- (7) Paragraph 3 deals with the case in which the wrong-
tration.785 The first requirement, set out in paragraph 1 ful act has ceased and the dispute is submitted to a court
(a), is that the injured State must call on the responsible or tribunal which has the authority to decide it with bind-
State to fulfil its obligations of cessation and reparation ing effect for the parties. In such a case, and for so long
before any resort to countermeasures. This requirement as the dispute settlement procedure is being implemented
(sometimes referred to as “sommation”) was stressed both in good faith, unilateral action by way of countermeas-
by the tribunal in the Air Service Agreement arbitration786 ures is not justified. Once the conditions in paragraph 3
and by ICJ in the Gabčíkovo-Nagymaros Project case.787 are met, the injured State may not take countermeasures;
It also appears to reflect a general practice.788 if already taken, they must be suspended “without undue
delay”. The phrase “without undue delay” allows a lim-
(4) The principle underlying the notification require- ited tolerance for the arrangements required to suspend
ment is that, considering the exceptional nature and po- the measures in question.
tentially serious consequences of countermeasures, they
should not be taken before the other State is given notice (8) A dispute is not “pending before a court or tribunal”
of a claim and some opportunity to present a response. In for the purposes of paragraph 3 (b) unless the court or
practice, however, there are usually quite extensive and tribunal exists and is in a position to deal with the case.
detailed negotiations over a dispute before the point is For these purposes a dispute is not pending before an ad
reached where some countermeasures are contemplated. hoc tribunal established pursuant to a treaty until the tri-
In such cases the injured State will already have notified bunal is actually constituted, a process which will take
the responsible State of its claim in accordance with arti- some time even if both parties are cooperating in the ap-
cle 43, and it will not have to do it again in order to com- pointment of the members of the tribunal.789 Paragraph
ply with paragraph 1 (a). 3 is based on the assumption that the court or tribunal to
which it refers has jurisdiction over the dispute and also
(5) Paragraph 1 (b) requires that the injured State which the power to order provisional measures. Such power is
decides to take countermeasures should notify the re- a normal feature of the rules of international courts and
sponsible State of that decision to take countermeasures tribunals.790 The rationale behind paragraph 3 is that once
and offer to negotiate with that State. Countermeasures the parties submit their dispute to such a court or tribunal
can have serious consequences for the target State, which for resolution, the injured State may request it to order
should have the opportunity to reconsider its position provisional measures to protect its rights. Such a request,
faced with the proposed countermeasures. The temporal provided the court or tribunal is available to hear it, will
relationship between the operation of subparagraphs (a) perform a function essentially equivalent to that of coun-
termeasures. Provided the order is complied with it will
See above, paragraph (7) of the commentary to the present 9 Hence, paragraph 5 of article 290 of the United Nations Conven-
chapter. tion on the Law of the Sea provides for ITLOS to deal with provisional
Air Service Agreement (see footnote 28 above), pp. 445–446, measures requests “[p]ending the constitution of an arbitral tribunal to
paras. 91 and 94–96. which the dispute is being submitted”.
6 Ibid., p. 444, paras. 85–87. 90 The binding effect of provisional measures orders under Part XI
Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 56,

of the United Nations Convention on the Law of the Sea is assured
by paragraph 6 of article 290. For the binding effect of provisional
para. 84. measures orders under Article 41 of the Statute of ICJ, see the deci-
A. Gianelli, Adempimenti preventivi all’adozione di contromisure sion in LaGrand, Judgment (footnote 119 above), pp. 501–504,
internazionali (Milan, Giuffrè, 1997). paras. 99–104.
360
Annex 13
make countermeasures unnecessary pending the decision Article 54. Measures taken by States other
of the tribunal. The reference to a “court or tribunal” is than an injured State
intended to refer to any third party dispute settlement pro-
cedure, whatever its designation. It does not, however, re- This chapter does not prejudice the right of any
fer to political organs such as the Security Council. Nor State, entitled under article , paragraph 1, to invoke
does it refer to a tribunal with jurisdiction between a pri- the responsibility of another State, to take lawful meas-
vate party and the responsible State, even if the dispute ures against that State to ensure cessation of the breach
between them has given rise to the controversy between and reparation in the interest of the injured State or of
the injured State and the responsible State. In such cases, the beneficiaries of the obligation breached.
however, the fact that the underlying dispute has been
submitted to arbitration will be relevant for the purposes
of articles 49 and 51, and only in exceptional cases will Commentary
countermeasures be justified.791
(1) Chapter II deals with the right of an injured State
(9) Paragraph 4 of article 52 provides a further condition to take countermeasures against a responsible State in
for the suspension of countermeasures under paragraph order to induce that State to comply with its obligations
3. It comprehends various possibilities, ranging from an of cessation and reparation. However, “injured” States, as
initial refusal to cooperate in the procedure, for example defined in article 42, are not the only States entitled to
by non-appearance, through non-compliance with a provi- invoke the responsibility of a State for an internationally
sional measures order, whether or not it is formally bind- wrongful act under chapter I of this Part. Article 48 allows
ing, through to refusal to accept the final decision of the such invocation by any State, in the case of the breach of
court or tribunal. This paragraph also applies to situations an obligation to the international community as a whole,
where a State party fails to cooperate in the establishment or by any member of a group of States, in the case of
of the relevant tribunal or fails to appear before the tri- other obligations established for the protection of the col-
bunal once it is established. Under the circumstances of lective interest of the group. By virtue of article 48, para-
paragraph 4, the limitations to the taking of countermeas- graph 2, such States may also demand cessation and
ures under paragraph 3 do not apply. performance in the interests of the beneficiaries of the
obligation breached. Thus, with respect to the obligations
referred to in article 48, such States are recognized as hav-
Article 53. Termination of countermeasures ing a legal interest in compliance. The question is to what
extent these States may legitimately assert a right to react
Countermeasures shall be terminated as soon as the against unremedied breaches.792
responsible State has complied with its obligations un-
der Part Two in relation to the internationally wrong- (2) It is vital for this purpose to distinguish between
ful act. individual measures, whether taken by one State or by a
group of States each acting in its individual capacity and
through its own organs on the one hand, and institutional
Commentary reactions in the framework of international organizations
on the other. The latter situation, for example where it
(1) Article 53 deals with the situation where the respon- occurs under the authority of Chapter VII of the Charter of
sible State has complied with its obligations of cessation the United Nations, is not covered by the articles.793 More
and reparation under Part Two in response to counter- generally, the articles do not cover the case where action
measures taken by the injured State. Once the responsible is taken by an international organization, even though the
State has complied with its obligations under Part Two, no member States may direct or control its conduct.794
ground is left for maintaining countermeasures, and they
must be terminated forthwith. (3) Practice on this subject is limited and rather embry-
onic. In a number of instances, States have reacted against
(2) The notion that countermeasures must be terminated what were alleged to be breaches of the obligations
as soon as the conditions which justified them have ceased referred to in article 48 without claiming to be individual-
is implicit in the other articles in this chapter. In view of ly injured. Reactions have taken such forms as economic
its importance, however, article 53 makes this clear. It un- sanctions or other measures (e.g. breaking off air links or
derlines the specific character of countermeasures under other contacts). Examples include the following:
article 49.
9 See, e.g., M. Akehurst, “Reprisals by third States”, BYBIL,

91 Under the Convention on the Settlement of Investment Disputes
1970, vol. 44, p. 1; J. I. Charney, “Third State remedies in international
between States and Nationals of other States, the State of nationality
law”, Michigan Journal of International Law, vol. 10, No. 1 (1989),
may not bring an international claim on behalf of a claimant individual
p. 57; Hutchinson, loc. cit. (footnote 672 above); Sicilianos, op. cit.
or company “in respect of a dispute which one of its nationals and an-
(footnote 735 above), pp. 110–175; B. Simma, “From bilateralism
other Contracting State shall have consented to submit or shall have
to community interest in international law”, Collected Courses ...,
submitted to arbitration under this Convention, unless such other Con-
1994–VI (The Hague, Martinus Nijhoff, 1997), vol. 250, p. 217; and J.
tracting State shall have failed to abide by and comply with the award
A. Frowein, “Reactions by not directly affected States to breaches of
rendered in such dispute” (art. 27, para. 1); see C. H. Schreuer, The
ICSID Convention: A Commentary (Cambridge University Press, 2001) public international law”, Collected Courses ..., 1994–IV (Dordrecht,
Martinus Nijhoff, 1995), vol. 248, p. 345.
pp. 397–414. This excludes all forms of invocation of responsibility 9 See article 59 and commentary.
by the State of nationality, including the taking of countermeasures.
See paragraph (2) of the commentary to article 42. 9 See article 57 and commentary.
361
Annex 13
• United States-Uganda (1978). In October 1978, the • United States-South Africa (1986). When in 1985,
United States Congress adopted legislation prohibiting the Government of South Africa declared a state of
exports of goods and technology to, and all imports emergency in large parts of the country, the Security
from, Uganda.795 The legislation recited that “[t]he Council recommended the adoption of sectoral eco-
Government of Uganda … has committed genocide nomic boycotts and the freezing of cultural and sports
against Ugandans” and that the “United States should relations.803 Subsequently, some countries introduced
take steps to dissociate itself from any foreign govern- measures which went beyond those recommended
ment which engages in the international crime of geno- by the Security Council. The United States Congress
cide”.796 adopted the Comprehensive Anti-Apartheid Act which
suspended landing rights of South African Airlines on
• Certain Western countries-Poland and the Soviet United States territory.804 This immediate suspension
Union (1981). On 13 December 1981, the Polish was contrary to the terms of the 1947 United States of
Government imposed martial law and subsequently America and Union of South Africa Agreement relat-
suppressed demonstrations and detained many dissi- ing to air services between their respective territories805
dents.797 The United States and other Western countries and was justified as a measure which should encour-
took action against both Poland and the Soviet Union. age the Government of South Africa “to adopt reforms
The measures included the suspension, with immediate leading to the establishment of a non-racial democ-
effect, of treaties providing for landing rights of Aero- racy”.806
flot in the United States and LOT in the United States,
Great Britain, France, the Netherlands, Switzerland • Collective measures against Iraq (1990). On 2 Au-
and Austria.798 The suspension procedures provided gust 1990, Iraqi troops invaded and occupied Kuwait.
for in the respective treaties were disregarded.799 The Security Council immediately condemned the in-
vasion. European Community member States and the
• Collective measures against Argentina (1982). In United States adopted trade embargoes and decided to
April 1982, when Argentina took control over part of the freeze Iraqi assets.807 This action was taken in direct
Falkland Islands (Malvinas), the Security Council called response to the Iraqi invasion with the consent of the
for an immediate withdrawal.800 Following a request by Government of Kuwait.
the United Kingdom, European Community members,
Australia, Canada and New Zealand adopted trade sanc- • Collective measures against the Federal Republic
tions. These included a temporary prohibition on all im- of Yugoslavia (1998). In response to the humanitarian
ports of Argentine products, which ran contrary to ar- crisis in Kosovo, the member States of the European
ticle XI:1 and possibly article III of the General Agree- Community adopted legislation providing for the freez-
ment on Tariffs and Trade. It was disputed whether the ing of Yugoslav funds and an immediate flight ban.808
measures could be justified under the national security For a number of countries, such as France, Germany
exception provided for in article XXI (b) (iii) of the and the United Kingdom, the latter measure implied
Agreement.801 The embargo adopted by the European the non-performance of bilateral aviation agreements.809
countries also constituted a suspension of Argentina’s Because of doubts about the legitimacy of the action,
rights under two sectoral agreements on trade in tex- the British Government initially was prepared to fol-
tiles and trade in mutton and lamb,802 for which secu- low the one-year denunciation procedure provided for
rity exceptions of the Agreement did not apply. in article 17 of its agreement with Yugoslavia. How-
ever, it later changed its position and denounced flights
with immediate effect. Justifying the measure, it stated
that “President Milosevic’s ... worsening record on hu-
9 Uganda Embargo Act, Public Law 95-435 of 10 October 1978, man rights means that, on moral and political grounds,
United States Statutes at Large 1978, vol. 92, part 1 (Washington, he has forfeited the right of his Government to insist
D.C., United States Government Printing Office, 1980), pp. 1051– upon the 12 months notice which would normally ap-
1053.
96 Ibid., sects. 5(a) and (b).
9 RGDIP, vol. 86 (1982), pp. 603–604.
9 Ibid., p. 606.
0 Security Council resolution 569 (1985) of 26 July 1985.
99 See, e.g., article 15 of the Air Transport Agreement between the
For further references, see Sicilianos, op. cit. (footnote 735 above),
Government of the United States of America and the Government of p. 165.
the Polish People’s Republic of 1972 (United States Treaties and Other 0 For the text of this provision, see ILM, vol. 26, No. 1 (January
International Agreements, vol. 23, part 4 (1972), p. 4269); and article
1987), p. 79 (sect. 306).
17 of the United States-Union of Soviet Socialist Republics Civil Air 0 United Nations, Treaty Series, vol. 66, p. 239 (art. VI).
Transport Agreement of 1966, ILM, vol. 6, No. 1 (January 1967), p. 82
and vol. 7, No. 3 (May 1968), p. 571. 06 For the implementation order, see ILM (footnote 804 above),
00 Security Council resolution 502 (1982) of 3 April 1982. p. 105.
01 Western States’ reliance on this provision was disputed by other 0 See, e.g., President Bush’s Executive Orders of 2 August 1990,
GATT members; cf. communiqué of Western countries, GATT docu- reproduced in AJIL, vol. 84, No. 4 (October 1990), pp. 903–905.
ment L. 5319/Rev.1 and the statements by Spain and Brazil, GATT 0 Common positions of 7 May and 29 June 1998, Official Journal
document C/M/157, pp. 5–6. For an analysis, see M. J. Hahn, of the European Communities, No. L 143 of 14 May 1998, p. 1 and
Die einseitige Aussetzung von GATT-Verpflichtungen als Repressa- No. L 190 of 4 July 1998, p. 3; implemented through Council Regula-
lie (Unilateral Suspension of GATT Obligations as Reprisal (English tions 1295/98, ibid., No. L 178 of 23 June 1998, p. 33 and 1901/98,
summary)) (Berlin, Springer, 1996), pp. 328–334. ibid., No. L 248 of 8 September 1998, p. 1.
0 The treaties are reproduced in Official Journal of the European 09 See, e.g., United Kingdom, Treaty Series No. 10 (1960) (London,
Communities, No. L 298 of 26 November 1979, p. 2; and No. L 275 of HM Stationery Office, 1960); and Recueil des Traités et Accords de la
18 October 1980, p. 14. France, 1967, No. 69.
362
Annex 13
ply”.810 The Federal Republic of Yugoslavia protested States could not be considered “injured States” in the
these measures as “unlawful, unilateral and an example sense of article 42. It should be noted that in those cases
of the policy of discrimination”.811 where there was, identifiably, a State primarily injured
by the breach in question, other States have acted at the
(4) In some other cases, certain States similarly sus- request and on behalf of that State.816
pended treaty rights in order to exercise pressure on States
violating collective obligations. However, they did not rely (6) As this review demonstrates, the current state of in-
on a right to take countermeasures, but asserted a right to ternational law on countermeasures taken in the general
suspend the treaty because of a fundamental change of or collective interest is uncertain. State practice is sparse
circumstances. Two examples may be given: and involves a limited number of States. At present, there
appears to be no clearly recognized entitlement of States
• Netherlands-Suriname (1982). In 1980, a military referred to in article 48 to take countermeasures in the
Government seized power in Suriname. In response collective interest. Consequently, it is not appropriate to
to a crackdown by the new Government on opposition include in the present articles a provision concerning the
movements in December 1982, the Dutch Government question whether other States, identified in article 48, are
suspended a bilateral treaty on development assistance permitted to take countermeasures in order to induce a
under which Suriname was entitled to financial subsi- responsible State to comply with its obligations. Instead,
dies.812 While the treaty itself did not contain any sus- chapter II includes a saving clause which reserves the po-
pension or termination clauses, the Dutch Government sition and leaves the resolution of the matter to the further
stated that the human rights violations in Suriname development of international law.
constituted a fundamental change of circumstances
which gave rise to a right of suspension.813 (7) Article 54 accordingly provides that the chapter
on countermeasures does not prejudice the right of any
• European Community member States-the Federal State, entitled under article 48, paragraph 1, to invoke the
Republic of Yugoslavia (1991). In the autumn of 1991, responsibility of another State, to take lawful measures
in response to resumption of fighting within the Fed- against the responsible State to ensure cessation of the
eral Republic of Yugoslavia, European Community breach and reparation in the interest of the injured State
members suspended and later denounced the 1983 or the beneficiaries of the obligation breached. The ar-
Cooperation Agreement with Yugoslavia.814 This led ticle speaks of “lawful measures” rather than “counter-
to a general repeal of trade preferences on imports measures” so as not to prejudice any position concerning
and thus went beyond the weapons embargo ordered measures taken by States other than the injured State in
by the Security Council in resolution 713 (1991) of 25 response to breaches of obligations for the protection of
September 1991. The reaction was incompatible with the collective interest or those owed to the international
the terms of the Cooperation Agreement, which did community as a whole.
not provide for the immediate suspension but only for
denunciation upon six months’ notice. Justifying the
suspension, European Community member States ex-
part fOur
plicitly mentioned the threat to peace and security in
the region. But as in the case of Suriname, they relied
on fundamental change of circumstances, rather than general prOVisiOns
asserting a right to take countermeasures.815
(5) In some cases, there has been an apparent willing- This Part contains a number of general provisions ap-
ness on the part of some States to respond to violations of plicable to the articles as a whole, specifying either their
obligations involving some general interest, where those scope or certain matters not dealt with. First, article 55
makes it clear by reference to the lex specialis principle
that the articles have a residual character. Where some
10 BYBIL, 1998, vol. 69, p. 581; see also BYBIL, 1999, vol. 70, matter otherwise dealt with in the articles is governed by
pp. 555–556. a special rule of international law, the latter will prevail to
11 Statement of the Government of the Federal Republic of
the extent of any inconsistency. Correlatively, article 56
Yugoslavia on the suspension of flights of Yugoslav Airlines of makes it clear that the articles are not exhaustive, and that
10 October 1998. See M. Weller, The Crisis in Kosovo 1989-1999
(Cambridge, Documents & Analysis Publishing, 1999), p. 227. they do not affect other applicable rules of international
1 Tractatenblad van het Koninkrijk der Nederlanden, No. 140 law on matters not dealt with. There follow three saving
(1975). See H.-H. Lindemann, “The repercussions resulting from the clauses. Article 57 excludes from the scope of the articles
violation of human rights in Surinam on the contractual relations be- questions concerning the responsibility of international
tween the Netherlands and Surinam”, Zeitschrift für ausländisches organizations and of States for the acts of international
öffentliches Recht und Völkerrecht, vol. 44 (1984), p. 64, at pp. 68–69.
1 R. C. R. Siekmann, “Netherlands State practice for the parliamen-
organizations. The articles are without prejudice to any
tary year 1982–1983”, NYIL, 1984, vol. 15, p. 321. question of the individual responsibility under interna-
1 Official Journal of the European Communities, No. L 41 of tional law of any person acting on behalf of a State, and
14 February 1983, p. 1; No. L 315 of 15 November 1991, p. 1, for this is made clear by article 58. Finally, article 59 reserves
the suspension; and No. L 325 of 27 November 1991, p. 23, for the the effects of the Charter of the United Nations itself.
denunciation.
1 See also the decision of the European Court of Justice in A. Racke 16 Cf. Military and Paramilitary Activities in and against Nicaragua
GmbH and Co. v. Hauptzollamt Mainz, case C-162/96, Reports of cases (footnote 36 above) where ICJ noted that action by way of collective self-
before the Court of Justice and the Court of First Instance, 1998-6, defence could not be taken by a third State except at the request of the
p. I–3655, at pp. 3706–3708, paras. 53–59. State subjected to the armed attack (p. 105, para. 199).
363
Annex 13
Article 55. Lex specialis example of the latter is article 41 of Protocol No. 11 to
the European Convention on Human Rights.819 Both con-
These articles do not apply where and to the extent cern matters dealt with in Part Two of the articles. The
that the conditions for the existence of an internation- same considerations apply to Part One. Thus, a particular
ally wrongful act or the content or implementation of treaty might impose obligations on a State but define the
the international responsibility of a State are governed “State” for that purpose in a way which produces different
by special rules of international law. consequences than would otherwise flow from the rules
of attribution in chapter II.820 Or a treaty might exclude a
State from relying on force majeure or necessity.
Commentary
(4) For the lex specialis principle to apply it is not enough
(1) When defining the primary obligations that apply that the same subject matter is dealt with by two provi-
between them, States often make special provision for sions; there must be some actual inconsistency between
the legal consequences of breaches of those obligations, them, or else a discernible intention that one provision is
and even for determining whether there has been such to exclude the other. Thus, the question is essentially one
a breach. The question then is whether those provisions of interpretation. For example, in the Neumeister case, the
are exclusive, i.e. whether the consequences which would European Court of Human Rights held that the specific
otherwise apply under general international law, or the obligation in article 5, paragraph 5, of the European Con-
rules that might otherwise have applied for determining a vention on Human Rights for compensation for unlawful
breach, are thereby excluded. A treaty may expressly pro- arrest or detention did not prevail over the more general
vide for its relationship with other rules. Often, however, provision for compensation in article 50. In the Court’s
it will not do so and the question will then arise whether view, to have applied the lex specialis principle to article
the specific provision is to coexist with or exclude the 5, paragraph 5, would have led to “consequences incom-
general rule that would otherwise apply. patible with the aim and object of the Convention”.821 It
was sufficient, in applying article 50, to take account of
(2) Article 55 provides that the articles do not apply the specific provision.822
where and to the extent that the conditions for the exist-
ence of an internationally wrongful act or its legal conse- (5) Article 55 is designed to cover both “strong” forms
quences are determined by special rules of international of lex specialis, including what are often referred to as
law. It reflects the maxim lex specialis derogat legi gen- self-contained regimes, as well as “weaker” forms such as
erali. Although it may provide an important indication, specific treaty provisions on a single point, for example,
this is only one of a number of possible approaches to- a specific treaty provision excluding restitution. PCIJ re-
wards determining which of several rules potentially ap- ferred to the notion of a self-contained regime in the S.S.
plicable is to prevail or whether the rules simply coexist. “Wimbledon” case with respect to the transit provisions
Another gives priority, as between the parties, to the rule concerning the Kiel Canal in the Treaty of Versailles,823
which is later in time.817 In certain cases the consequenc-
es that follow from a breach of some overriding rule may which is inconsistent with a covered agreement”. For WTO purposes,
themselves have a peremptory character. For example, “compensation” refers to the future conduct, not past conduct, and in-
States cannot, even as between themselves, provide for volves a form of countermeasure. See article 22 of the Understanding.
On the distinction between cessation and reparation for WTO purposes,
legal consequences of a breach of their mutual obligations see, e.g., Report of the Panel, Australia–Subsidies Provided to Produc-
which would authorize acts contrary to peremptory norms ers and Exporters of Automotive Leather (footnote 431 above).
of general international law. Thus, the assumption of ar- 19 See paragraph (2) of the commentary to article 32.
ticle 55 is that the special rules in question have at least 0 Thus, article 1 of the Convention against Torture and Other Cruel,
the same legal rank as those expressed in the articles. On Inhuman or Degrading Treatment or Punishment only applies to torture
that basis, article 55 makes it clear that the present articles committed “by or at the instigation of or with the consent or acquies-
operate in a residual way. cence of a public official or other person acting in an official capacity”.
This is probably narrower than the bases for attribution of conduct to
the State in Part One, chapter II. Cf. “federal” clauses, allowing certain
(3) It will depend on the special rule to establish the ex- component units of the State to be excluded from the scope of a treaty
tent to which the more general rules on State responsibil- or limiting obligations of the federal State with respect to such units
ity set out in the present articles are displaced by that rule. (e.g. article 34 of the Convention for the Protection of the World Cul-
tural and Natural Heritage).
In some cases, it will be clear from the language of a trea- 1 Neumeister v. Austria, Eur. Court H.R., Series A, No. 17 (1974),
ty or other text that only the consequences specified are paras. 28–31, especially para. 30.
to flow. Where that is so, the consequence will be “de- See also Mavrommatis (footnote 236 above), pp. 29–33; Marcu
termined” by the special rule and the principle embodied Colleanu v. German State, Recueil des décisions des tribunaux ar-
in article 55 will apply. In other cases, one aspect of the bitraux mixtes institués par les traités de paix (Paris, Sirey, 1930),
general law may be modified, leaving other aspects still vol. IX, p. 216 (1929); WTO, Report of the Panel, Turkey–Restrictions
applicable. An example of the former is the WTO Under- on Imports of Textile and Clothing Products (footnote 130 above),
paras. 9.87–9.95; Case concerning a dispute between Argentina and
standing on Rules and Procedures governing the Settle- Chile concerning the Beagle Channel, UNRIAA, vol. XXI (Sales
ment of Disputes as it relates to certain remedies.818 An No. E/F. 95.V.2), p. 53, at p. 100, para. 39 (1977). See further C. W. Jenks,
“The conflict of law-making treaties”, BYBIL, 1953, vol. 30, p. 401;
M. McDougal, H. D. Lasswell and J. C. Miller, The Interpretation of
1 See paragraph 3 of article 30 of the 1969 Vienna Convention. International Agreements and World Public Order: Principles of
1 See Marrakesh Agreement establishing the World Trade Organi- Content and Procedure (New Haven Press, 1994), pp. 200–206; and
zation, annex 2, especially art. 3, para. 7, which provides for compensa- P. Reuter, Introduction to the Law of Treaties (footnote 300 above),
tion “only if the immediate withdrawal of the measure is impractical para. 201.
and as a temporary measure pending the withdrawal of the measure S.S. “Wimbledon” (see footnote 34 above), pp. 23–24.
364
Annex 13
as did ICJ in the United States Diplomatic and Consular international law but also by some treaties; hence article
Staff in Tehran case with respect to remedies for abuse of 56 refers to the “applicable rules of international law”.
diplomatic and consular privileges.824
(3) A second function served by article 56 is to make
(6) The principle stated in article 55 applies to the ar- it clear that the present articles are not concerned with
ticles as a whole. This point is made clear by the use of any legal effects of a breach of an international obligation
language (“the conditions for the existence of an interna- which do not flow from the rules of State responsibility,
tionally wrongful act or the content or implementation of but stem from the law of treaties or other areas of law.
the international responsibility of a State”) which reflects Examples include the invalidity of a treaty procured by
the content of each of Parts One, Two and Three. an unlawful use of force,826 the exclusion of reliance on
a fundamental change of circumstances where the change
in question results from a breach of an international obli-
Article 56. Questions of State responsibility gation of the invoking State to any other State party,827 or
not regulated by these articles the termination of the international obligation violated in
the case of a material breach of a bilateral treaty.828
The applicable rules of international law continue
to govern questions concerning the responsibility of a
State for an internationally wrongful act to the extent Article 57. Responsibility of an international
that they are not regulated by these articles. organization
These articles are without prejudice to any question

Commentary of the responsibility under international law of an in-
ternational organization, or of any State for the con-
(1) The present articles set out by way of codification duct of an international organization.
and progressive development the general secondary rules
of State responsibility. In that context, article 56 has two
functions. First, it preserves the application of the rules Commentary
of customary international law concerning State respon-
sibility on matters not covered by the articles. Secondly, (1) Article 57 is a saving clause which reserves two re-
it preserves other rules concerning the effects of a breach lated issues from the scope of the articles. These concern,
of an international obligation which do not involve issues first, any question involving the responsibility of interna-
of State responsibility but stem from the law of treaties tional organizations, and secondly, any question concern-
or other areas of international law. It complements the lex ing the responsibility of any State for the conduct of an
specialis principle stated in article 55. Like article 55, it international organization.
is not limited to the legal consequences of wrongful acts
but applies to the whole regime of State responsibility set (2) In accordance with the articles prepared by the Com-
out in the articles. mission on other topics, the expression “international or-
ganization” means an “intergovernmental organization”.829
(2) As to the first of these functions, the articles do not Such an organization possesses separate legal personality
purport to state all the consequences of an internationally under international law,830 and is responsible for its own
wrongful act even under existing international law and acts, i.e. for acts which are carried out by the organization
there is no intention of precluding the further develop- through its own organs or officials.831 By contrast, where
ment of the law on State responsibility. For example, the a number of States act together through their own organs
principle of law expressed in the maxim ex injuria jus non as distinct from those of an international organization,
oritur may generate new legal consequences in the field the conduct in question is that of the States concerned,
of responsibility.825 In this respect, article 56 mirrors the in accordance with the principles set out in chapter II of
preambular paragraph of the 1969 Vienna Convention Part One. In such cases, as article 47 confirms, each State
which affirms that “the rules of customary international remains responsible for its own conduct.
law will continue to govern questions not regulated by the
provisions of the present Convention”. However, matters 6 1969 Vienna Convention, art. 52.
of State responsibility are not only regulated by customary Ibid., art. 62, para. 2 (b).
Ibid., art. 60, para 1.
9 See article 2, paragraph 1 (i), of the Vienna Convention on the
United States Diplomatic and Consular Staff in Tehran (see Law of Treaties between States and International Organizations or
footnote 59 above), at p. 40, para. 86. See paragraph (15) of the com- between International Organizations (hereinafter “the 1986 Vienna
mentary to article 50 and also B. Simma, “Self-contained regimes”, Convention”).
NYIL, 1985, vol. 16, p. 111. 0 A firm foundation for the international personality of the
Another possible example, related to the determination whether United Nations is laid in the advisory opinion of the Court in Repara-
there has been a breach of an international obligation, is the so-called tion for Injuries (see footnote 38 above), at p. 179.
principle of “approximate application”, formulated by Sir Hersch 1 As the Court has observed, “the question of immunity from le-
Lauterpacht in Admissibility of Hearings of Petitioners by the Commit- gal process is distinct from the issue of compensation for any dam-
tee on South West Africa, Advisory Opinion, I.C.J. Reports 1956, p. 23, ages incurred as a result of acts performed by the United Nations or
at p. 46. In the Gabčíkovo-Nagymaros Project case (see footnote 27 by its agents acting in their official capacity. The United Nations may
above), the Court said that “even if such a principle existed, it could by be required to bear responsibility for the damage arising from such
definition only be employed within the limits of the treaty in question” acts”, Difference Relating to Immunity from Legal Process of a Special
(p. 53, para. 76). See also S. Rosenne, Breach of Treaty (footnote 411 Rapporteur of the Commission on Human Rights (see footnote 56
above), pp. 96–101. above).
365
Annex 13
(3) Just as a State may second officials to another State, ary liability of member States for the acts or debts of an
putting them at its disposal so that they act for the pur- international organization.834
poses of and under the control of the latter, so the same
could occur as between an international organization and
a State. The former situation is covered by article 6. As Article 58. Individual responsibility
to the latter situation, if a State seconds officials to an
international organization so that they act as organs or of- These articles are without prejudice to any question
ficials of the organization, their conduct will be attribut- of the individual responsibility under international
able to the organization, not the sending State, and will law of any person acting on behalf of a State.
fall outside the scope of the articles. As to the converse
situation, in practice there do not seem to be convincing
examples of organs of international organizations which Commentary
have been “placed at the disposal of ” a State in the sense
of article 6,832 and there is no need to provide expressly (1) Article 58 makes clear that the articles as a whole
for the possibility. do not address any question of the individual responsibil-
ity under international law of any person acting on behalf
(4) Article 57 also excludes from the scope of the arti- of a State. It clarifies a matter which could be inferred in
cles issues of the responsibility of a State for the acts of an any case from the fact that the articles only address issues
international organization, i.e. those cases where the in- relating to the responsibility of States.
ternational organization is the actor and the State is said to
be responsible by virtue of its involvement in the conduct (2) The principle that individuals, including State of-
of the organization or by virtue of its membership of the ficials, may be responsible under international law was
organization. Formally, such issues could fall within the established in the aftermath of the Second World War. It
scope of the present articles since they concern questions was included in the London Charter of 1945 which estab-
of State responsibility akin to those dealt with in chapter lished the Nuremberg Tribunal835 and was subsequently
IV of Part One. But they raise controversial substantive endorsed by the General Assembly.836 It underpins more
questions as to the functioning of international organiza- recent developments in the field of international crimi-
tions and the relations between their members, questions nal law, including the two ad hoc tribunals and the Rome
which are better dealt with in the context of the law of Statute of the International Criminal Court.837 So far this
international organizations.833 principle has operated in the field of criminal responsibil-
ity, but it is not excluded that developments may occur in
the field of individual civil responsibility.838 As a saving
(5) On the other hand article 57 does not exclude from clause, article 58 is not intended to exclude that possibil-
the scope of the articles any question of the responsibility ity; hence the use of the general term “individual respon-
of a State for its own conduct, i.e. for conduct attribut- sibility”.
able to it under chapter II of Part One, not being conduct
performed by an organ of an international organization. In (3) Where crimes against international law are commit-
this respect the scope of article 57 is narrow. It covers only ted by State officials, it will often be the case that the State
what is sometimes referred to as the derivative or second- itself is responsible for the acts in question or for failure
to prevent or punish them. In certain cases, in particular
Cf. Yearbook ... 1974, vol. II (Part One), pp. 286–290. The High aggression, the State will by definition be involved. Even
Commissioner for the Free City of Danzig was appointed by the League so, the question of individual responsibility is in principle
of Nations Council and was responsible to it; see Treatment of Polish distinct from the question of State responsibility.839 The
Nationals (footnote 75 above). Although the High Commissioner exer-
cised powers in relation to Danzig, it is doubtful that he was placed at
the disposal of Danzig within the meaning of article 6. The position of See the work of the Institute of International Law under R. Hig-
the High Representative, appointed pursuant to annex 10 of the General gins, Yearbook of the Institute of International Law, vol. 66–I (1995),
Framework Agreement for Peace in Bosnia and Herzegovina of 14 De- p. 251, and vol. 66–II (1996), p. 444. See also P. Klein, La responsabilité
cember 1995, is also unclear. The Constitutional Court of Bosnia and des organisations internationales dans les ordres juridiques internes et
Herzegovina has held that the High Representative has a dual role, both en droit des gens (Brussels, Bruylant Editions de l’Université de Brux-
as an international agent and as an official in certain circumstances act- elles, 1998). See further WTO, Report of the Panel, Turkey: Restrictions
ing in and for Bosnia and Herzegovina; in the latter respect, the High on Imports of Textile and Clothing Products (footnote 130).
Representative’s acts are subject to constitutional control. See Case U See footnote 636 above.
9/00 on the Law on the State Border Service, Official Journal of Bosnia 6 General Assembly resolution 95 (I) of 11 December 1946. See
and Herzegovina, No. 1/01 of 19 January 2001.
This area of international law has acquired significance follow-
also the Principles of International Law recognized in the Charter of the
Nürnberg Tribunal and in the Judgment of the Tribunal, elaborated by
ing controversies, inter alia, over the International Tin Council: J. H. the International Law Commission, Yearbook ... 1950, vol. II, p. 374,
Rayner (Mincing Lane) Ltd. v. Department of Trade and Industry, case document A/1316.
2 A.C. 418 (1990) (England, House of Lords); Maclaine Watson and See paragraph (6) of the commentary to chapter III of Part Two.
Co., Ltd. v. Council and Commission of the European Communities, See, e.g., article 14 of the Convention against Torture and Other
case C-241/87, Reports of cases before the Court of Justice and the
Court of First Instance, 1990-5, p. I–1797; and the Arab Organization Cruel, Inhuman or Degrading Treatment or Punishment, dealing with
for Industrialization (Westland Helicopters Ltd. v. Arab Organization compensation for victims of torture.
for Industrialization, ILR, vol. 80, p. 595 (1985) (International Cham- 9 See, e.g., Streletz, Kessler and Krenz v. Germany (application
ber of Commerce Award); Arab Organization for Industrialization v. Nos. 34044/96, 35532/97 and 44801/98), judgment of 22 March 2001,
Westland Helicopters Ltd., ibid., p. 622 (1987) (Switzerland, Federal Eur. Court H.R., Reports, 2001–II: “If the GDR still existed, it would
Supreme Court); Westland Helicopters Ltd. v. Arab Organization for be responsible from the viewpoint of international law for the acts con-
Industrialization, ibid., vol. 108, p. 564 (1994) (England, High Court). cerned. It remains to be established that alongside that State respon-
See also Waite and Kennedy v. Germany, Eur. Court H.R., Reports, sibility the applicants individually bore criminal responsibility at the
1999–I, p. 393 (1999). material time” (para. 104).
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State is not exempted from its own responsibility for inter- Article 59. Charter of the United Nations
nationally wrongful conduct by the prosecution and pun-
ishment of the State officials who carried it out.840 Nor These articles are without prejudice to the Charter
may those officials hide behind the State in respect of of the United Nations.
their own responsibility for conduct of theirs which is con-
trary to rules of international law which are applicable to
them. The former principle is reflected, for example, in ar- Commentary
ticle 25, paragraph 4, of the Rome Statute of the Inter-
national Criminal Court, which provides that: “[n]o pro- (1) In accordance with Article 103 of the Charter of the
vision in this Statute relating to individual criminal re- United Nations, “[i]n the event of a conflict between the
sponsibility shall affect the responsibility of States under obligations of the Members of the United Nations un-
international law.” The latter is reflected, for example, in der the present Charter and their obligations under any
the well-established principle that official position does other international agreement, their obligations under the
not excuse a person from individual criminal responsibil- present Charter shall prevail”. The focus of Article 103 is
ity under international law.841 on treaty obligations inconsistent with obligations arising
under the Charter. But such conflicts can have an inci-
(4) Article 58 reflects this situation, making it clear that dence on issues dealt with in the articles, as for example
the articles do not address the question of the individual in the Lockerbie cases.842 More generally, the competent
responsibility under international law of any person acting organs of the United Nations have often recommended or
on behalf of a State. The term “individual responsibility” required that compensation be paid following conduct by
has acquired an accepted meaning in the light of the Rome a State characterized as a breach of its international ob-
Statute and other instruments; it refers to the responsibil- ligations, and article 103 may have a role to play in such
ity of individual persons, including State officials, under cases.
certain rules of international law for conduct such as gen-
ocide, war crimes and crimes against humanity. (2) Article 59 accordingly provides that the articles can-
not affect and are without prejudice to the Charter of the
United Nations. The articles are in all respects to be inter-
0 Prosecution and punishment of responsible State officials may be preted in conformity with the Charter.
relevant to reparation, especially satisfaction: see paragraph (5) of the
commentary to article 36. Questions of Interpretation and Application of the 1971
1 See, e.g., the Principles of International Law recognized in the Montreal Convention arising from the Aerial Incident at Locker-
Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, bie (Libyan Arab Jamahiriya v. United Kingdom), Provisional
Principle III (footnote 836 above), p. 375; and article 27 of the Rome Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 3; (Libyan
Statute of the International Criminal Court. Arab Jamahiriya v. United States of America), ibid., p. 114.
367
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GCC Anti-Terrorism Agreement,

signed at Kuwait City on 4 May 2004
369
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Natural Language
FED DECREE No. 54 of 2004
Gazette No. 422
UAE Official Gazette
Federal Decree No. 54 of 2004 concerning Arab Gulf Cooperation Council Countries Agreement for
Fighting Terrorism.
I, Zayed Bin Sultan Al Nahyan, the President of the United Arab Emirates,
After reviewing the Constitution constitution:
Federal Law No. 1 of 1972 concerning the jurisdictions of the Ministries and the powers of the Ministers, as
amended; and
In accordance with the proposal by the Minister of the Interior, as approved by the Cabinet and as ratified by the
Supreme Council of the Federation,
Have resolved as follows:
Article 1
The GCC Anti-Terrorism Agreement, a copy of which is attached, is hereby ratified.
Article 2
The Minister of the Interior shall apply this Decree. This Decree shall be published in the official Gazette.
[Signed]
Zayed Bin Sultan Al Nahyan,

President of the United Arab Emirates
Issued by us in the Presidential Palace in Abu Dhabi on 18 Ramadan 1425 Hijri, corresponding to 1 November
2004
GCC Anti-Terrorism Agreement
The Gulf Co-operation Council States:
In accordance with the Articles of Association of the Council and the principles and rules established by the
Council and in confirmation of the Supreme Council's resolutions concerning anti-terrorism;
In compliance with the religious principles and ethics, the cultural and human heritage of the international Arab
and Muslim communities and the values and traditions of the Gulf community, which invite to reject violence
and terrorism in all its forms and images;
In confirmation of their compliance with the international Conventions, including the Arab League Charter and
Copyright 2018: Thomson Reuters. All Rights Reserved.

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the United Nations Charter;
Being aware of the growth and risks of the phenomenon of terrorism, its threats to the international community
and civil life and its effects on the Region;
Within the framework of collective responsibility to maintain security and stability, according to the principle of
collective security and in consideration of the security and stability of the GCC countries as an indivisible
whole;
Being desirous of protecting the GCC communities and peoples and their historical benefits and cultural
achievements and their interests from the risk of terrorism;
In confirmation of the rights of the peoples to fight the foreign occupation and the hostilities by various means;
In confirmation of their intention to confront and fight terrorism collectively, to promote and develop joint
co-operation between the GCC countries and to achieve comprehensiveness and integration in the process of
fighting terrorism;
In confirmation by the GCC countries of their respect of human rights;
Expressing their worries concerning terrorism that constitutes serious prejudice to human rights, destabilization
of the states, disturbance of international relationships and the hindrance of the social, economical, cultural and
ideological development,
Being convinced that terrorism cannot be justified in any circumstance or by any incentive or objective and
therefore must be fought in all its forms and aspects, irrespective of the basis, reasons and goals of terrorism;
Being determined to destroy terrorism in all its forms and aspects and means of support and to prevent any
financing sources to reach any terrorist members or organizations or to provide any means of assistance to them,
Now therefore it is hereby agreed as follows:
Chapter One Definition and General Provisions
Article 1
For the purpose of this Agreement, the following terms and expressions shall have the meanings as set out
therewith:
1. Contracting State: means any member state of the GCC countries which has ratified this Agreement and filed
the ratification documents with the Secretary General of the Gulf Cooperation Council.
2. Terrorism: means any act or threatened act of violence, irrespective of its motives or purposes, in
performance of any individual or collective criminal project, intended to terrify or horrify people by hurting
them or endangering their lives, freedom or security, to cause damage to the environment or any public or
private property or to occupy or take possession of such property or to endanger any national resources.
3. Terrorist Crime: means any crime or purported crime committed for any criminal purpose in any State which
is a party hereto against its property interests, citizens or against the property of such citizens punishable by its
law; encouraging, promoting or tempting to commit Terrorist Crimes, by the printing, publication or acquisition
of documents, printings or recordings of any type whatsoever if prepared for distribution to, or inspection by
third parties of such documents, printings or recordings, then the expression "Terrorist Crime" shall apply; the
provision or raising of funds of any kind whatsoever to finance Terrorist Crimes, provided that the person
providing or raising such funds is aware of such purpose.
Terrorist Crimes shall also include such crimes as contemplated in the following Conventions, except those
excluded by the laws of the Contracting States or not ratified by those States:
A. Islamic Conference Organization Anti Terrorism Treaty.
B. Arab Anti Terrorism Agreement.

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C. Tokyo Convention concerning crimes and acts committed on board airplanes executed on 14.9.1963.
D. The Hague Convention concerning the prevention of unlawful seizure of airplanes, executed on 16.12.1970
E. Montreal Convention preventing unlawful acts against the safety of civil aviation, executed on 23.9.1971 and
its protocol executed in Montreal on 10.5.1984.
F. New York Convention preventing and punishing crimes against internationally protected persons, including
diplomatic personnel, as approved by the General Assembly on 14 December 1970.
G. The Convention Against the Taking of Hostages executed on 17 December 1979.
H. Nuclear Substance Physical Protection Convention, executed in Vienna on 3 March 1980.
I. UN Overseas Law Convention of 1983, particularly in connection with piracy.

J. The protocol concerning unlawful acts of violence in airports serving international civil aviation,
supplementing the Montreal Convention of 1971, executed on 24 February 1988.
K. The protocol concerning unlawful acts against the safety in fixed rigs on the continental shelf, executed in
Rome in 1988.
L. The Convention concerning unlawful acts against marine navigation, executed in Rome in 1988.
M. Anti Bomb Terrorist Attacks International Convention, New York 1997.
N. The Convention for the identification of plastic explosives for the purpose of detection thereof, Montréal
1991.
O. International Anti Terrorism Financing Convention, 1999.
4. Terrorism Support and Financing Activities: mean every act involving the collection, receipt, delivery,
allocation, transfer or remittance of any assets or their revenues for any individual or collective terrorist activity,
whether locally or abroad; to perform, for the benefit or elements of such activity, any bank or commercial
transactions; to obtain, directly or indirectly, funds to be utilized for the benefit of such activity; to promote or
invite to adopt the principle of such activity; to arrange for training places or places to accommodate the
terrorists; to provide any types of weapons or forged documents or to provide any other supporting and
financing means, being aware thereof.
5. Assets: mean any type of cash money and movable and immovable assets, documents, deeds and instruments
of any form whatsoever, including the form of electronic or digital systems, bank credits and all types of
cheques, drafts, shares, securities, bonds, bills of exchange and letters of credit.
Article 2
A. The term "crime" shall not include the events of struggle, including the armed struggle against the foreign
occupation and enemy for the purpose of liberation and self-determination, in accordance with the provision of
the international law, excluding any act affecting the regional unity of any of the Contracting States.
B. No Terrorist Crime as set forth in the preceding Article shall be deemed as a political crime.
Upon the application of the provisions of this Agreement, political crimes shall not, even if committed for a
political motive, include the following crimes:
1. To assault the kings and presidents of the Contracting States or their spouses, children and relatives;
2. To assault the crown princes, the vice presidents, the prime ministers or the ministers of any of the
Contracting States;
3. To assault those persons enjoying international protection, including the ambassadors, diplomats or consuls in
the Contracting States;
4. Premeditated murder and robbery against individuals, authorities or the means of transport.

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5. Acts of sabotage of public property and such property allocated for public service, even if such property is
held by another Contracting State;
6. The manufacture, smuggling or acquisition of weapons, ammunition, explosives and other materials prepared
to commit Terrorist Crimes.
Chapter Two Security Co-operation and Integration
Article 3
The Contracting States shall integrate the Terrorism preventive plans and actions and shall face and fight
Terrorism.
Article 4
The Contracting States shall co-operate to provide security support and assistance as required by any
Contracting State that may suffer Terrorism risks, crimes and effects, according to the requirements and
circumstances of every State.
Article 5
The Contracting States shall procure to intensify, follow up and monitor security challenges, assess the
contingent risks and terrorist threats, make such assessment and projection studies and analyses and researches
as required in this respect and lay such security plans to prevent, fight and frustrate the goals of Terrorism.
Article 6
The Contracting States shall use all such efforts as possible to prevent the entrance or infiltration of terrorists to
their lands, and shall procure to prevent any opportunities to tempt any of their citizens to join any unlawful
groups or to be involved in any terrorist activity in any circumstances or by any false allegations.
Article 7
The Contracting States shall take all such measures to prevent the use of their lands as a platform to plan,
organize or commit or procure to commit or participate in terrorist acts or crimes, and shall develop and activate
such systems in connection with control procedures and securing the borders and all the passages, so as to
integrate the measures taken by such States to prevent such events of breaching or penetrating security
procedures.
Article 8
The Contracting States shall take all such measures and procedures as necessary to protect individuals and
public and private property, to consolidate protection and security systems for facilities, means of transport,
diplomatic and consular missions, international and local organizations and the interests of other States at the
Contracting States.
Article 9
To achieve the objectives of this Agreement, the Contracting States shall:

1. Promptly exchange information and data in connection with terrorist threats and risks and such assumptions
and prospects in connection with Terrorist Crimes.
2. Report terrorist members or those suspected of connections or communications with such members.

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3. Promptly exchange information and documents concerning Terrorist Crimes that may target any of the
Contracting States, whether inside their borders or abroad, and the results of enquiries or investigations made
and to report the identity of those involved.
4. Immediately and regularly co-operate to exchange information on the methods and tools used to commit
Terrorist Crimes, the actions taken to detect, frustrate and fight Terrorist Crimes and such information and
experiences in connection with technical and security methods used to prevent and fight Terrorism.
5. Hold joint meetings for the officers of the relevant anti Terrorism offices and to regularly exchange visits, as
necessary.
6. Set up an integrated advanced common data base for such information in connection with fighting Terrorism
and to link the relevant security authorities.
7. Make studies and researches, hold advanced training courses and make common drills for all the relevant anti
Terrorism security authorities.
8. Take the required steps and adequate measures to protect those involved in fighting Terrorism and the
members of their families.
Article 10
The Contracting States shall take such steps and measures as required to keep such information, materials and
documents exchanged between the Contracting States on Terrorism confidential; such information, materials
and documents may not be disclosed to any State other than the Contracting States, without the consent of the
disclosing State.
Article 11
The Contracting States shall take prompt steps to trace, pursue and arrest those who may commit Terrorist
Crimes in any such States and to prosecute such persons in accordance with the laws and regulations of each
State and to provide effective protection for those working in the criminal judicial institutions and full
protection to the providers of information on Terrorist Crimes, witnesses and experts.
Article 12
The Contracting States shall procure to coordinate, integrate and consolidate the efforts concerning the
Terrorism related issues and matters on the agendas of the regional and international conferences and meetings.
Article 13
The Contracting States shall deepen the security and legal culture by laying effective educational programmes
to strengthen positive cooperation between individuals and the relevant anti-Terrorism authorities and to find
adequate guarantees and incentives to be able to detect Terrorist Crimes, to report the involved persons and to
provide such information that may assist in such detection.
Chapter Three Cooperation to Prevent Supporting and Financing Terrorism
Article 14
The Contracting States shall take the required steps and measures to trace the financial activities of individuals
and entities to be able to detect any Terrorism Support and Financing Activities inside their territory, in
accordance with their local laws and regulations.
Article 15

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The Contracting States shall use all such efforts as possible to prevent the transfer or remittance of money to or
from those States if such money is suspected to be used in Terrorism Finance and Support Activities and to
prevent any individuals or public or private entities belonging to, or on the lands of, the Contracting States from
getting involved in such activities.
Article 16
The Contracting States shall promptly exchange any data or information in connection with Terrorism Support
or Financing Activities and shall report such activities and the relevant preventive measures taken.
Article 17
The Contracting States shall exchange such experiences and security methods to detect such activities, including
the use of wireless and electronic means of communication and the Internet, to hold conferences and meetings
and to set up a common database among the Contracting States against such activities.
Article 18
Each of the Contracting States takes such adequate steps in accordance with their respective national laws and
regulations, to identify, detect, freeze or attach any Assets used or allocated for any Terrorism support and
finance activity, and the revenues of such Assets to be confiscated, exchanged or divided with other Contracting
States if related to a terrorist activity extending to the territory of any other Contracting States or causing
damage to their own interests, provided that the benefit of detecting such activity so requires.
Chapter Four Legal and Judicial Cooperation
Article 19
The Contracting States shall deliver such suspects or persons convicted of Terrorist Crimes, who are required to
be delivered by any of those States, in accordance with the terms and conditions of this Agreement.
Article 20
Extradition may not be made in any of the following events:

A. If the subject crime is deemed, under the applicable legal provisions of the Contracting State receiving the
request for extradition, as a political crime.
B. If the crime, the subject matter of extradition, is limited to the breach of military duties.
C. If the subject crime has been committed in the territory of the Contracting State receiving the request for
extradition, unless the crime has caused damage to the interests of the requesting Contracting State, and its laws
provide for pursuing and punishing those who commit such crimes, unless the State receiving such request has
already commenced the investigation or trial process.
D. If a final judgment having the power of the adjudged issue has been issued by the Contracting State receiving
such request or by another Contracting State in connection with the relevant crime.
E. If, at the time of receiving the request for extradition, the relevant case or penalty is time barred in
accordance with the law of the requesting Contracting State.
F. If the subject crime is committed outside the territory of the requesting Contracting State by a person not a
national of such State, provided that the law of the Contracting State receiving the request for extradition
prohibits to press charge against such crime if committed outside the territory of the latter State by such a
person.
G. If a general law of amnesty including those who commit crimes is issued by the requesting Contracting State.

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H. If the legal system of the requested State prohibits to extradite its citizens, the requested State shall charge
such persons who commit a Terrorist Crime in any of the other Contracting States, provided that such act is
punished in either State by a freedom restricting penalty for at least one year or a more severe penalty. The
nationality of the person requested to be extradited shall be determined on the date of the relevant crime, relying
in this respect on the investigations conducted by the requesting State:
Article 21
If the person requested to be extradited is under investigation or trial or convicted of any other crime in the
requested State, such extradition shall be extended until the completion of the investigation or trial or the
execution of the penalty. However, the requested State may deliver such person temporarily for investigation or
trial, provided that such person shall be redelivered to such State prior to the execution of the penalty against
such person in the requesting State.
Article 22
For the purpose of extradition hereunder, the difference in the legal adaptation of a crime, whether as a felony or
a misdemeanor, or the applicable penalty in the local laws of the two Contracting States shall not apply,
provided that such crime is punishable under the laws of both States by a freedom restricting penalty for at least
one year or a more severe penalty.
Article 23
The Contracting States shall provide the maximum legal and judicial assistance as required for enquiries,
investigations or judicial proceedings in connection with Terrorist Crimes.
Article 24
The Contracting States shall provide such assistance and help to make such enquiries and investigations in
connection with Terrorist Crimes committed in any Contracting State, on demand by such State.
Article 25
The Contracting States shall provide such maximum possible cooperation to execute the requests for legal
assistance in connection with a criminal case arising from a Terrorist Crime, in accordance with the GCC
Agreement to execute judgments, requests for legal assistance and summons.
Article 26
The Contracting States shall cooperate to seize items and revenues from, used in or related to a Terrorist Crime
and to deliver such items and revenues to the requesting State, whether in the possession of the persons to be
delivered or in the possession of third parties, and whether such persons are delivered or not, without prejudice
to the rights of any Contracting State or bona fide third parties.
Article 27
A State requested to deliver the above items and revenues shall take all such measures and precautions as
required to perform its obligation to deliver the same. Such state may also temporarily keep such items or
revenues if required for criminal proceedings taken by such State or deliver such items or revenues to the
requesting State, provided that such items and revenues shall be recovered from that State for the same reason.
Article 28
The Contracting States shall examine the clues and traces arising from any Terrorist Crime committed in the

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territory of a Contracting State against another Contracting State, and take such steps as required to preserve
such clues and traces and procure to confirm their effect as legal evidence. The Contracting States may provide
the State against whose interests the crime has been committed of the result on demand. Neither State may
provide such result to any other State without the consent of both States.
Chapter Five Jurisdiction
Article 29
The Contracting States shall take such legal procedures to confirm their respective jurisdiction to consider the
crimes provided herein:
A. If the crime is committed in the territory of the State.
B. If the crime is committed on board a vessel flying the flag of the State or an airplane registered in that State
at the time of the crime.
C. If the crime is committed by a national of the State.
Article 30
The jurisdiction of a Contracting State may extend to any of the crimes as provided hereunder:
A. If the crime is committed against one of its nationals.

B. If the crime is planned or prepared for outside the territory of the State to be committed in that territory.
C. If the person who committed the crime has no known nationality, but his ordinary place of residence is
located in that State.
D. If the crime is committed against a public utility of the State outside its territory.
Article 31
Every Contracting State shall follow the required procedures to confirm its jurisdiction to consider the crimes as
contemplated by this Agreement if the suspect is inside its territory, or deliver such suspect to another
Contracting State on its demand.
Article 32
If any Contracting State having jurisdiction to a crime contemplated by this Agreement is notified or learns by
any other means that one or more other Contracting State is conducting an investigation or taking a legal action
in connection with the same acts, the competent authorities in such States shall cooperate concerning the
procedures to be taken.
Chapter Six Extradition Mechanisms
Article 33
Requests for extradition, security or legal assistance and documents, items and revenues and the summons for
witnesses or experts shall be directly exchanged between the competent authorities in the Contracting States or
through the Ministries of Interior or Justice or any similar authority or by diplomatic ways.
The procedures as provided by the requesting and requested States' laws and regulations and the Conventions
and Treaties to which the requesting or requested State is a party shall apply.

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Article 34
The request for extradition shall be in writing and accompanied by:
A. The original conviction judgment, the arrest order or any other papers having the same power, issued
according to such circumstances as provided by the law of the requesting State, or a true copy thereof.
B. A statement of the acts, the subject matter of the request for extradition, including the time, venue and legal
adaptation of such acts, referring to the applicable legal provisions, and a copy of those articles.
C. The description of the person requested to be extradited to the largest possible extent of accuracy, and any
other statements that may identify such person and his nationality and identity.
Article 35
1. The judicial authorities in the requesting State may request the other State by any means of communication in
writing to keep a person in protective custody until the arrival of the request for extradition.
2. In such event, the requested State may keep the concerned person in protective custody. However, if the
request for extradition is not accompanied by the required documents as set out in the preceding Article, such
person may not be detained in excess of 30 days from the date (of arrest/conviction?)
Article 36
The requesting State shall send a request, together with the documents as set out in Article 34 of this Agreement
. If the requested State finds that such application is valid, the competent authorities shall execute such request
in accordance with its laws, provided that the requesting State shall be notified without any delay of any steps
taken in connection with such request.
Article 37
1. Notwithstanding the provisions of the preceding Articles 35 and 36, the period of the protective custody may
not exceed 60 days from the date of arrest.
2. Temporary release may be ordered during the period as set out in the preceding clause, provided that the
requested State shall take such steps as necessary to prevent the escape of the wanted person.
3. Such release shall not prevent the re-arrest and subsequent extradition of such person if the request for
extradition is received after such release.
Article 38
If the requested State decides that further explanations are required to confirm that the conditions of this
Chapter are met, the requesting State shall be notified accordingly and a date to provide such explanations shall
be agreed.
Article 39
If the requested State receives several requests for extradition by different States, either for the same acts or for
different acts, the requested State shall decide on such requests, taking into account all the circumstances,
particularly possible subsequent extradition, the date of receiving each request, the extent of gravity of the
crimes and where the crimes have been committed.
Article 40
Subject to the applicable laws and regulations, the Contracting States shall cooperate in connection with the
appearance of the witnesses and experts before the competent authorities of the requesting State. No step or

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measure may be taken and no penalty may be applied to the extent it involves coercion of the witness or expert
that may reject to come to the requesting State. If such witness or expert comes to the requesting State
voluntarily, he/she shall be summoned to appear in accordance with the provisions of its laws or regulations.
Irrespective of his/her nationality, no witness or expert may be interrogated or prosecuted and no freedom
restricting action against former acts or judgments prior to coming to the requesting State may be taken.
A witness or expert shall not benefit from the protection as provided by the preceding clauses if such witness or
expert stays in the requesting State for over 30 days upon completion of his/her task and was able to leave, or if
such witness or expert returns to the territory of the requesting State after leaving it.
The requesting State shall make all such arrangements as required to ensure proper security and legal protection
of the witness or expert.
Article 41
Each State shall bear its own costs for the enforcement of the provisions of this agreement.
The requesting State shall bear the costs related to the extradition of wanted persons, the delivery of items and
revenues related to the crime or the appearance of the witnesses and experts.
Chapter Seven Final Provisions
Article 43
The Contracting States shall procure to include the Terrorist Crimes as contemplated by this Agreement in their
respective local laws and regulations as serious crimes, and shall decide the appropriate penalties to reflect how
serious such Terrorist Crimes are.
Article 44
This Agreement shall be without prejudice to the bipartite or multipartite Conventions or Treaties to which any
of the Contracting States is a party.
Article 45
The Contracting GCC States shall ratify this Agreement in accordance with their respective local regulations.
The ratification documents shall be filed with the GCC Secretary General, which shall take the required steps to
file the ratification documents and to notify the Contracting States thereof.
Article 46
This Agreement shall come in force after 30 days from the date of filing the ratification documents by two
thirds of the GCC States. This Agreement shall not be effective against any other State until the ratification
document is filed with the GCC Secretary General, and only after 30 days from the date of such filing.
Article 47
No Contracting State may make any reservations in conflict with the purpose of this Agreement.
Article 48
This Agreement may not be amended after its effective date other than with the consent of the GCC Supreme
Council, subject to the provision of Article 45 hereof.

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Article 49
Any Contracting State may withdraw from this Agreement under a notice in writing to the GCC Secretary
General. Such withdrawal shall be effective only after 6 months from the date of the notice. However, this
Agreement shall remain applicable to such requests made prior to the expiry of such period.
This Agreement is made in the city of Kuwait, State of Kuwait, on 15 Rabia Awal 1425 Hijri, corresponding to
4 May 2004 in one original copy to be filed with the GCC Secretary General and true copies to be delivered to
each of the Contracting States signing or joining this Agreement.
[Signed]
In witness whereof, the GCC Ministers of Interior have executed this Agreement.
United Arab Emirates: (signed)

Kingdom of Bahrain: (signed)
Kingdom of Saudi Arabia: (signed)
Sultanate of Oman: (signed)
State of Qatar: (signed)
State of Kuwait: (signed)

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Annex 15
UNCITRAL Model Law on International Commercial Arbitration 1985,

with amendments as adopted in 2006
United Nations, Vienna, 2008, United Nations Publication Sales No. E.08.V.4.
403
Annex 15
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW
UNCITRAL Model Law on

International Commercial
Arbitration
1985
With amendments
as adopted in 2006
UNITED NATIONS
Vienna, 2008
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NOTE
Symbols of United Nations documents are composed of capital letters

combined with figures. Mention of such a symbol indicates a reference to a
United Nations document.
UNITED NATIONS PUBLICATION

Sales No. E.08.V.4
ISBN 978-92-1-133773-0
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Contents
Page
Resolutions adopted by the General Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

General Assembly Resolution 40/72 (11 December 1985) . . . . . . . . . . . . . . vii
General Assembly Resolution 61/33 (4 December 2006) . . . . . . . . . . . . . . .viii
Part One
UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL

ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Chapter I. General provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Article 1. Scope of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article 2. Definitions and rules of interpretation . . . . . . . . . . . . . . . . . . . . 2
Article 2A. International origin and general principles . . . . . . . . . . . . . . . . 3
Article 3. Receipt of written communications . . . . . . . . . . . . . . . . . . . . . . 3
Article 4. Waiver of right to object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Article 5. Extent of court intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Article 6. Court or other authority for certain functions of arbitration
assistance and supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Chapter II. Arbitration agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Article 7. Option I Definition and form of arbitration agreement . . . . . . 4
Option II Definition of arbitration agreement . . . . . . . . . . . . . 5
Article 8. Arbitration agreement and substantive claim before court . . . 5
Article 9. Arbitration agreement and interim measures by court . . . . . . . 5
Chapter III. Composition of arbitral tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Article 10. Number of arbitrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Article 11. Appointment of arbitrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Article 12. Grounds for challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Article 13. Challenge procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Article 14. Failure or impossibility to act . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Article 15. Appointment of substitute arbitrator . . . . . . . . . . . . . . . . . . . . . 8
Chapter IV. Jurisdiction of arbitral tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Article 16. Competence of arbitral tribunal to rule on its jurisdiction . . . 8
iii
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Page
Chapter IV A. Interim measures and preliminary orders . . . . . . . . . . . . . . . . . . . 9

Section 1. Interim measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Article 17. Power of arbitral tribunal to order interim measures . . . 9
Article 17 A. Conditions for granting interim measures. . . . . . . . . . . 10
Section 2. Preliminary orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Article 17 B. Applications for preliminary orders and conditions
for granting preliminary orders . . . . . . . . . . . . . . . . . . . 10
Article 17 C. Specific regime for preliminary orders . . . . . . . . . . . . . 10
Section 3. Provisions applicable to interim measures and preliminary

orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Article 17 D. Modification, suspension, termination . . . . . . . . . . . . . . 11
Article 17 E. Provision of security . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Article 17 F. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Article 17 G. Costs and damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4. Recognition and enforcement of interim measures . . . . . . . . . . 12

Article 17 H. Recognition and enforcement . . . . . . . . . . . . . . . . . . . . 12
Article 17 I. Grounds for refusing recognition or enforcement . . . . 13
Section 5. Court-ordered interim measures . . . . . . . . . . . . . . . . . . . . . . . . . 13

Article 17 J. Court-ordered interim measures . . . . . . . . . . . . . . . . . . 13
Chapter V. Conduct of arbitral proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Article 18. Equal treatment of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Article 19. Determination of rules of procedure . . . . . . . . . . . . . . . . . . . . . 14
Article 20. Place of arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Article 21. Commencement of arbitral proceedings . . . . . . . . . . . . . . . . . . 14
Article 22. Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Article 23. Statements of claim and defence. . . . . . . . . . . . . . . . . . . . . . . . 15
Article 24. Hearings and written proceedings . . . . . . . . . . . . . . . . . . . . . . . 15
Article 25. Default of a party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Article 26. Expert appointed by arbitral tribunal . . . . . . . . . . . . . . . . . . . . 16
Article 27. Court assistance in taking evidence . . . . . . . . . . . . . . . . . . . . . 16
Chapter VI. Making of award and termination of proceedings . . . . . . . . . . . . . 17

Article 28. Rules applicable to substance of dispute . . . . . . . . . . . . . . . . . 17
Article 29. Decision-making by panel of arbitrators. . . . . . . . . . . . . . . . . . 17
Article 30. Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Article 31. Form and contents of award . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Article 32. Termination of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Article 33. Correction and interpretation of award; additional award . . . 18
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Page
Chapter VII. Recourse against award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Article 34. Application for setting aside as exclusive recourse against
arbitral award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Chapter VIII. Recognition and enforcement of awards . . . . . . . . . . . . . . . . . . . . 20

Article 35. Recognition and enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Article 36. Grounds for refusing recognition or enforcement . . . . . . . . . 21
Part Two
EXPLANATORY NOTE BY THE UNCITRAL SECRETARIAT ON THE

MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION . . . . . 23
A. Background to the Model Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

1. Inadequacy of domestic laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2. Disparity between national laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Salient features of the Model Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

1. Special procedural regime for international commercial
arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2. Arbitration agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3. Composition of arbitral tribunal. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4. Jurisdiction of arbitral tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5. Conduct of arbitral proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6. Making of award and termination of proceedings . . . . . . . . . . . . . 33
7. Recourse against award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8. Recognition and enforcement of awards . . . . . . . . . . . . . . . . . . . . . 36
Part Three
“Recommendation regarding the interpretation of article II, paragraph 2,

and article VII, paragraph 1, of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, done in New York, 10 June
1958”, adopted by the United Nations Commission on International
Trade Law on 7 July 2006 at its thirty-ninth session . . . . . . . . . . . . . . . . . . 39
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Resolutions adopted by the General Assembly
40/72. Model Law on International Commercial Arbitration

of the United Nations Commission on International Trade Law
The General Assembly,
Recognizing the value of arbitration as a method of settling disputes arising in

international commercial relations,
Convinced that the establishment of a model law on arbitration that is accept-

able to States with different legal, social and economic systems contributes to the
development of harmonious international economic relations,
Noting that the Model Law on International Commercial Arbitration1 was

adopted by the United Nations Commission on International Trade Law at its
eighteenth session, after due deliberation and extensive consultation with arbitral
institutions and individual experts on international commercial arbitration,
Convinced that the Model Law, together with the Convention on the Recogni-
tion and Enforcement of Foreign Arbitral Awards2 and the Arbitration Rules of the
United Nations Commission on International Trade Law3 recommended by the
General Assembly in its resolution 31/98 of 15 December 1976, significantly
contributes to the establishment of a unified legal framework for the fair and efficient
settlement of disputes arising in international commercial relations,
1. Requests the Secretary-General to transmit the text of the Model Law on

International Commercial Arbitration of the United Nations Commission on Inter-
national Trade Law, together with the travaux préparatoires from the eighteenth
session of the Commission, to Governments and to arbitral institutions and other
interested bodies, such as chambers of commerce;
2. Recommends that all States give due consideration to the Model Law on
International Commercial Arbitration, in view of the desirability of uniformity of
the law of arbitral procedures and the specific needs of international commercial
arbitration practice.
112th plenary meeting
11 December 1985
1
Official Records of the General Assembly, Fortieth Session, Supplement No. 17 (A/40/17), annex I.
2
United Nations, Treaty Series, vol. 330, No. 4739, p. 38.
3
United Nations publication, Sales No. E.77.V.6.
vii
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[on the report of the Sixth Committee (A/61/453)]
61/33. Revised articles of the Model Law on International Commercial

Arbitration of the United Nations Commission on International Trade Law,
and the recommendation regarding the interpretation of article II, paragraph 2,
and article VII, paragraph 1, of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, done at New York, 10 June 1958
The General Assembly,
Recognizing the value of arbitration as a method of settling disputes arising in

the context of international commercial relations,
Recalling its resolution 40/72 of 11 December 1985 regarding the Model Law
on International Commercial Arbitration,1
Recognizing the need for provisions in the Model Law to conform to current
practices in international trade and modern means of contracting with regard to the
form of the arbitration agreement and the granting of interim measures,
Believing that revised articles of the Model Law on the form of the arbitration
agreement and interim measures reflecting those current practices will significantly
enhance the operation of the Model Law,
Noting that the preparation of the revised articles of the Model Law on the
form of the arbitration agreement and interim measures was the subject of due
deliberation and extensive consultations with Governments and interested circles
and would contribute significantly to the establishment of a harmonized legal frame-
work for a fair and efficient settlement of international commercial disputes,
Believing that, in connection with the modernization of articles of the Model

Law, the promotion of a uniform interpretation and application of the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York,
10 June 1958,2 is particularly timely,
1. Expresses its appreciation to the United Nations Commission on Interna-

tional Trade Law for formulating and adopting the revised articles of its Model Law
on International Commercial Arbitration on the form of the arbitration agreement
and interim measures, the text of which is contained in annex I to the report of the
United Nations Commission on International Trade Law on the work of its thirty-
ninth session,3 and recommends that all States give favourable consideration to the
enactment of the revised articles of the Model Law, or the revised Model Law
on International Commercial Arbitration of the United Nations Commission on
1
Official Records of the General Assembly, Fortieth Session, Supplement No. 17 (A/40/17),
annex I.
2
United Nations, Treaty Series, vol. 330, No. 4739.
3
Official Records of the General Assembly, Sixty-first Session, Supplement No. 17 (A/61/17).
viii
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International Trade Law, when they enact or revise their laws, in view of the desir-
ability of uniformity of the law of arbitral procedures and the specific needs of
international commercial arbitration practice;
2. Also expresses its appreciation to the United Nations Commission on

International Trade Law for formulating and adopting the recommendation regarding
the interpretation of article II, paragraph 2, and article VII, paragraph 1, of the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done
at New York, 10 June 1958,2 the text of which is contained in annex II to the report
of the United Nations Commission on International Trade Law on the work of its
thirty-ninth session;3
3. Requests the Secretary-General to make all efforts to ensure that the revised
articles of the Model Law and the recommendation become generally known and
available.
64th plenary meeting

4 December 2006
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Part One
UNCITRAL Model Law on International

Commercial Arbitration
(United Nations documents A/40/17,
annex I and A/61/17, annex I)
(As adopted by the United Nations Commission on

International Trade Law on 21 June 1985,
and as amended by the United Nations Commission
on International Trade Law on 7 July 2006)
CHAPTER I. GENERAL PROVISIONS
Article 1. Scope of application1
(1) This Law applies to international commercial2 arbitration, subject to

any agreement in force between this State and any other State or States.
(2) The provisions of this Law, except articles 8, 9, 17 H, 17 I, 17 J, 35

and 36, apply only if the place of arbitration is in the territory of this
State.
(Article 1(2) has been amended by the Commission at its thirty-ninth session, in 2006)
(3) An arbitration is international if:

(a) the parties to an arbitration agreement have, at the time of the conclu-
sion of that agreement, their places of business in different States; or
1
Article headings are for reference purposes only and are not to be used for purposes of
interpretation.
2
The term “commercial” should be given a wide interpretation so as to cover matters arising from
all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature
include, but are not limited to, the following transactions: any trade transaction for the supply or exchange
of goods or services; distribution agreement; commercial representation or agency; factoring; leasing;
construction of works; consulting; engineering; licensing; investment; financing; banking; insurance;
exploitation agreement or concession; joint venture and other forms of industrial or business cooperation;
carriage of goods or passengers by air, sea, rail or road.
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2 UNCITRAL Model Law on International Commercial Arbitration
(b) one of the following places is situated outside the State in which
the parties have their places of business:
(i) the place of arbitration if determined in, or pursuant to, the
arbitration agreement;
(ii) any place where a substantial part of the obligations of the
commercial relationship is to be performed or the place with
which the subject-matter of the dispute is most closely con-
nected; or
(c) the parties have expressly agreed that the subject matter of the
arbitration agreement relates to more than one country.
(4) For the purposes of paragraph (3) of this article:

(a) if a party has more than one place of business, the place of business
is that which has the closest relationship to the arbitration agreement;
(b) if a party does not have a place of business, reference is to be
made to his habitual residence.
(5) This Law shall not affect any other law of this State by virtue of which
certain disputes may not be submitted to arbitration or may be submitted to
arbitration only according to provisions other than those of this Law.
Article 2. Definitions and rules of interpretation
For the purposes of this Law:

(a) “arbitration” means any arbitration whether or not administered
by a permanent arbitral institution;
(b) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
(c) “court” means a body or organ of the judicial system of a State;
(d) where a provision of this Law, except article 28, leaves the parties
free to determine a certain issue, such freedom includes the right of the
parties to authorize a third party, including an institution, to make that
determination;
(e) where a provision of this Law refers to the fact that the parties
have agreed or that they may agree or in any other way refers to an agree-
ment of the parties, such agreement includes any arbitration rules referred
to in that agreement;
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Part One. UNCITRAL Model Law on International Commercial Arbitration 3
(f) where a provision of this Law, other than in articles 25(a) and
32(2) (a), refers to a claim, it also applies to a counter-claim, and where it
refers to a defence, it also applies to a defence to such counter-claim.
Article 2 A. International origin and general principles

(As adopted by the Commission at its thirty-ninth session, in 2006)
(1) In the interpretation of this Law, regard is to be had to its international

origin and to the need to promote uniformity in its application and the
observance of good faith.
(2) Questions concerning matters governed by this Law which are not
expressly settled in it are to be settled in conformity with the general
principles on which this Law is based.
Article 3. Receipt of written communications
(1) Unless otherwise agreed by the parties:

(a) any written communication is deemed to have been received if it
is delivered to the addressee personally or if it is delivered at his place of
business, habitual residence or mailing address; if none of these can be found
after making a reasonable inquiry, a written communication is deemed to
have been received if it is sent to the addressee’s last-known place of busi-
ness, habitual residence or mailing address by registered letter or any other
means which provides a record of the attempt to deliver it;
(b) the communication is deemed to have been received on the day
it is so delivered.
(2) The provisions of this article do not apply to communications in court

proceedings.
Article 4. Waiver of right to object
A party who knows that any provision of this Law from which the parties
may derogate or any requirement under the arbitration agreement has not
been complied with and yet proceeds with the arbitration without stating his
objection to such non-compliance without undue delay or, if a time-limit is
provided therefor, within such period of time, shall be deemed to have
waived his right to object.
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Article 5. Extent of court intervention
In matters governed by this Law, no court shall intervene except where so

provided in this Law.
Article 6. Court or other authority for certain functions

of arbitration assistance and supervision
The functions referred to in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2)
shall be performed by ... [Each State enacting this model law specifies the
court, courts or, where referred to therein, other authority competent to
perform these functions.]
CHAPTER II. ARBITRATION AGREEMENT
Option I
Article 7. Definition and form of arbitration agreement

(1) “Arbitration agreement” is an agreement by the parties to submit to

arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether contractual
or not. An arbitration agreement may be in the form of an arbitration clause
in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing.
(3) An arbitration agreement is in writing if its content is recorded in any

form, whether or not the arbitration agreement or contract has been con-
cluded orally, by conduct, or by other means.
(4) The requirement that an arbitration agreement be in writing is met by

an electronic communication if the information contained therein is acces-
sible so as to be useable for subsequent reference; “electronic communica-
tion” means any communication that the parties make by means of data
messages; “data message” means information generated, sent, received or
stored by electronic, magnetic, optical or similar means, including, but not
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limited to, electronic data interchange (EDI), electronic mail, telegram, telex
or telecopy.
(5) Furthermore, an arbitration agreement is in writing if it is contained in

an exchange of statements of claim and defence in which the existence of
an agreement is alleged by one party and not denied by the other.
(6) The reference in a contract to any document containing an arbitration

clause constitutes an arbitration agreement in writing, provided that the ref-
erence is such as to make that clause part of the contract.
Option II
Article 7. Definition of arbitration agreement

“Arbitration agreement” is an agreement by the parties to submit to arbitra-

tion all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether contractual
or not.
Article 8. Arbitration agreement and substantive claim before court
(1) A court before which an action is brought in a matter which is the

subject of an arbitration agreement shall, if a party so requests not later than
when submitting his first statement on the substance of the dispute, refer
the parties to arbitration unless it finds that the agreement is null and void,
inoperative or incapable of being performed.
(2) Where an action referred to in paragraph (1) of this article has been
brought, arbitral proceedings may nevertheless be commenced or continued,
and an award may be made, while the issue is pending before the court.
Article 9. Arbitration agreement and interim measures by court
It is not incompatible with an arbitration agreement for a party to request,

before or during arbitral proceedings, from a court an interim measure of
protection and for a court to grant such measure.
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CHAPTER III. COMPOSITION OF ARBITRAL TRIBUNAL
Article 10. Number of arbitrators
(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be three.
Article 11. Appointment of arbitrators
(1) No person shall be precluded by reason of his nationality from acting

as an arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of appointing the arbitrator
or arbitrators, subject to the provisions of paragraphs (4) and (5) of this
article.
(3) Failing such agreement,

(a) in an arbitration with three arbitrators, each party shall appoint
one arbitrator, and the two arbitrators thus appointed shall appoint the third
arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt
of a request to do so from the other party, or if the two arbitrators fail to
agree on the third arbitrator within thirty days of their appointment, the
appointment shall be made, upon request of a party, by the court or other
authority specified in article 6;
(b) in an arbitration with a sole arbitrator, if the parties are unable to
agree on the arbitrator, he shall be appointed, upon request of a party, by
the court or other authority specified in article 6.
(4) Where, under an appointment procedure agreed upon by the parties,

(a) a party fails to act as required under such procedure, or
(b) the parties, or two arbitrators, are unable to reach an agreement
expected of them under such procedure, or
(c) a third party, including an institution, fails to perform any function
entrusted to it under such procedure,
any party may request the court or other authority specified in article 6 to
take the necessary measure, unless the agreement on the appointment pro-
cedure provides other means for securing the appointment.
(5) A decision on a matter entrusted by paragraph (3) or (4) of this article

to the court or other authority specified in article 6 shall be subject to no
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appeal. The court or other authority, in appointing an arbitrator, shall have

due regard to any qualifications required of the arbitrator by the agreement
of the parties and to such considerations as are likely to secure the appoint-
ment of an independent and impartial arbitrator and, in the case of a sole
or third arbitrator, shall take into account as well the advisability of appoint-
ing an arbitrator of a nationality other than those of the parties.
Article 12. Grounds for challenge
(1) When a person is approached in connection with his possible appoint-

ment as an arbitrator, he shall disclose any circumstances likely to give rise
to justifiable doubts as to his impartiality or independence. An arbitrator,
from the time of his appointment and throughout the arbitral proceedings,
shall without delay disclose any such circumstances to the parties unless
they have already been informed of them by him.
(2) An arbitrator may be challenged only if circumstances exist that give rise
to justifiable doubts as to his impartiality or independence, or if he does not
possess qualifications agreed to by the parties. A party may challenge an arbitra-
tor appointed by him, or in whose appointment he has participated, only for
reasons of which he becomes aware after the appointment has been made.
Article 13. Challenge procedure
(1) The parties are free to agree on a procedure for challenging an arbitra-
tor, subject to the provisions of paragraph (3) of this article.
(2) Failing such agreement, a party who intends to challenge an arbitrator

shall, within fifteen days after becoming aware of the constitution of the
arbitral tribunal or after becoming aware of any circumstance referred to in
article 12(2), send a written statement of the reasons for the challenge to
the arbitral tribunal. Unless the challenged arbitrator withdraws from his
office or the other party agrees to the challenge, the arbitral tribunal shall
decide on the challenge.
(3) If a challenge under any procedure agreed upon by the parties or under
the procedure of paragraph (2) of this article is not successful, the challeng-
ing party may request, within thirty days after having received notice of the
decision rejecting the challenge, the court or other authority specified in
article 6 to decide on the challenge, which decision shall be subject to no
appeal; while such a request is pending, the arbitral tribunal, including the
challenged arbitrator, may continue the arbitral proceedings and make an award.
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Article 14. Failure or impossibility to act
(1) If an arbitrator becomes de jure or de facto unable to perform his func-

tions or for other reasons fails to act without undue delay, his mandate
terminates if he withdraws from his office or if the parties agree on the
termination. Otherwise, if a controversy remains concerning any of these
grounds, any party may request the court or other authority specified in
article 6 to decide on the termination of the mandate, which decision shall
be subject to no appeal.
(2) If, under this article or article 13(2), an arbitrator withdraws from his
office or a party agrees to the termination of the mandate of an arbitrator,
this does not imply acceptance of the validity of any ground referred to in
this article or article 12(2).
Article 15. Appointment of substitute arbitrator
Where the mandate of an arbitrator terminates under article 13 or 14 or

because of his withdrawal from office for any other reason or because of
the revocation of his mandate by agreement of the parties or in any other
case of termination of his mandate, a substitute arbitrator shall be appointed
according to the rules that were applicable to the appointment of the arbitra-
tor being replaced.
CHAPTER IV. JURISDICTION OF ARBITRAL TRIBUNAL
Article 16. Competence of arbitral tribunal to rule on its jurisdiction
(1) The arbitral tribunal may rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration agree-
ment. For that purpose, an arbitration clause which forms part of a contract
shall be treated as an agreement independent of the other terms of the con-
tract. A decision by the arbitral tribunal that the contract is null and void
shall not entail ipso jure the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised
not later than the submission of the statement of defence. A party is not
precluded from raising such a plea by the fact that he has appointed, or
participated in the appointment of, an arbitrator. A plea that the arbitral tri-
bunal is exceeding the scope of its authority shall be raised as soon as the
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matter alleged to be beyond the scope of its authority is raised during the
arbitral proceedings. The arbitral tribunal may, in either case, admit a later
plea if it considers the delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of
this article either as a preliminary question or in an award on the merits. If
the arbitral tribunal rules as a preliminary question that it has jurisdiction,
any party may request, within thirty days after having received notice of
that ruling, the court specified in article 6 to decide the matter, which deci-
sion shall be subject to no appeal; while such a request is pending, the
arbitral tribunal may continue the arbitral proceedings and make an award.
CHAPTER IV A. INTERIM MEASURES

AND PRELIMINARY ORDERS
Section 1. Interim measures
Article 17. Power of arbitral tribunal to order interim measures
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the
request of a party, grant interim measures.
(2) An interim measure is any temporary measure, whether in the form of

an award or in another form, by which, at any time prior to the issuance of
the award by which the dispute is finally decided, the arbitral tribunal orders
a party to:
(a) Maintain or restore the status quo pending determination of the
dispute;
(b) Take action that would prevent, or refrain from taking action that
is likely to cause, current or imminent harm or prejudice to the arbitral
process itself;
(c) Provide a means of preserving assets out of which a subsequent
award may be satisfied; or
(d) Preserve evidence that may be relevant and material to the resolu-
tion of the dispute.
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Article 17 A. Conditions for granting interim measures
(1) The party requesting an interim measure under article 17(2)(a), (b) and
(c) shall satisfy the arbitral tribunal that:
(a) Harm not adequately reparable by an award of damages is likely
to result if the measure is not ordered, and such harm substantially outweighs
the harm that is likely to result to the party against whom the measure is
directed if the measure is granted; and
(b) There is a reasonable possibility that the requesting party will
succeed on the merits of the claim. The determination on this possibility
shall not affect the discretion of the arbitral tribunal in making any subse-
quent determination.
(2) With regard to a request for an interim measure under article 17(2)(d),
the requirements in paragraphs (1)(a) and (b) of this article shall apply only
to the extent the arbitral tribunal considers appropriate.
Section 2. Preliminary orders
Article 17 B. Applications for preliminary orders and

conditions for granting preliminary orders
(1) Unless otherwise agreed by the parties, a party may, without notice to
any other party, make a request for an interim measure together with an
application for a preliminary order directing a party not to frustrate the
purpose of the interim measure requested.
(2) The arbitral tribunal may grant a preliminary order provided it considers
that prior disclosure of the request for the interim measure to the party
against whom it is directed risks frustrating the purpose of the measure.
(3) The conditions defined under article 17A apply to any preliminary
order, provided that the harm to be assessed under article 17A(1)(a), is the
harm likely to result from the order being granted or not.
Article 17 C. Specific regime for preliminary orders
(1) Immediately after the arbitral tribunal has made a determination in

respect of an application for a preliminary order, the arbitral tribunal shall give
notice to all parties of the request for the interim measure, the application for
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the preliminary order, the preliminary order, if any, and all other communi-
cations, including by indicating the content of any oral communication, be-
tween any party and the arbitral tribunal in relation thereto.
(2) At the same time, the arbitral tribunal shall give an opportunity to any
party against whom a preliminary order is directed to present its case at the
earliest practicable time.
(3) The arbitral tribunal shall decide promptly on any objection to the
preliminary order.
(4) A preliminary order shall expire after twenty days from the date on
which it was issued by the arbitral tribunal. However, the arbitral tribunal
may issue an interim measure adopting or modifying the preliminary order,
after the party against whom the preliminary order is directed has been given
notice and an opportunity to present its case.
(5) A preliminary order shall be binding on the parties but shall not be
subject to enforcement by a court. Such a preliminary order does not con-
stitute an award.
Section 3. Provisions applicable to interim measures

and preliminary orders
Article 17 D. Modification, suspension, termination
The arbitral tribunal may modify, suspend or terminate an interim

measure or a preliminary order it has granted, upon application of any party
or, in exceptional circumstances and upon prior notice to the parties, on the
arbitral tribunal’s own initiative.
Article 17 E. Provision of security
(1) The arbitral tribunal may require the party requesting an interim
measure to provide appropriate security in connection with the measure.
(2) The arbitral tribunal shall require the party applying for a preliminary
order to provide security in connection with the order unless the arbitral
tribunal considers it inappropriate or unnecessary to do so.
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Article 17 F. Disclosure
(1) The arbitral tribunal may require any party promptly to disclose any
material change in the circumstances on the basis of which the measure was
requested or granted.
(2) The party applying for a preliminary order shall disclose to the arbitral
tribunal all circumstances that are likely to be relevant to the arbitral tribu-
nal’s determination whether to grant or maintain the order, and such obliga-
tion shall continue until the party against whom the order has been requested
has had an opportunity to present its case. Thereafter, paragraph (1) of this
article shall apply.
Article 17 G. Costs and damages
The party requesting an interim measure or applying for a preliminary

order shall be liable for any costs and damages caused by the measure or
the order to any party if the arbitral tribunal later determines that, in the
circumstances, the measure or the order should not have been granted. The
arbitral tribunal may award such costs and damages at any point during the
proceedings.
Section 4. Recognition and enforcement of interim measures
Article 17 H. Recognition and enforcement
(1) An interim measure issued by an arbitral tribunal shall be recognized

as binding and, unless otherwise provided by the arbitral tribunal, enforced
upon application to the competent court, irrespective of the country in which
it was issued, subject to the provisions of article 17 I.
(2) The party who is seeking or has obtained recognition or enforcement

of an interim measure shall promptly inform the court of any termination,
suspension or modification of that interim measure.
(3) The court of the State where recognition or enforcement is sought may,
if it considers it proper, order the requesting party to provide appropriate
security if the arbitral tribunal has not already made a determination with
respect to security or where such a decision is necessary to protect the rights
of third parties.
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Article 17 I. Grounds for refusing recognition or enforcement3
(1) Recognition or enforcement of an interim measure may be refused

only:
(a) At the request of the party against whom it is invoked if the court
is satisfied that:
(i) Such refusal is warranted on the grounds set forth in arti-
cle 36(1)(a)(i), (ii), (iii) or (iv); or
(ii) The arbitral tribunal’s decision with respect to the provision
of security in connection with the interim measure issued
by the arbitral tribunal has not been complied with; or
(iii) The interim measure has been terminated or suspended by
the arbitral tribunal or, where so empowered, by the court
of the State in which the arbitration takes place or under
the law of which that interim measure was granted; or
(b) If the court finds that:
(i) The interim measure is incompatible with the powers con-
ferred upon the court unless the court decides to reformulate
the interim measure to the extent necessary to adapt it to its
own powers and procedures for the purposes of enforcing that
interim measure and without modifying its substance; or
(ii) Any of the grounds set forth in article 36(1)(b)(i) or (ii),
apply to the recognition and enforcement of the interim
measure.
(2) Any determination made by the court on any ground in paragraph (1)
of this article shall be effective only for the purposes of the application to
recognize and enforce the interim measure. The court where recognition or
enforcement is sought shall not, in making that determination, undertake a
review of the substance of the interim measure.
Section 5. Court-ordered interim measures
Article 17 J. Court-ordered interim measures
A court shall have the same power of issuing an interim measure in

relation to arbitration proceedings, irrespective of whether their place is in
3
The conditions set forth in article 17 I are intended to limit the number of circumstances in which
the court may refuse to enforce an interim measure. It would not be contrary to the level of harmoniza-
tion sought to be achieved by these model provisions if a State were to adopt fewer circumstances in
which enforcement may be refused.
425
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the territory of this State, as it has in relation to proceedings in courts. The

court shall exercise such power in accordance with its own procedures in
consideration of the specific features of international arbitration.
CHAPTER V. CONDUCT OF ARBITRAL PROCEEDINGS
Article 18. Equal treatment of parties
The parties shall be treated with equality and each party shall be given a
full opportunity of presenting his case.
Article 19. Determination of rules of procedure
(1) Subject to the provisions of this Law, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provi-
sions of this Law, conduct the arbitration in such manner as it considers
appropriate. The power conferred upon the arbitral tribunal includes the
power to determine the admissibility, relevance, materiality and weight of
any evidence.
Article 20. Place of arbitration
(1) The parties are free to agree on the place of arbitration. Failing such
agreement, the place of arbitration shall be determined by the arbitral tribunal
having regard to the circumstances of the case, including the convenience
of the parties.
(2) Notwithstanding the provisions of paragraph (1) of this article, the arbi-
tral tribunal may, unless otherwise agreed by the parties, meet at any place
it considers appropriate for consultation among its members, for hearing
witnesses, experts or the parties, or for inspection of goods, other property
or documents.
Article 21. Commencement of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect

of a particular dispute commence on the date on which a request for that
dispute to be referred to arbitration is received by the respondent.
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Article 22. Language
(1) The parties are free to agree on the language or languages to be used
in the arbitral proceedings. Failing such agreement, the arbitral tribunal shall
determine the language or languages to be used in the proceedings. This
agreement or determination, unless otherwise specified therein, shall apply
to any written statement by a party, any hearing and any award, decision or
other communication by the arbitral tribunal.
(2) The arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language or languages agreed upon
by the parties or determined by the arbitral tribunal.
Article 23. Statements of claim and defence
(1) Within the period of time agreed by the parties or determined by the
arbitral tribunal, the claimant shall state the facts supporting his claim, the
points at issue and the relief or remedy sought, and the respondent shall
state his defence in respect of these particulars, unless the parties have other-
wise agreed as to the required elements of such statements. The parties may
submit with their statements all documents they consider to be relevant
or may add a reference to the documents or other evidence they will
submit.
(2) Unless otherwise agreed by the parties, either party may amend or
supplement his claim or defence during the course of the arbitral proceed-
ings, unless the arbitral tribunal considers it inappropriate to allow such
amendment having regard to the delay in making it.
Article 24. Hearings and written proceedings
(1) Subject to any contrary agreement by the parties, the arbitral tribunal
shall decide whether to hold oral hearings for the presentation of evidence
or for oral argument, or whether the proceedings shall be conducted on the
basis of documents and other materials. However, unless the parties have
agreed that no hearings shall be held, the arbitral tribunal shall hold such
hearings at an appropriate stage of the proceedings, if so requested by a
party.
(2) The parties shall be given sufficient advance notice of any hearing and
of any meeting of the arbitral tribunal for the purposes of inspection of
goods, other property or documents.
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(3) All statements, documents or other information supplied to the arbitral

tribunal by one party shall be communicated to the other party. Also any
expert report or evidentiary document on which the arbitral tribunal may
rely in making its decision shall be communicated to the parties.
Article 25. Default of a party
Unless otherwise agreed by the parties, if, without showing sufficient

cause,
(a) the claimant fails to communicate his statement of claim in
accordance with article 23(1), the arbitral tribunal shall terminate the
proceedings;
(b) the respondent fails to communicate his statement of defence in
accordance with article 23(1), the arbitral tribunal shall continue the proceed-
ings without treating such failure in itself as an admission of the claimant’s
allegations;
(c) any party fails to appear at a hearing or to produce documentary
evidence, the arbitral tribunal may continue the proceedings and make the
award on the evidence before it.
Article 26. Expert appointed by arbitral tribunal
(1) Unless otherwise agreed by the parties, the arbitral tribunal

(a) may appoint one or more experts to report to it on specific issues
to be determined by the arbitral tribunal;
(b) may require a party to give the expert any relevant information or
to produce, or to provide access to, any relevant documents, goods or other
property for his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the

arbitral tribunal considers it necessary, the expert shall, after delivery of his
written or oral report, participate in a hearing where the parties have the
opportunity to put questions to him and to present expert witnesses in order
to testify on the points at issue.
Article 27. Court assistance in taking evidence
The arbitral tribunal or a party with the approval of the arbitral tribunal may
request from a competent court of this State assistance in taking evidence.
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The court may execute the request within its competence and according to
its rules on taking evidence.
CHAPTER VI. MAKING OF AWARD AND

TERMINATION OF PROCEEDINGS
Article 28. Rules applicable to substance of dispute
(1) The arbitral tribunal shall decide the dispute in accordance with such
rules of law as are chosen by the parties as applicable to the substance of
the dispute. Any designation of the law or legal system of a given State
shall be construed, unless otherwise expressed, as directly referring to the
substantive law of that State and not to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral tribunal shall apply the
law determined by the conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or as amiable com-
positeur only if the parties have expressly authorized it to do so.
(4) In all cases, the arbitral tribunal shall decide in accordance with the
terms of the contract and shall take into account the usages of the trade
applicable to the transaction.
Article 29. Decision-making by panel of arbitrators
In arbitral proceedings with more than one arbitrator, any decision of the
arbitral tribunal shall be made, unless otherwise agreed by the parties, by a
majority of all its members. However, questions of procedure may be decided
by a presiding arbitrator, if so authorized by the parties or all members of
the arbitral tribunal.
Article 30. Settlement
(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral
tribunal shall terminate the proceedings and, if requested by the parties and
not objected to by the arbitral tribunal, record the settlement in the form of
an arbitral award on agreed terms.
(2) An award on agreed terms shall be made in accordance with the provi-
sions of article 31 and shall state that it is an award. Such an award has the
same status and effect as any other award on the merits of the case.
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Article 31. Form and contents of award
(1) The award shall be made in writing and shall be signed by the arbitra-
tor or arbitrators. In arbitral proceedings with more than one arbitrator, the
signatures of the majority of all members of the arbitral tribunal shall
suffice, provided that the reason for any omitted signature is stated.
(2) The award shall state the reasons upon which it is based, unless the
parties have agreed that no reasons are to be given or the award is an award
on agreed terms under article 30.
(3) The award shall state its date and the place of arbitration as determined
in accordance with article 20(1). The award shall be deemed to have been
made at that place.
(4) After the award is made, a copy signed by the arbitrators in accordance
with paragraph (1) of this article shall be delivered to each party.
Article 32. Termination of proceedings
(1) The arbitral proceedings are terminated by the final award or by an order
of the arbitral tribunal in accordance with paragraph (2) of this article.
(2) The arbitral tribunal shall issue an order for the termination of the arbi-
tral proceedings when:
(a) the claimant withdraws his claim, unless the respondent objects
thereto and the arbitral tribunal recognizes a legitimate interest on his part
in obtaining a final settlement of the dispute;
(b) the parties agree on the termination of the proceedings;
(c) the arbitral tribunal finds that the continuation of the proceedings
has for any other reason become unnecessary or impossible.
(3) The mandate of the arbitral tribunal terminates with the termination of
the arbitral proceedings, subject to the provisions of articles 33 and 34(4).
Article 33. Correction and interpretation of award; additional award
(1) Within thirty days of receipt of the award, unless another period of
time has been agreed upon by the parties:
(a) a party, with notice to the other party, may request the arbitral
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tribunal to correct in the award any errors in computation, any clerical or

typographical errors or any errors of similar nature;
(b) if so agreed by the parties, a party, with notice to the other party,
may request the arbitral tribunal to give an interpretation of a specific point
or part of the award.
If the arbitral tribunal considers the request to be justified, it shall make the
correction or give the interpretation within thirty days of receipt of the
request. The interpretation shall form part of the award.
(2) The arbitral tribunal may correct any error of the type referred to in
paragraph (1)(a) of this article on its own initiative within thirty days of the
date of the award.
(3) Unless otherwise agreed by the parties, a party, with notice to the other
party, may request, within thirty days of receipt of the award, the arbitral
tribunal to make an additional award as to claims presented in the arbitral
proceedings but omitted from the award. If the arbitral tribunal considers
the request to be justified, it shall make the additional award within sixty
days.
(4) The arbitral tribunal may extend, if necessary, the period of time within
which it shall make a correction, interpretation or an additional award under
paragraph (1) or (3) of this article.
(5) The provisions of article 31 shall apply to a correction or interpretation

of the award or to an additional award.
CHAPTER VII. RECOURSE AGAINST AWARD
Article 34. Application for setting aside as exclusive

recourse against arbitral award
(1) Recourse to a court against an arbitral award may be made only by an

application for setting aside in accordance with paragraphs (2) and (3) of
this article.
(2) An arbitral award may be set aside by the court specified in article 6
only if:
(a) the party making the application furnishes proof that:
(i) a party to the arbitration agreement referred to in article 7
was under some incapacity; or the said agreement is not
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valid under the law to which the parties have subjected it or,
failing any indication thereon, under the law of this State; or
(ii) the party making the application was not given proper notice
of the appointment of an arbitrator or of the arbitral proceed-
ings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not fall-
ing within the terms of the submission to arbitration, or contains
decisions on matters beyond the scope of the submission to
arbitration, provided that, if the decisions on matters submitted
to arbitration can be separated from those not so submitted,
only that part of the award which contains decisions on matters
not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral proce-
dure was not in accordance with the agreement of the parties,
unless such agreement was in conflict with a provision of this
Law from which the parties cannot derogate, or, failing such
agreement, was not in accordance with this Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of settlement
by arbitration under the law of this State; or
(ii) the award is in conflict with the public policy of this State.
(3) An application for setting aside may not be made after three months
have elapsed from the date on which the party making that application had
received the award or, if a request had been made under article 33, from
the date on which that request had been disposed of by the arbitral
tribunal.
(4) The court, when asked to set aside an award, may, where appropriate
and so requested by a party, suspend the setting aside proceedings for a
period of time determined by it in order to give the arbitral tribunal an
opportunity to resume the arbitral proceedings or to take such other action
as in the arbitral tribunal’s opinion will eliminate the grounds for setting
aside.
CHAPTER VIII. RECOGNITION AND ENFORCEMENT OF AWARDS
Article 35. Recognition and enforcement
(1) An arbitral award, irrespective of the country in which it was made,

shall be recognized as binding and, upon application in writing to the
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competent court, shall be enforced subject to the provisions of this article

and of article 36.
(2) The party relying on an award or applying for its enforcement shall
supply the original award or a copy thereof. If the award is not made in an
official language of this State, the court may request the party to supply a
translation thereof into such language.4
(Article 35(2) has been amended by the Commission at its thirty-ninth session, in 2006)
Article 36. Grounds for refusing recognition or enforcement
(1) Recognition or enforcement of an arbitral award, irrespective of the

country in which it was made, may be refused only:
(a) at the request of the party against whom it is invoked, if that party
furnishes to the competent court where recognition or enforcement is sought
proof that:
(i) a party to the arbitration agreement referred to in article 7
was under some incapacity; or the said agreement is not
valid under the law to which the parties have subjected
it or, failing any indication thereon, under the law of the
country where the award was made; or
(ii) the party against whom the award is invoked was not given
proper notice of the appointment of an arbitrator or of the
arbitral proceedings or was otherwise unable to present his
case; or
(iii) the award deals with a dispute not contemplated by or not
falling within the terms of the submission to arbitration, or
it contains decisions on matters beyond the scope of the
submission to arbitration, provided that, if the decisions on
matters submitted to arbitration can be separated from those
not so submitted, that part of the award which contains deci-
sions on matters submitted to arbitration may be recognized
and enforced; or
(iv) the composition of the arbitral tribunal or the arbitral proce-
dure was not in accordance with the agreement of the parties
or, failing such agreement, was not in accordance with the
law of the country where the arbitration took place; or
4
The conditions set forth in this paragraph are intended to set maximum standards. It would, thus,
not be contrary to the harmonization to be achieved by the model law if a State retained even less
onerous conditions.
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(v) the award has not yet become binding on the parties or has
been set aside or suspended by a court of the country in
which, or under the law of which, that award was made; or
(b) if the court finds that:
(i) the subject-matter of the dispute is not capable of settlement
by arbitration under the law of this State; or
(ii) the recognition or enforcement of the award would be
contrary to the public policy of this State.
(2) If an application for setting aside or suspension of an award has been

made to a court referred to in paragraph (1)(a)(v) of this article, the court
where recognition or enforcement is sought may, if it considers it proper,
adjourn its decision and may also, on the application of the party claiming
recognition or enforcement of the award, order the other party to provide
appropriate security.
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Part Two
Explanatory Note by the UNCITRAL secretariat

on the 1985 Model Law on International Commercial
Arbitration as amended in 20061
1. The UNCITRAL Model Law on International Commercial Arbitration (“the
Model Law”) was adopted by the United Nations Commission on International
Trade Law (UNCITRAL) on 21 June 1985, at the end of the eighteenth session of
the Commission. The General Assembly, in its resolution 40/72 of 11 December
1985, recommended “that all States give due consideration to the Model Law on
International Commercial Arbitration, in view of the desirability of uniformity of
the law of arbitral procedures and the specific needs of international commercial
arbitration practice”. The Model Law was amended by UNCITRAL on 7 July 2006,
at the thirty-ninth session of the Commission (see below, paragraphs 4, 19, 20, 27,
29 and 53). The General Assembly, in its resolution 61/33 of 4 December 2006,
recommended “that all States give favourable consideration to the enactment of the
revised articles of the UNCITRAL Model Law on International Commercial Arbitra-
tion, or the revised UNCITRAL Model Law on International Commercial Arbitra-
tion, when they enact or revise their laws (…)”.
2. The Model Law constitutes a sound basis for the desired harmonization and
improvement of national laws. It covers all stages of the arbitral process from the
arbitration agreement to the recognition and enforcement of the arbitral award and
reflects a worldwide consensus on the principles and important issues of interna-
tional arbitration practice. It is acceptable to States of all regions and the different
legal or economic systems of the world. Since its adoption by UNCITRAL, the
Model Law has come to represent the accepted international legislative standard for
a modern arbitration law and a significant number of jurisdictions have enacted
arbitration legislation based on the Model Law.
3. The form of a model law was chosen as the vehicle for harmonization and
modernization in view of the flexibility it gives to States in preparing new arbitra-
tion laws. Notwithstanding that flexibility, and in order to increase the likelihood
of achieving a satisfactory degree of harmonization, States are encouraged to make
1
This note was prepared by the secretariat of the United Nations Commission on International
Trade Law (UNCITRAL) for informational purposes only; it is not an official commentary on the Model
Law. A commentary prepared by the Secretariat on an early draft of the Model Law appears in document
A/CN.9/264 (reproduced in UNCITRAL Yearbook, vol. XVI — 1985, United Nations publication, Sales
No. E.87.V.4).
23
435
Annex 15
as few changes as possible when incorporating the Model Law into their legal sys-
tems. Efforts to minimize variation from the text adopted by UNCITRAL are also
expected to increase the visibility of harmonization, thus enhancing the confidence
of foreign parties, as the primary users of international arbitration, in the reliability
of arbitration law in the enacting State.
4. The revision of the Model Law adopted in 2006 includes article 2 A, which is
designed to facilitate interpretation by reference to internationally accepted princi-
ples and is aimed at promoting a uniform understanding of the Model Law. Other
substantive amendments to the Model Law relate to the form of the arbitration
agreement and to interim measures. The original 1985 version of the provision on
the form of the arbitration agreement (article 7) was modelled on the language used
in article II (2) of the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (New York, 1958) (“the New York Convention”). The revision of
article 7 is intended to address evolving practice in international trade and techno-
logical developments. The extensive revision of article 17 on interim measures was
considered necessary in light of the fact that such measures are increasingly relied
upon in the practice of international commercial arbitration. The revision also
includes an enforcement regime for such measures in recognition of the fact that
the effectiveness of arbitration frequently depends upon the possibility of enforcing
interim measures. The new provisions are contained in a new chapter of the Model
Law on interim measures and preliminary orders (chapter IV A).
A. Background to the Model Law
5. The Model Law was developed to address considerable disparities in national

laws on arbitration. The need for improvement and harmonization was based on
findings that national laws were often particularly inappropriate for international
cases.
1. Inadequacy of domestic laws
6. Recurrent inadequacies to be found in outdated national laws include provisions

that equate the arbitral process with court litigation and fragmentary provisions that
fail to address all relevant substantive law issues. Even most of those laws that
appear to be up-to-date and comprehensive were drafted with domestic arbitration
primarily, if not exclusively, in mind. While this approach is understandable in view
of the fact that even today the bulk of cases governed by arbitration law would be
of a purely domestic nature, the unfortunate consequence is that traditional local
concepts are imposed on international cases and the needs of modern practice are
often not met.
7. The expectations of the parties as expressed in a chosen set of arbitration rules

or a “one-off” arbitration agreement may be frustrated, especially by mandatory
provisions of applicable law. Unexpected and undesired restrictions found in national
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Part Two. Explanatory Note by the UNCITRAL secretariat 25
laws may prevent the parties, for example, from submitting future disputes to arbi-
tration, from selecting the arbitrator freely, or from having the arbitral proceedings
conducted according to agreed rules of procedure and with no more court involve-
ment than appropriate. Frustration may also ensue from non-mandatory provisions
that may impose undesired requirements on unwary parties who may not think about
the need to provide otherwise when drafting the arbitration agreement. Even the
absence of any legislative provision may cause difficulties simply by leaving un-
answered some of the many procedural issues relevant in arbitration and not always
settled in the arbitration agreement. The Model Law is intended to reduce the risk
of such possible frustration, difficulties or surprise.
2. Disparity between national laws
8. Problems stemming from inadequate arbitration laws or from the absence of

specific legislation governing arbitration are aggravated by the fact that national
laws differ widely. Such differences are a frequent source of concern in international
arbitration, where at least one of the parties is, and often both parties are, confronted
with foreign and unfamiliar provisions and procedures. Obtaining a full and precise
account of the law applicable to the arbitration is, in such circumstances often
expensive, impractical or impossible.
9. Uncertainty about the local law with the inherent risk of frustration may
adversely affect the functioning of the arbitral process and also impact on the selec-
tion of the place of arbitration. Due to such uncertainty, a party may hesitate or
refuse to agree to a place, which for practical reasons would otherwise be appropri-
ate. The range of places of arbitration acceptable to parties is thus widened and the
smooth functioning of the arbitral proceedings is enhanced where States adopt the
Model Law, which is easily recognizable, meets the specific needs of international
commercial arbitration and provides an international standard based on solutions
acceptable to parties from different legal systems.
B. Salient features of the Model Law
1. Special procedural regime for international commercial arbitration
10. The principles and solutions adopted in the Model Law aim at reducing or
eliminating the above-mentioned concerns and difficulties. As a response to the
inadequacies and disparities of national laws, the Model Law presents a special legal
regime tailored to international commercial arbitration, without affecting any rele-
vant treaty in force in the State adopting the Model Law. While the Model Law
was designed with international commercial arbitration in mind, it offers a set of
basic rules that are not, in and of themselves, unsuitable to any other type of arbi-
tration. States may thus consider extending their enactment of the Model Law to
cover also domestic disputes, as a number of enacting States already have.
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(a) Substantive and territorial scope of application
11. Article 1 defines the scope of application of the Model Law by reference to
the notion of “international commercial arbitration”. The Model Law defines an
arbitration as international if “the parties to an arbitration agreement have, at the
time of the conclusion of that agreement, their places of business in different States”
(article 1 (3)). The vast majority of situations commonly regarded as international
will meet this criterion. In addition, article 1 (3) broadens the notion of internation-
ality so that the Model Law also covers cases where the place of arbitration, the
place of contract performance, or the place of the subject-matter of the dispute is
situated outside the State where the parties have their place of business, or cases
where the parties have expressly agreed that the subject-matter of the arbitration
agreement relates to more than one country. Article 1 thus recognizes extensively
the freedom of the parties to submit a dispute to the legal regime established pursuant
to the Model Law.
12. In respect of the term “commercial”, the Model Law provides no strict defini-
tion. The footnote to article 1 (1) calls for “a wide interpretation” and offers an
illustrative and open-ended list of relationships that might be described as com-
mercial in nature, “whether contractual or not”. The purpose of the footnote is to
circumvent any technical difficulty that may arise, for example, in determining which
transactions should be governed by a specific body of “commercial law” that may
exist in some legal systems.
13. Another aspect of applicability is the territorial scope of application. The prin-
ciple embodied in article 1 (2) is that the Model Law as enacted in a given State
applies only if the place of arbitration is in the territory of that State. However,
article 1 (2) also contains important exceptions to that principle, to the effect that
certain articles apply, irrespective of whether the place of arbitration is in the enact-
ing State or elsewhere (or, as the case may be, even before the place of arbitration
is determined). These articles are the following: articles 8 (1) and 9, which deal
with the recognition of arbitration agreements, including their compatibility with
interim measures ordered by a court, article 17 J on court-ordered interim measures,
articles 17 H and 17 I on the recognition and enforcement of interim measures
ordered by an arbitral tribunal, and articles 35 and 36 on the recognition and
enforcement of arbitral awards.
14. The territorial criterion governing most of the provisions of the Model Law
was adopted for the sake of certainty and in view of the following facts. In most
legal systems, the place of arbitration is the exclusive criterion for determining the
applicability of national law and, where the national law allows parties to choose
the procedural law of a State other than that where the arbitration takes place,
experience shows that parties rarely make use of that possibility. Incidentally, enact-
ment of the Model Law reduces any need for the parties to choose a “foreign” law,
since the Model Law grants the parties wide freedom in shaping the rules of the
arbitral proceedings. In addition to designating the law governing the arbitral
procedure, the territorial criterion is of considerable practical importance in respect
of articles 11, 13, 14, 16, 27 and 34, which entrust State courts at the place of
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arbitration with functions of supervision and assistance to arbitration. It should be

noted that the territorial criterion legally triggered by the parties’ choice regarding
the place of arbitration does not limit the arbitral tribunal’s ability to meet at any
place it considers appropriate for the conduct of the proceedings, as provided by
article 20 (2).
(b) Delimitation of court assistance and supervision
15. Recent amendments to arbitration laws reveal a trend in favour of limiting and
clearly defining court involvement in international commercial arbitration. This is
justified in view of the fact that the parties to an arbitration agreement make a
conscious decision to exclude court jurisdiction and prefer the finality and expedi-
ency of the arbitral process.
16. In this spirit, the Model Law envisages court involvement in the following
instances. A first group comprises issues of appointment, challenge and termination
of the mandate of an arbitrator (articles 11, 13 and 14), jurisdiction of the arbitral
tribunal (article 16) and setting aside of the arbitral award (article 34). These
instances are listed in article 6 as functions that should be entrusted, for the sake
of centralization, specialization and efficiency, to a specially designated court or,
with respect to articles 11, 13 and 14, possibly to another authority (for example,
an arbitral institution or a chamber of commerce). A second group comprises issues
of court assistance in taking evidence (article 27), recognition of the arbitration
agreement, including its compatibility with court-ordered interim measures (arti-
cles 8 and 9), court-ordered interim measures (article 17 J), and recognition and
enforcement of interim measures (articles 17 H and 17 I) and of arbitral awards
(articles 35 and 36).
17. Beyond the instances in these two groups, “no court shall intervene, in matters
governed by this Law”. Article 5 thus guarantees that all instances of possible court
intervention are found in the piece of legislation enacting the Model Law, except
for matters not regulated by it (for example, consolidation of arbitral proceedings,
contractual relationship between arbitrators and parties or arbitral institutions, or
fixing of costs and fees, including deposits). Protecting the arbitral process from
unpredictable or disruptive court interference is essential to parties who choose
arbitration (in particular foreign parties).
2. Arbitration agreement
18. Chapter II of the Model Law deals with the arbitration agreement, including
its recognition by courts.
(a) Definition and form of arbitration agreement
19. The original 1985 version of the provision on the definition and form of
arbitration agreement (article 7) closely followed article II (2) of the New York
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Convention, which requires that an arbitration agreement be in writing. If the parties

have agreed to arbitrate, but they entered into the arbitration agreement in a manner
that does not meet the form requirement, any party may have grounds to object to
the jurisdiction of the arbitral tribunal. It was pointed out by practitioners that, in
a number of situations, the drafting of a written document was impossible or
impractical. In such cases, where the willingness of the parties to arbitrate was not
in question, the validity of the arbitration agreement should be recognized. For that
reason, article 7 was amended in 2006 to better conform to international contract
practices. In amending article 7, the Commission adopted two options, which reflect
two different approaches on the question of definition and form of arbitration agree-
ment. The first approach follows the detailed structure of the original 1985 text. It
confirms the validity and effect of a commitment by the parties to submit to arbitra-
tion an existing dispute (“compromis”) or a future dispute (“clause compromis-
soire”). It follows the New York Convention in requiring the written form of the
arbitration agreement but recognizes a record of the “contents” of the agreement
“in any form” as equivalent to traditional “writing”. The agreement to arbitrate may
be entered into in any form (e.g. including orally) as long as the content of the
agreement is recorded. This new rule is significant in that it no longer requires
signatures of the parties or an exchange of messages between the parties. It mod-
ernizes the language referring to the use of electronic commerce by adopting word-
ing inspired from the 1996 UNCITRAL Model Law on Electronic Commerce and
the 2005 United Nations Convention on the Use of Electronic Communications in
International Contracts. It covers the situation of “an exchange of statements of
claim and defence in which the existence of an agreement is alleged by one party
and not denied by another”. It also states that “the reference in a contract to any
document” (for example, general conditions) “containing an arbitration clause con-
stitutes an arbitration agreement in writing provided that the reference is such as
to make that clause part of the contract”. It thus clarifies that applicable contract
law remains available to determine the level of consent necessary for a party to
become bound by an arbitration agreement allegedly made “by reference”. The
second approach defines the arbitration agreement in a manner that omits any form
requirement. No preference was expressed by the Commission in favour of either
option I or II, both of which are offered for enacting States to consider, depending
on their particular needs, and by reference to the legal context in which the Model
Law is enacted, including the general contract law of the enacting State. Both op-
tions are intended to preserve the enforceability of arbitration agreements under the
New York Convention.
20. In that respect, the Commission also adopted, at its thirty-ninth session in
2006, a “Recommendation regarding the interpretation of article II, paragraph 2,
and article VII, paragraph 1, of the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, done in New York, 10 June 1958” (A/61/17, Annex 2).2
The General Assembly, in its resolution 61/33 of 4 December 2006 noted that “in
connection with the modernization of articles of the Model Law, the promotion of
a uniform interpretation and application of the Convention on the Recognition and
2
Reproduced in Part Three hereafter.
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Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, is par-
ticularly timely”. The Recommendation was drafted in recognition of the widening
use of electronic commerce and enactments of domestic legislation as well as case
law, which are more favourable than the New York Convention in respect of the
form requirement governing arbitration agreements, arbitration proceedings, and the
enforcement of arbitral awards. The Recommendation encourages States to apply
article II (2) of the New York Convention “recognizing that the circumstances
described therein are not exhaustive”. In addition, the Recommendation encourages
States to adopt the revised article 7 of the Model Law. Both options of the revised
article 7 establish a more favourable regime for the recognition and enforcement of
arbitral awards than that provided under the New York Convention. By virtue of
the “more favourable law provision” contained in article VII (1) of the New York
Convention, the Recommendation clarifies that “any interested party” should be
allowed “to avail itself of rights it may have, under the law or treaties of the country
where an arbitration agreement is sought to be relied upon, to seek recognition of
the validity of such an arbitration agreement”.
(b) Arbitration agreement and the courts
21. Articles 8 and 9 deal with two important aspects of the complex relationship
between the arbitration agreement and the resort to courts. Modelled on article II (3)
of the New York Convention, article 8 (1) of the Model Law places any court under
an obligation to refer the parties to arbitration if the court is seized with a claim
on the same subject-matter unless it finds that the arbitration agreement is null and
void, inoperative or incapable of being performed. The referral is dependent on a
request, which a party may make not later than when submitting its first statement
on the substance of the dispute. This provision, where adopted by a State enacting
the Model Law, is by its nature binding only on the courts of that State. However,
since article 8 is not limited in scope to agreements providing for arbitration to take
place in the enacting State, it promotes the universal recognition and effect of
international commercial arbitration agreements.
22. Article 9 expresses the principle that any interim measures of protection that
may be obtained from courts under their procedural law (for example, pre-award
attachments) are compatible with an arbitration agreement. That provision is ulti-
mately addressed to the courts of any State, insofar as it establishes the compatibility
between interim measures possibly issued by any court and an arbitration agreement,
irrespective of the place of arbitration. Wherever a request for interim measures
may be made to a court, it may not be relied upon, under the Model Law, as a
waiver or an objection against the existence or effect of the arbitration agreement.
3. Composition of arbitral tribunal
23. Chapter III contains a number of detailed provisions on appointment, challenge,

termination of mandate and replacement of an arbitrator. The chapter illustrates the
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general approach taken by the Model Law in eliminating difficulties that arise from
inappropriate or fragmentary laws or rules. First, the approach recognizes the free-
dom of the parties to determine, by reference to an existing set of arbitration rules
or by an ad hoc agreement, the procedure to be followed, subject to the fundamental
requirements of fairness and justice. Secondly, where the parties have not exercised
their freedom to lay down the rules of procedure or they have failed to cover a par-
ticular issue, the Model Law ensures, by providing a set of suppletive rules, that the
arbitration may commence and proceed effectively until the dispute is resolved.
24. Where under any procedure, agreed upon by the parties or based upon the
suppletive rules of the Model Law, difficulties arise in the process of appointment,
challenge or termination of the mandate of an arbitrator, articles 11, 13 and 14
provide for assistance by courts or other competent authorities designated by the
enacting State. In view of the urgency of matters relating to the composition of the
arbitral tribunal or its ability to function, and in order to reduce the risk and effect
of any dilatory tactics, short time-periods are set and decisions rendered by courts
or other authorities on such matters are not appealable.
4. Jurisdiction of arbitral tribunal
(a) Competence to rule on own jurisdiction
25. Article 16 (1) adopts the two important (not yet generally recognized) prin-
ciples of “Kompetenz-Kompetenz” and of separability or autonomy of the arbitration
clause. “Kompetenz-Kompetenz” means that the arbitral tribunal may independently
rule on the question of whether it has jurisdiction, including any objections with
respect to the existence or validity of the arbitration agreement, without having to
resort to a court. Separability means that an arbitration clause shall be treated as
an agreement independent of the other terms of the contract. As a consequence, a
decision by the arbitral tribunal that the contract is null and void shall not entail
ipso jure the invalidity of the arbitration clause. Detailed provisions in paragraph (2)
require that any objections relating to the arbitrators’ jurisdiction be made at the
earliest possible time.
26. The competence of the arbitral tribunal to rule on its own jurisdiction (i.e. on
the foundation, content and extent of its mandate and power) is, of course, subject
to court control. Where the arbitral tribunal rules as a preliminary question that it
has jurisdiction, article 16 (3) allows for immediate court control in order to avoid
waste of time and money. However, three procedural safeguards are added to reduce
the risk and effect of dilatory tactics: short time-period for resort to court (30 days),
court decision not appealable, and discretion of the arbitral tribunal to continue the
proceedings and make an award while the matter is pending before the court. In
those cases where the arbitral tribunal decides to combine its decision on jurisdic-
tion with an award on the merits, judicial review on the question of jurisdiction is
available in setting aside proceedings under article 34 or in enforcement proceedings
under article 36.
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(b) Power to order interim measures and preliminary orders
27. Chapter IV A on interim measures and preliminary orders was adopted by the
Commission in 2006. It replaces article 17 of the original 1985 version of the Model
Law. Section 1 provides a generic definition of interim measures and sets out the
conditions for granting such measures. An important innovation of the revision lies
in the establishment (in section 4) of a regime for the recognition and enforcement
of interim measures, which was modelled, as appropriate, on the regime for the
recognition and enforcement of arbitral awards under articles 35 and 36 of the
Model Law.
28. Section 2 of chapter IV A deals with the application for, and conditions for
the granting of, preliminary orders. Preliminary orders provide a means for preserv-
ing the status quo until the arbitral tribunal issues an interim measure adopting or
modifying the preliminary order. Article 17 B (1) provides that “a party may, without
notice to any other party, make a request for an interim measure together with an
application for a preliminary order directing a party not to frustrate the purpose of
the interim measure requested”. Article 17 B (2) permits an arbitral tribunal to grant
a preliminary order if “it considers that prior disclosure of the request for the interim
measure to the party against whom it is directed risks frustrating the purpose of the
measure”. Article 17 C contains carefully drafted safeguards for the party against
whom the preliminary order is directed, such as prompt notification of the applica-
tion for the preliminary order and of the preliminary order itself (if any), and an
opportunity for that party to present its case “at the earliest practicable time”. In
any event, a preliminary order has a maximum duration of twenty days and, while
binding on the parties, is not subject to court enforcement and does not constitute
an award. The term “preliminary order” is used to emphasize its limited nature.
29. Section 3 sets out rules applicable to both preliminary orders and interim
measures.
30. Section 5 includes article 17 J on interim measures ordered by courts in

support of arbitration, and provides that “a court shall have the same power of
issuing an interim measure in relation to arbitration proceedings irrespective of
whether their place is in the territory of the enacting State, as it has in relation to
proceedings in courts”. That article has been added in 2006 to put it beyond any doubt
that the existence of an arbitration agreement does not infringe on the powers of the
competent court to issue interim measures and that the party to such an arbitration
agreement is free to approach the court with a request to order interim measures.
5. Conduct of arbitral proceedings
31. Chapter V provides the legal framework for a fair and effective conduct of the
arbitral proceedings. Article 18, which sets out fundamental requirements of proce-
dural justice, and article 19 on the rights and powers to determine the rules of
procedure, express principles that are central to the Model Law.
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(a) Fundamental procedural rights of a party
32. Article 18 embodies the principles that the parties shall be treated with equality
and given a full opportunity of presenting their case. A number of provisions illus-
trate those principles. For example, article 24 (1) provides that, unless the parties
have agreed that no oral hearings be held for the presentation of evidence or for
oral argument, the arbitral tribunal shall hold such hearings at an appropriate stage
of the proceedings, if so requested by a party. It should be noted that article 24 (1)
deals only with the general entitlement of a party to oral hearings (as an alternative
to proceedings conducted on the basis of documents and other materials) and not
with the procedural aspects, such as the length, number or timing of hearings.
33. Another illustration of those principles relates to evidence by an expert

appointed by the arbitral tribunal. Article 26 (2) requires the expert, after delivering
his or her written or oral report, to participate in a hearing where the parties may
put questions to the expert and present expert witnesses to testify on the points at
issue, if such a hearing is requested by a party or deemed necessary by the arbitral
tribunal. As another provision aimed at ensuring fairness, objectivity and impartial-
ity, article 24 (3) provides that all statements, documents and other information
supplied to the arbitral tribunal by one party shall be communicated to the other
party, and that any expert report or evidentiary document on which the arbitral tri-
bunal may rely in making its decision shall be communicated to the parties. In order
to enable the parties to be present at any hearing and at any meeting of the arbitral
tribunal for inspection purposes, they shall be given sufficient notice in advance
(article 24 (2)).
(b) Determination of rules of procedure
34. Article 19 guarantees the parties’ freedom to agree on the procedure to be

followed by the arbitral tribunal in conducting the proceedings, subject to a few
mandatory provisions on procedure, and empowers the arbitral tribunal, failing
agreement by the parties, to conduct the arbitration in such a manner as it considers
appropriate. The power conferred upon the arbitral tribunal includes the power to
determine the admissibility, relevance, materiality and weight of any evidence.
35. Autonomy of the parties in determining the rules of procedure is of special

importance in international cases since it allows the parties to select or tailor the
rules according to their specific wishes and needs, unimpeded by traditional and
possibly conflicting domestic concepts, thus obviating the earlier mentioned risk of
frustration or surprise (see above, paras. 7 and 9). The supplementary discretion of
the arbitral tribunal is equally important in that it allows the tribunal to tailor the
conduct of the proceedings to the specific features of the case without being hindered
by any restraint that may stem from traditional local law, including any domestic
rule on evidence. Moreover, it provides grounds for displaying initiative in solving
any procedural question not regulated in the arbitration agreement or the Model
Law.
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36. In addition to the general provisions of article 19, other provisions in the
Model Law recognize party autonomy and, failing agreement, empower the arbitral
tribunal to decide on certain matters. Examples of particular practical importance
in international cases are article 20 on the place of arbitration and article 22 on the
language to be used in the proceedings.
(c) Default of a party
37. The arbitral proceedings may be continued in the absence of a party, provided
that due notice has been given. This applies, in particular, to the failure of the
respondent to communicate its statement of defence (article 25 (b)). The arbitral
tribunal may also continue the proceedings where a party fails to appear at a hear-
ing or to produce documentary evidence without showing sufficient cause for the
failure (article 25 (c)). However, if the claimant fails to submit its statement of
claim, the arbitral tribunal is obliged to terminate the proceedings (article 25 (a)).
38. Provisions that empower the arbitral tribunal to carry out its task even if one
of the parties does not participate are of considerable practical importance. As
experience shows, it is not uncommon for one of the parties to have little interest
in cooperating or expediting matters. Such provisions therefore provide international
commercial arbitration its necessary effectiveness, within the limits of fundamental
requirements of procedural justice.
6. Making of award and termination of proceedings
(a) Rules applicable to substance of dispute
39. Article 28 deals with the determination of the rules of law governing the
substance of the dispute. Under paragraph (1), the arbitral tribunal decides the dis-
pute in accordance with the rules of law chosen by the parties. This provision is
significant in two respects. It grants the parties the freedom to choose the applicable
substantive law, which is important where the national law does not clearly or fully
recognize that right. In addition, by referring to the choice of “rules of law” instead
of “law”, the Model Law broadens the range of options available to the parties as
regards the designation of the law applicable to the substance of the dispute. For
example, parties may agree on rules of law that have been elaborated by an inter-
national forum but have not yet been incorporated into any national legal system.
Parties could also choose directly an instrument such as the United Nations Conven-
tion on Contracts for the International Sale of Goods as the body of substantive
law governing the arbitration, without having to refer to the national law of any
State party to that Convention. The power of the arbitral tribunal, on the other hand,
follows more traditional lines. When the parties have not chosen the applicable law,
the arbitral tribunal shall apply the law (i.e., the national law) determined by the
conflict-of-laws rules that it considers applicable.
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40. Article 28 (3) recognizes that the parties may authorize the arbitral tribunal to
decide the dispute ex aequo et bono or as amiables compositeur. This type of arbi-
tration (where the arbitral tribunal may decide the dispute on the basis of principles
it believes to be just, without having to refer to any particular body of law) is cur-
rently not known or used in all legal systems. The Model Law does not intend to
regulate this area. It simply calls the attention of the parties on the need to provide
clarification in the arbitration agreement and specifically to empower the arbitral
tribunal. However, paragraph (4) makes it clear that in all cases where the dispute
relates to a contract (including arbitration ex aequo et bono) the arbitral tribunal
must decide in accordance with the terms of the contract and shall take into account
the usages of the trade applicable to the transaction.
(b) Making of award and other decisions
41. In its rules on the making of the award (articles 29-31), the Model Law focuses
on the situation where the arbitral tribunal consists of more than one arbitrator. In
such a situation, any award and other decision shall be made by a majority of the
arbitrators, except on questions of procedure, which may be left to a presiding
arbitrator. The majority principle applies also to the signing of the award, provided
that the reason for any omitted signature is stated.
42. Article 31 (3) provides that the award shall state the place of arbitration and
shall be deemed to have been made at that place. The effect of the deeming provi-
sion is to emphasize that the final making of the award constitutes a legal act, which
in practice does not necessarily coincide with one factual event. For the same reason
that the arbitral proceedings need not be carried out at the place designated as the
legal “place of arbitration”, the making of the award may be completed through
deliberations held at various places, by telephone or correspondence. In addition,
the award does not have to be signed by the arbitrators physically gathering at the
same place.
43. The arbitral award must be in writing and state its date. It must also state the
reasons on which it is based, unless the parties have agreed otherwise or the award
is “on agreed terms” (i.e., an award that records the terms of an amicable settlement
by the parties). It may be added that the Model Law neither requires nor prohibits
“dissenting opinions”.
7. Recourse against award
44. The disparity found in national laws as regards the types of recourse against
an arbitral award available to the parties presents a major difficulty in harmonizing
international arbitration legislation. Some outdated laws on arbitration, by establish-
ing parallel regimes for recourse against arbitral awards or against court decisions,
provide various types of recourse, various (and often long) time periods for exercis-
ing the recourse, and extensive lists of grounds on which recourse may be based.
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That situation (of considerable concern to those involved in international commercial

arbitration) is greatly improved by the Model Law, which provides uniform grounds
upon which (and clear time periods within which) recourse against an arbitral award
may be made.
(a) Application for setting aside as exclusive recourse
45. The first measure of improvement is to allow only one type of recourse, to
the exclusion of any other recourse regulated in any procedural law of the State in
question. Article 34 (1) provides that the sole recourse against an arbitral award is
by application for setting aside, which must be made within three months of receipt
of the award (article 34 (3)). In regulating “recourse” (i.e., the means through which
a party may actively “attack” the award), article 34 does not preclude a party from
seeking court control by way of defence in enforcement proceedings (articles 35
and 36). Article 34 is limited to action before a court (i.e., an organ of the judicial
system of a State). However, a party is not precluded from appealing to an arbitral
tribunal of second instance if the parties have agreed on such a possibility (as is
common in certain commodity trades).
(b) Grounds for setting aside
46. As a further measure of improvement, the Model Law lists exhaustively the
grounds on which an award may be set aside. This list essentially mirrors that
contained in article 36 (1), which is taken from article V of the New York Conven-
tion. The grounds provided in article 34 (2) are set out in two categories. Grounds
which are to be proven by one party are as follows: lack of capacity of the parties
to conclude an arbitration agreement; lack of a valid arbitration agreement; lack of
notice of appointment of an arbitrator or of the arbitral proceedings or inability of
a party to present its case; the award deals with matters not covered by the submis-
sion to arbitration; the composition of the arbitral tribunal or the conduct of arbitral
proceedings are contrary to the effective agreement of the parties or, failing such
agreement, to the Model Law. Grounds that a court may consider of its own initia-
tive are as follows: non-arbitrability of the subject-matter of the dispute or violation
of public policy (which is to be understood as serious departures from fundamental
notions of procedural justice).
47. The approach under which the grounds for setting aside an award under the
Model Law parallel the grounds for refusing recognition and enforcement of the
award under article V of the New York Convention is reminiscent of the approach
taken in the European Convention on International Commercial Arbitration (Geneva,
1961). Under article IX of the latter Convention, the decision of a foreign court to
set aside an award for a reason other than the ones listed in article V of the New
York Convention does not constitute a ground for refusing enforcement. The Model
Law takes this philosophy one step further by directly limiting the reasons for
setting aside.
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48. Although the grounds for setting aside as set out in article 34 (2) are almost
identical to those for refusing recognition or enforcement as set out in article 36 (1),
a practical difference should be noted. An application for setting aside under arti-
cle 34 (2) may only be made to a court in the State where the award was rendered
whereas an application for enforcement might be made in a court in any State. For
that reason, the grounds relating to public policy and non-arbitrability may vary in
substance with the law applied by the court (in the State of setting aside or in the
State of enforcement).
8. Recognition and enforcement of awards
49. The eighth and last chapter of the Model Law deals with the recognition and
enforcement of awards. Its provisions reflect the significant policy decision that the
same rules should apply to arbitral awards whether made in the country of enforce-
ment or abroad, and that those rules should follow closely the New York
Convention.
(a) Towards uniform treatment of all awards irrespective of country of origin
50. By treating awards rendered in international commercial arbitration in a uni-

form manner irrespective of where they were made, the Model Law distinguishes
between “international” and “non-international” awards instead of relying on the
traditional distinction between “foreign” and “domestic” awards. This new line is
based on substantive grounds rather than territorial borders, which are inappropriate
in view of the limited importance of the place of arbitration in international cases.
The place of arbitration is often chosen for reasons of convenience of the parties
and the dispute may have little or no connection with the State where the arbitration
legally takes place. Consequently, the recognition and enforcement of “international”
awards, whether “foreign” or “domestic”, should be governed by the same
provisions.
51. By modelling the recognition and enforcement rules on the relevant provisions
of the New York Convention, the Model Law supplements, without conflicting with,
the regime of recognition and enforcement created by that successful Convention.
(b) Procedural conditions of recognition and enforcement
52. Under article 35 (1) any arbitral award, irrespective of the country in which
it was made, shall be recognized as binding and enforceable, subject to the provi-
sions of article 35 (2) and of article 36 (the latter of which sets forth the grounds
on which recognition or enforcement may be refused). Based on the above consid-
eration of the limited importance of the place of arbitration in international cases
and the desire of overcoming territorial restrictions, reciprocity is not included as
a condition for recognition and enforcement.
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53. The Model Law does not lay down procedural details of recognition and
enforcement, which are left to national procedural laws and practices. The Model
Law merely sets certain conditions for obtaining enforcement under article 35 (2).
It was amended in 2006 to liberalize formal requirements and reflect the amendment
made to article 7 on the form of the arbitration agreement. Presentation of a copy
of the arbitration agreement is no longer required under article 35 (2).
(c) Grounds for refusing recognition or enforcement
54. Although the grounds on which recognition or enforcement may be refused

under the Model Law are identical to those listed in article V of the New York
Convention, the grounds listed in the Model Law are relevant not only to foreign
awards but to all awards rendered in the sphere of application of the piece of leg-
islation enacting the Model Law. Generally, it was deemed desirable to adopt, for
the sake of harmony, the same approach and wording as this important Convention.
However, the first ground on the list as contained in the New York Convention
(which provides that recognition and enforcement may be refused if “the parties to
the arbitration agreement were, under the law applicable to them, under some
incapacity”) was modified since it was viewed as containing an incomplete and
potentially misleading conflict-of-laws rule.
Further information on the Model Law may be obtained from:
UNCITRAL secretariat
Vienna International Centre
P.O. Box 500
1400 Vienna
Austria
Telephone: (+43-1) 26060-4060

Telefax: (+43-1) 26060-5813
Internet: www.uncitral.org
E-mail: uncitral@uncitral.org
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Part Three
Recommendation regarding the interpretation of article II,
paragraph 2, and article VII, paragraph 1, of the
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, done in New York, 10 June 1958, adopted
by the United Nations Commission on International Trade
Law on 7 July 2006 at its thirty-ninth session
The United Nations Commission on International Trade Law,
Recalling General Assembly resolution 2205 (XXI) of 17 December 1966,

which established the United Nations Commission on International Trade Law with
the object of promoting the progressive harmonization and unification of the law
of international trade by, inter alia, promoting ways and means of ensuring a uniform
interpretation and application of international conventions and uniform laws in the
field of the law of international trade,
Conscious of the fact that the different legal, social and economic systems of
the world, together with different levels of development, are represented in the
Commission,
Recalling successive resolutions of the General Assembly reaffirming the man-

date of the Commission as the core legal body within the United Nations system
in the field of international trade law to coordinate legal activities in this field,
Convinced that the wide adoption of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, done in New York on 10 June 1958,1 has
been a significant achievement in the promotion of the rule of law, particularly in
the field of international trade,
Recalling that the Conference of Plenipotentiaries which prepared and opened

the Convention for signature adopted a resolution, which states, inter alia, that the
Conference “considers that greater uniformity of national laws on arbitration would
further the effectiveness of arbitration in the settlement of private law disputes”,
Bearing in mind differing interpretations of the form requirements under the

Convention that result in part from differences of expression as between the five
equally authentic texts of the Convention,
1
United Nations, Treaty Series, vol. 330, No. 4739.
39
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Taking into account article VII, paragraph 1, of the Convention, a purpose of

which is to enable the enforcement of foreign arbitral awards to the greatest extent,
in particular by recognizing the right of any interested party to avail itself of law
or treaties of the country where the award is sought to be relied upon, including
where such law or treaties offer a regime more favourable than the Convention,
Considering the wide use of electronic commerce,
Taking into account international legal instruments, such as the 1985

UNCITRAL Model Law on International Commercial Arbitration,2 as subsequently
revised, particularly with respect to article 7,3 the UNCITRAL Model Law on
Electronic Commerce,4 the UNCITRAL Model Law on Electronic Signatures5 and
the United Nations Convention on the Use of Electronic Communications in Inter-
national Contracts,6
Taking into account also enactments of domestic legislation, as well as case

law, more favourable than the Convention in respect of form requirement governing
arbitration agreements, arbitration proceedings and the enforcement of arbitral
awards,
Considering that, in interpreting the Convention, regard is to be had to the

need to promote recognition and enforcement of arbitral awards,
1. Recommends that article II, paragraph 2, of the Convention on the

Recognition and Enforcement of Foreign Arbitral Awards, done in New York,
10 June 1958, be applied recognizing that the circumstances described therein are
not exhaustive;
2. Recommends also that article VII, paragraph 1, of the Convention on the

Recognition and Enforcement of Foreign Arbitral Awards, done in New York,
10 June 1958, should be applied to allow any interested party to avail itself of rights
it may have, under the law or treaties of the country where an arbitration agreement
is sought to be relied upon, to seek recognition of the validity of such an arbitration
agreement.
2
Official Records of the General Assembly, Fortieth Session, Supplement No. 17 (A/40/17), annex I,
and United Nations publication, Sales No. E.95.V.18.
3
Ibid., Sixty-first Session, Supplement No. 17 (A/61/17), annex I.
4
Ibid., Fifty-first Session, Supplement No. 17 (A/51/17), annex I, and United Nations publication,
Sales No. E.99.V.4, which contains also an additional article 5 bis, adopted in 1998, and the accompany-
ing Guide to Enactment.
5
Ibid., Fifty-sixth Session, Supplement No. 17 and corrigendum (A/56/17 and Corr.3), annex II,
and United Nations publication, Sales No. E.02.V.8, which contains also the accompanying Guide to
Enactment.
6
General Assembly resolution 60/21, annex.
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Security Agreement Between the States of the Gulf Cooperation

Council, signed at Riyadh on 13 November 2012
Archives of the Kingdom of Bahrain Ministry of Foreign Affairs
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Confidential
Security Agreement Between the States of the

Gulf
Cooperation Council
455
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Security Agreement
Between the States of the Gulf Cooperation Council
The Member States of the Gulf Cooperation Council, hereinafter referred to as the “States
Parties,”
BELIEVING in the principles of Islamic law,
IN THE SPIRIT of the sincere brotherhood and close ties that bind them together, and
recognizing the bonds that unite their people, their territorial unity, their destiny and common
interests,
EMPHASIZING the foundations and principles laid down by the Gulf Cooperation Council,
IN ORDER to achieve the principle asserting that the preservation of the security and
stability of the Gulf Cooperation Council States is a collective responsibility of all members,
OUT OF THE KEENNESS to achieve the greatest possible level of cooperation in order to
contribute effectively to the fight against crime in all its forms and manifestations and to
improve the competencies of security bodies,
IN ORDER TO enhance cooperation between them to serve the common interests,
CONVINCED that coordination, cooperation and integration among them serves their goals,
IN RECOGNITION of the gravity of crime and its negative effects on the economic, social
and political aspects of society,
WITH THE AIM TO reach an optimal and comprehensive level of the existing security
cooperation among the Gulf Cooperation Council States, have agreed as follows:
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CHAPTER I
General Provisions
ARTICLE (1)
The State Parties shall cooperate in the framework of this agreement according to its national
legislation and international commitments.
ARTICLE (2)
State Parties shall cooperate with one another to prosecute and take necessary action
regarding those who are out of law or order or are wanted by States Parties regardless of their
nationality.
ARTICLE (3)
Each State Party shall take legal action in respect of offenses in accordance with its
legislation in force when its nationals or residents interfere in the internal affairs of any other
State Party.
CHAPTER II
Areas of Security Cooperation and Coordination
ARTICLE (4)
Each State Party shall cooperate with the other parties, upon request, regarding personal
information and data of the nationals or residents of the Requesting States within the area of
competence of the Ministries of Interior.
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ARTICLE (5)
A citizen of any State Party who has previously worked in one of his State’s security bodies
may not be employed in a security body of another State Party, except with the consent of his
State’s Ministry of the Interior in accordance with its laws (regulations) and procedures.
ARTICLE (6)
To the extent possible, State Parties shall:
a) Exchange information and expertise that will contribute to the development of ways
to prevent and combat crime in all its forms and manifestations, in particular the
emerging organized transnational crime, and to provide technical support in all
security matters in order to achieve the desired integration.
b) Unify laws (regulations) and procedures, to ensure the fight against crime in all its
forms and manifestations, for the security of State Parties.
c) Exchange of laws (regulations) and rules related to the work of the Ministries of
Interior and other relevant security bodies, as well as research, books, publications
and leaflets issued by ministries and similar bodies, and the visual aids and training
films that they have.
d) Provide the necessary support in the fields of education and training for employees of
the Ministries of Interior and similar bodies in the Party States in their institutes,
colleges and specialized institutions.
e) Establish specialized security training centers in the various branches required by the
security bodies of the State Parties;
f) Provide State Parties with the agenda of conferences, symposia and seminars held in
the field of competence of the Ministries of the Interior and the security bodies.
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g) Support security bodies with the latest technologies and train staff through joint
training courses.
h) Hold periodic meetings and exchange field visits between the staffs of the Ministries
of Interior and bodies services at all levels and in various activities with the purpose
of strengthening relations and reinforcing cooperation as well as reviewing the
applied systems.
ARTICLE (7)
The Ministries of Interior and similar security bodies of the State Parties shall consult in
advance and their representatives shall cooperate to coordinate and consolidate their positions
on the topics on the agendas of regional and international conferences and meetings.
ARTICLE (8)
State Parties shall exchange the names of deportees and ex-convicts, their data and reports on
their movements.
ARTICLE (9)
State Parties shall exchange information on crimes committed or being planned for in the
territory of another State Party relating to criminal gangs, and the measures taken to track and
combat them.
ARTICLE (10)
State Parties shall act collectively or bilaterally to ensure the effective integration and field
cooperation between security bodies, as well as to provide support - upon request - to any
Party State, in accordance with the circumstances of the requested States or Party States, to
address security disturbance and disasters.
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ARTICLE (11)
State Parties shall, on a case-by-case basis and upon the request of a State Party, permit
specialists from the requesting State Party to be present at the gathering of evidence involving
security crimes or similar offenses committed in their territory or by their nationals or those
who have been granted their citizenship or have partners who reside in them or if the crime
has direct outcomes on their territory.
CHAPTER III
Border Control
ARTICLE (12)
State Parties shall cooperate in preventing the illegal entry or exit of persons, combating
smuggling and infiltration across their borders and taking appropriate legal measures against
those who carry out such activities or found to have a role in doing them.
ARTICLE (13)
The relevant authorities of State Parties shall arrest persons who illegally enter their territory,
take appropriate measures in their regard and repatriate them according to the following:
a) Those who illegally enter the territory of one of the Stats Parties through legally
entering one of them previously shall be returned to a border security center or the
port of the State in which they entered legally, unless they are nationals of the State
which they entered.
b) Unidentified persons and those who do not carry identity documents, as well as illegal
entrants who have entered the territory of one of the State Parties illegally after
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entering another or other State’s territory, shall be returned by the State to the State
from which they came, unless they are nationals of the State which they entered.
ARTICLE (14)
a) State Parties shall work to devise a mechanism for the organization of border
authorities, which shall be bilateral between each two State Parties, to cooperate in the
area of joint borders control, in terms of:
1- Holding periodic meetings
2- Organization and coordination of rendezvous patrols and joint patrols
3- Organization of pursuits by land or sea
4- Providing the necessary assistance and first aid at borders upon request.
5- Organization of joint communications at border posts
6- Coordination on the opening of border crossings between the parties.
b) In case a bilateral agreement did not exist, in accordance with paragraph (a), the pursuit
patrols of any State Party may not cross the land borders of the neighboring State. The
maritime pursuit patrols may cross the border to the rendezvous point at sea which is
agreed upon by the two neighboring States. The patrols of the State in which the
offenders have entered – after being informed – shall continue to pursue, arrest, and
extradite them and their possessions, and transfer them to the nearest center or patrol
affiliated to the State in which the pursuit has started, whenever the laws (regulations)
applicable in that state allowed it.
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CHAPTER IV
Cooperation in the Field of Rescue Operations in Accidents
ARTICLE (15)
a) State Parties shall cooperate to facilitate the landing of air ambulance, or the entry of
land or sea ambulance to their territory, in order to save persons injured in accidents.
b) The injured persons and accompanying ambulance crew shall be transferred without
waiting for official entry or exit procedures of any State Party, taking into account
completing the procedures later.
CHAPTER V
Extradition of Accused and Sentenced Persons
ARTICLE (16)
State Parties shall, in accordance with national legislation and conventions to which the
requested State Party commits to extradition, extradite persons found in their territory who
are accused or sentenced by the relevant authorities of any other State Parties.
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470
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CHAPTER VI
Final Provisions
Article (17)
The State Parties shall hold the necessary meetings and consultations to enhance the
effectiveness and development of cooperation in accordance with this agreement.
Article (18)
State Parties shall take the necessary measures to keep the confidentiality of information,
materials, and documents exchanged between them under this agreement, and not use them
for purposes other than those for which they were requested. The State Parties also shall also
not reveal them to a third party without a written consent of the State Party that provided
them.
Article (19)
The provisions of this agreement are without prejudice to the bilateral agreements to which
certain States Parties are committed. Should the provisions of this agreement conflict with the
provisions of one of bilateral agreements, the two States shall in their mutual relations apply
the provisions most suitable to achieve comprehensive security cooperation.
Article (20)
a) This agreement shall be approved by the Supreme Council and shall be subject to the
ratification procedures of each State Party. It shall enter into force thirty days after the
date of deposit of the instruments and the ratification of two thirds of the signatory
States. This agreement supersedes the Security Agreement between the States of the
Gulf Cooperation Council that was signed on 25 Jumada Al-Thani 1415
corresponding to 28 November 1994.
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b) Each State Party may withdraw from this agreement through submitting a written
notice to the Secretary-General of the Gulf Cooperation Council. The withdrawal
shall not take effect until six months have passed from the date of receipt of the
notice, and it shall be without prejudice to the implementation of requests made prior
to the receipt of the withdrawal notice.
c) This agreement may be amended with the approval of the Supreme Council. The
amendment shall be subject to the procedures provided for in this Article.
Done in Riyadh on 28/12/1433 Hijri corresponding to 13/11/2012 in one copy to be kept in

the General Secretariat of the Gulf Cooperation Council. A copy of this agreement shall be
given to each State of the State Parties in this agreement.
IN WITNESS THEREOF, Their Highnesses and Excellencies the Ministers of Interior of the
Gulf Cooperation Council signed the agreement.
1- The United Arab Emirates
2- The Kingdom of Bahrain
3- The Kingdom of Saudi Arabia
4- The Sultanate of Oman
5- The State of Qatar
6- The State of Kuwait
473
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ICAO, Rules of Procedure for the Council, Ninth Edition 2013

ICAO document 7559/9
475
Annex 17
Doc 7559/9
Rules of Procedure for the Council
Approved by the Council and

published by its decision
Ninth Edition — 2013
International Civil Aviation Organization
476
Annex 17
477
Annex 17
Doc 7559/9
Rules of Procedure for the Council
Approved by the Council and

published by its decision
Ninth Edition — 2013
Note.— Throughout these Rules of Procedure, the use of the

male gender should be understood to include male and female
persons.
International Civil Aviation Organization
478
Annex 17
Published in separate English, Arabic, Chinese, French, Russian

and Spanish editions by the
INTERNATIONAL CIVIL AVIATION ORGANIZATION
999 University Street, Montréal, Quebec, Canada H3C 5H7
For ordering information and for a complete listing of sales agents

and booksellers, please go to the ICAO website at www.icao.int
Eighth Edition, 2007

Ninth Edition, 2013
Doc 7559, Rules of Procedure for the Council

Order Number: 7559
ISBN 978-92-9249-382-0
© ICAO 2013
All rights reserved. No part of this publication may be reproduced, stored in

a retrieval system or transmitted in any form or by any means, without prior
permission in writing from the International Civil Aviation Organization.
479
Annex 17
Table of Contents
Page
PRELIMINARY SECTION
Definitions ....................................................................... 1
SECTION I
Representatives, Alternates and Observers,
and their credentials ......................................................... 3
SECTION II
Officers of the Council and the Secretary General .......... 4
SECTION III
Commissions, Committees and Working Groups
of the Council .................................................................. 6
SECTION IV
Sessions of the Council.................................................... 7
SECTION V
Work Programme and Order of Business ........................ 8
SECTION VI
Conduct of business ......................................................... 12
SECTION VII
Voting .............................................................................. 17
SECTION VIII
Approval of proposals with respect to
administrative matters...................................................... 19
(iii)
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Page
SECTION IX
Languages of the Council ................................................ 20
SECTION X
Records of proceedings ................................................... 21
SECTION XI
Interpretation, revocation, suspension and amendment
of the Rules of Procedure ................................................ 22
APPENDIX A
Rules and Procedures for the election of the
President of the Council .................................................. 24
APPENDIX B
Vice-Presidents of the Council ........................................ 26
APPENDIX C
Rules and Procedures for the appointment of the
Secretary General ............................................................ 27
APPENDIX D
Rules and Procedures governing the appointment
of the Members, Alternates and President of the
Air Navigation Commission ............................................ 29
APPENDIX E
Rules and Procedures governing the appointment of the
Members, Alternates and Chairmen of Commissions
(other than the Air Navigation Commission),
Committees and Working Groups ................................... 31
APPENDIX F
Guidelines on when Council meetings should be
held in closed session (Rule 37) and when Council
documents should be marked “Restricted” ...................... 32
(iv)
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RULES OF PROCEDURE
FOR THE COUNCIL*
PRELIMINARY SECTION
DEFINITIONS
For the purpose of these Rules, the expression:
Alternate — means a person designated and authorized by a Member of

the Council to act on its behalf in the absence** of the
Representative, and holding credentials as evidence thereof.
Convention — means the Convention on International Civil Aviation.
Majority of the Members of the Council — means more than half of the
total membership of the Council.
Meeting — means a single sitting of the Council from the time the
Council comes to order until it adjourns.
Member of the Council — means a Contracting State elected by the

Assembly to form part of the Council in accordance with
Article 50 of the Convention.
Observer — means a person representing a Contracting State not

represented on the Council, a non-Contracting State, an inter-
* Revised on 28 November 1969, entered into force on 27 April 1970; amended by the
Council on 12 May 1971 (Rule 50), 17 March 1976 (Rules 56 and 57), 13 April 1976
(Rule 16 a)), 12 September 1980 (Rule 56), 9 June 1999 (Rule 56), 9 June 2006
(entered into force on 1 August 2006), 16 March 2007 and 20 June 2013 (Rule 12).
** This does not require the Representative to leave the room in the case of a Council
meeting.
482
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national organization or other body, designated and authorized by

his State or organization to participate in one or more of the
meetings of the Council without the right to vote or to move or
second motions or amendments, under such further conditions as
the Council may determine and holding credentials as evidence of
his appointment.
Order of business — means a list of items of business for consideration

at one meeting.
President — means the President of the Council.
Representative — means a person designated and authorized by a

Member of the Council to act on the Council, and holding
credentials as evidence thereof.
Secret Ballot — means a ballot where the marking of the ballot paper
by a Representative takes place in private and cannot be overseen
by any person other than the Representative’s Alternate. All ballot
papers distributed should be exactly alike so that it cannot be
determined how any one Representative voted.
Work Programme — means the list of items to be considered during a

session of the Council.
Working Day — means a weekday on which the Organization conducts

business at Headquarters and does not observe a public holiday.
Working paper — means a paper proposing Action by the Council.
SECTION I
REPRESENTATIVES, ALTERNATES AND OBSERVERS,

AND THEIR CREDENTIALS
Rule 1
Each Member of the Council shall have one Representative, whose

place may be taken by an Alternate. No person may represent more
than one State.
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Rule 2
Credentials of Representatives, of their Alternates and of Observers

shall be signed on behalf of the State, organization or body concerned
and indicate the capacity in which the individual is to serve, and shall
be deposited with the Secretary General.
Rule 3
The credentials shall be examined by the President, one of the Vice-

Presidents and the Secretary General, who shall report to the Council.
Rule 4
Any Representative, Alternate or Observer shall be entitled, pending

the presentation of the report on his credentials and Council action
thereon, to attend meetings and to participate in them subject, however,
to the limits set forth in these Rules. The Council may bar from any
further part in the activities of the Council, Commissions, Committees
and Working Groups any Representative, Alternate or Observer whose
credentials it finds to be insufficient.
SECTION II
OFFICERS OF THE COUNCIL

AND THE SECRETARY GENERAL
Rule 5
The Council shall elect its President for a term of three years, the exact
dates of commencement and termination of which will be determined
by the Council. Candidates shall be nominated by Contracting States.
The rules and procedures governing the election of the President are set
out in Appendix A.
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Rule 6
The President of the Council may be removed from office at any time
by a decision of the Council taken by a majority of its Members,
provided that the motion for that purpose is introduced in writing and is
moved jointly by not less than one third of the Members of the Council.
Upon the introduction of such a motion, the meeting shall be adjourned.
As soon as practicable thereafter, a meeting to consider the motion
shall be called by the Vice-President entitled to act under Rule 10.
Pending the decision of the Council, the President shall refrain from
carrying out the normal functions of the President.
Rule 7
In the event of the President’s death, removal from office, or

resignation, or if the President is otherwise unable to complete his term
of office, a new President shall be elected by the Council as soon as
possible thereafter and the latter shall hold office for the remainder of
the term of his predecessor. If the President gives prior notice of
resignation, the election shall be held on a date to be decided by the
Council, if possible before the resignation takes effect.
Rule 8
The Council shall elect from among Representatives a First, a Second

and a Third Vice-President. Candidates shall be nominated by one or
more Council Members. The rules set out in Appendix B shall govern
the election of each Vice-President.
Rule 9
The term of office of a Vice-President shall extend for one year from
the date of his election, but he may continue to hold office thereafter
until his successor is elected, provided that his term of office shall not
extend beyond the end of the term of the Council unless the State which
he represents continues to be a Member of the Council.
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Rule 10
In the absence of the President, the First Vice-President, the Second

Vice-President or the Third Vice-President in that order shall exercise
the functions vested in the President by these Rules of Procedure.
Rule 11
A Vice-President when acting in the absence of the President shall

retain his right to vote.
Rule 12
The Council shall appoint the Secretary General for a term of three
years. Candidates shall be nominated by Contracting States. A
Secretary General who has served for two terms shall not be appointed
for a third term. The rules and procedures governing the appointment of
the Secretary General are set out in Appendix C.
Rule 13
The Secretary General of the Organization shall be the Secretary of the

Council.
Rule 14
The Secretary General may be removed from office by a decision of the

Council taken by a majority of its Members, provided that the motion
for that purpose is introduced in writing and is moved jointly by not
less than one third of the Members of the Council. As soon as
practicable thereafter, a meeting to consider the motion shall be called
by the President. Pending the decision of the Council, the Secretary
General shall refrain from carrying out the normal functions of the
Secretary General.
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Rule 15
In the event of the Secretary General’s death, removal from office, or

resignation, or if the Secretary General is otherwise unable to complete
his term of office, the Council shall, notwithstanding the procedure in
Appendix C, draw up an appropriate timetable for appointing a
successor. If the Secretary General gives prior notice of resignation, the
appointment shall be held on a date to be decided by the Council, if
possible before the resignation takes effect.
SECTION III
COMMISSIONS, COMMITTEES AND

WORKING GROUPS OF THE COUNCIL
Rule 16
a) The Council shall appoint the Members of the Air Navigation

Commission from candidates nominated by Contracting States.
Such appointment shall be for a term of three years, or for the
remainder of the term of a predecessor.
b) The Council may appoint Alternates to act in the absence of a

member of the Air Navigation Commission.
c) The Council shall appoint the President of the Air Navigation

Commission in accordance with the Guidelines set out in para-
graph 4 of Appendix D.
d) The rules and procedures governing the appointment of the

Members, Alternates and President of the Air Navigation
Commission are set out in Appendix D.
Rule 17
a) In addition to the Air Navigation Commission, the Air Transport

Committee and the Finance Committee, the Council may establish
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other Commissions, Committees or Working Groups, either

Standing or Temporary. The Council shall elect the Members and
Alternates of standing bodies and shall specify at the time of
establishing such bodies whether the body shall also elect its own
Chairman. Standing bodies shall elect their own vice-Chairmen.
b) The Council may elect an Alternate who may act and vote on
behalf of a Member of the Standing Commission, Committee or
Working Group who is absent or who is discharging the functions
of Chairman.
c) The rules and procedures governing the election of the Members,

Alternates and Chairmen of Commissions (other than the Air
Navigation Commission), Committees and Working Groups are set
out in Appendix E.
d) The temporary bodies mentioned in paragraph a) shall elect their

own officers, unless the Council decides otherwise.
e) The method of selection, terms of reference and working methods

of Temporary Commissions, Committees or Working Groups shall
be determined by the Council in each case.
SECTION IV
SESSIONS OF THE COUNCIL
Rule 18
The Council shall meet at such times and for such periods as it deems
necessary for the proper discharge of its responsibilities. The Council
shall determine the dates of the opening and termination of each session.
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Rule 19
a) Between two consecutive sessions of the Council, the President, on

his own initiative or at the request of a Contracting State, after
consulting the Members of the Council and with the approval of
the majority of the Members of the Council, shall call an extra-
ordinary session or change the date which the Council has set for
the opening of the next session. No such action shall result in a
Council Meeting being held on less than seven days’ notice.
b) When the President considers that the urgency of a situation so

warrants, he may, after consultation with the most senior Vice-
President available, convene a special session of the Council
provided that no less than 48 hours’ notice is given.
Rule 20
If a part of a Council session is devoted primarily to Committee

meetings, the President may call such Council meetings as he considers
necessary. No such meetings shall be called on less than 48 hours’
notice without the approval of the majority of the Council.
Rule 21
The Council shall meet at the seat of the Organization unless the
Council decides that a particular session or meeting shall take place
elsewhere.
SECTION V
WORK PROGRAMME AND ORDER OF BUSINESS
Rule 22
A Provisional Work Programme of each session of the Council shall be

prepared by the Secretary General after consultation with the President,
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and presented to the Council for approval. The presentation to the

Council should normally, and wherever practicable, be made during the
preceding session. The Council should indicate the priority which it
attaches to the consideration of the various items in the Provisional
Work Programme.
Rule 23
In preparing the Provisional Work Programme, the Secretary General

shall include therein:
a) subjects which require consideration by the Council by virtue of

provisions of the Convention or other international agreement;
b) subjects to be considered by virtue of decisions of the Assembly or

decisions taken by the Council at a previous session;
c) reports presented or references made to the Council by bodies of

the Organization or other international bodies;
d) any subject proposed by a Member of the Council and transmitted

directly to the President or the Secretary General;
e) any subject referred by a Contracting State for consideration by the

Council;
f) any subject which the President or the Secretary General desires to

bring before the Council;
g) a report on action carried out to implement the decisions of the

Council taken at its previous session;
h) a report on the financial situation of the Organization; and
i) a report on the progress made by the Organization towards its

strategic objectives and the objectives of the Business Plan.
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Rule 24
a) Supplementary items may be placed on the Work Programme

during a session at the request of any Member of the Council, or of
the President or the Secretary General, subject to the approval of
the Council.
b) Any additional subject which fulfils the conditions specified in

Rule 26, paragraph d), shall be deemed to be included in the Work
Programme of the session concerned.
c) Supplements to the Work Programme should be issued by the

Secretary General showing results of the application of paragraphs
a) and b) of this Rule.
Rule 25
The Order of Business for each meeting shall be prepared by the

Secretary General and approved by the President.
Rule 26
a) The Order of Business shall be distributed to all Representatives at

least 24 hours before the meeting of the Council.
b) All documents listed in the Order of Business shall be distributed

to all Representatives in advance of the meeting of the Council to
which the Order of Business relates as follows:
i) for working papers containing proposals for adopting or

amending the Annexes under Article 90 of the Convention —
at least 10 working days before the meeting;
ii) for other working papers — at least 5 working days before the
meeting;
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iii) for reports from Standing Commissions or Committees of

the Council or reports of other bodies established under
Rule 17 — at least 48 hours before the meeting; and
iv) for all other documents — at least 24 hours before the meeting.
c) A revised Order of Business may be distributed less than 24 hours

before the meeting of the Council to include, without substantial
change, items of business included in the Order of Business
already distributed for that meeting or an item carried over from
the immediately preceding meeting provided that the revised Order
of Business shall not list any documents not distributed in
accordance with paragraph b) of this Rule.
d) If the Secretary General, or the President, or a Contracting State

requests that a new subject, whether or not included in the Work
Programme, be considered at a meeting of the Council, such
subject shall be listed in an Addendum to the Order of Business to
be issued by the Secretary General. Any such additional item shall
be considered only if the Council so decides by a majority of its
Members.
e) Notwithstanding paragraphs a) and b), for special sessions of the

Council convened pursuant to Rule 19 b), the Order of Business
and other documents shall be distributed as soon as practicable in
advance of the meeting.
Rule 27
Any subject on the Work Programme of the Council and any document
presented in connection therewith may be referred by the Council to an
appropriate existing Committee, Commission or Working Group for
consideration and report before its consideration by the Council.
Rule 28
Any Member of the Council may have placed on the Order of Business
any item of the Work Programme which it wishes to be considered
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forthwith by the Council. This right is subject to the provisions of the

second sentence of paragraph d) of Rule 26, and subject also to the
proviso contained in clause b) of Rule 30.
Rule 29
a) Any Member of the Council, the President or the Secretary

General may introduce for the consideration of the Council docu-
ments bearing upon any item on the Council Work Programme, or
present any recommendations with respect thereto.
b) The Council shall, as necessary, issue guidelines on the structure

and presentation of working papers and other documents.
Rule 30
The Council may at any time:
a) amend the Work Programme of a session; or
b) decide, by a majority of its Members, to amend the Order of

Business of a meeting, provided that no item or other matter which
was not included in the Order of Business as distributed in
accordance with the provisions of Rule 26, shall be brought to final
action at that meeting except by the unanimous consent of all the
Members of the Council represented at the meeting.
SECTION VI
CONDUCT OF BUSINESS
Rule 31
Any Contracting State may participate, without a vote, in the

consideration by the Council and by its Committees and Commissions
of any question which especially affects its interests (Article 53 of the
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Convention). Subject to the approval of the Council, the President may

invite such participation where he considers that the condition of
special interest is fulfilled. If a Contracting State requests permission to
participate on the grounds of special interest, the President shall refer
the request to the Council for decision.
Rule 32
a) The Council may invite non-Contracting States and international

organizations or other bodies to be represented at any of its
meetings by one or more Observers.
b) The President shall invite the United Nations to be represented by

Observers at meetings of the Council.
c) Subject to the approval of the Council, the President may invite

Specialized Agencies in relationship with the United Nations to be
represented by Observers at meetings of the Council in which
matters of special interest to them are to be discussed.
Rule 33
A majority of the Members of the Council shall constitute a quorum for

the conduct of the business of the Council.
Rule 34
a) The President shall convene meetings of the Council (Article 51 a)

of the Convention); he shall preside at, and declare the opening and
closing of each meeting, direct the discussion in a structured and
focused way, accord the right to speak, put questions and announce
the decisions.
b) He shall ensure the observance of these Rules.
c) During the discussion of any matter, a Representative may raise a

point of order or any other matter related to the interpretation or
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application of these Rules. The point of order or matter related to

the interpretation or application of these Rules shall be decided
immediately by the President, in accordance with these Rules. A
Representative raising a point of order may only speak in relation
to that point of order.
Rule 35
a) The President shall call upon speakers in the order in which, in his
opinion, they have expressed their desire to speak, taking into
account the desirability of maintaining a structured and focused
discussion; he may call a speaker to order if he considers that the
speaker’s observations are not relevant to the subject under
discussion, or for any other appropriate reason.
b) Generally, no speaker shall be called to intervene a second time on

any question, except for clarification, until all others desiring to
intervene have had the opportunity to do so.
c) The President of the Air Navigation Commission and the

Chairman of a Commission, Committee or Working Group may be
accorded precedence for the purpose of explaining the conclusions
arrived at by the body concerned.
Rule 36
Rulings given by the President during a meeting of the Council on the

interpretation or application of these Rules of Procedure may be
appealed by any Member of the Council and the appeal shall be put to
vote immediately. The ruling of the President shall stand unless over-
ruled by a majority of the votes cast.
Rule 37
Meetings of the Council shall be open to the public unless the Council
rules by a majority of votes cast that any particular meeting or part
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thereof be closed. Guidelines on when Council meetings should be held

in closed session and when Council documents should be marked
“Restricted” are found in Appendix F.
Rule 38
Closed meetings of the Council shall be open to the Alternates and

Advisers accompanying the Representatives; to Observers from any
other Contracting State, unless the Council decides otherwise; to the
members of the Secretariat whose attendance is necessary to the
conduct of the meeting or is desired by the Secretary General; and to
any other persons invited by the Council. Closed meetings shall not be
broadcast by the Organization’s monitoring exchange.
Rule 39
Subject to the approval of the Council, the President may invite the
President of the Air Navigation Commission and the Chairmen of
Commissions, Committees or Working Groups who are not Represen-
tatives to attend any open or closed meeting of the Council and
participate in its discussion without the right to vote when business
relating to the work of their Commission, Committee or Working
Group, or to any documentation connected therewith, is before the
Council.
Rule 40
Any Member of the Council may introduce a motion or amendment

thereto, subject to the following rules:
a) with the exception of motions and amendments relative to

nominations, no motion or amendment shall be discussed unless it
has been seconded;
b) no motion or amendment may be withdrawn by its author if an

amendment to it is under discussion or has been adopted;
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c) if a motion has been moved, no motion other than one for an

amendment to the original motion shall be considered until the
original motion has been disposed of. The President shall
determine whether such additional motion is so related to the
motion already before the Council as to constitute a proper amend-
ment thereto, or whether it is to be regarded as an alternative
motion, consideration of which shall be postponed as stipulated
above;
d) if an amendment to a motion has been moved, no amendment other

than an amendment to the original one shall be moved until the
original amendment has been disposed of. The President shall
determine whether such additional amendment is so related to the
original one as to constitute an amendment thereto, or whether it is
to be regarded as an alternative amendment, consideration of
which shall be postponed as stipulated above.
Rule 41
a) The following motions shall have priority over all other motions
and shall be taken in the following order:
1) a motion to reverse a ruling by the President;
2) a motion to adjourn the meeting;
3) a motion to fix the time to adjourn the meeting;
4) a motion to suspend the meeting for a limited time;
5) a motion to defer further debate on a particular question, either

indefinitely or for a limited period greater than that covered by
Rule 42;
6) a motion to refer the matter to a Commission, Committee or

Working Group;
7) a motion to invite the opinions of Contracting States on a

matter, and to postpone final action thereon until reasonable
time for the receipt of such opinions has been allowed;
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8) a motion to terminate the debate on a particular motion and to

take at once a decision thereon.
b) Action on these matters will be determined by a majority of the

votes cast.
Rule 42
Upon the request of any Member of the Council, and unless objection is
raised by the majority of the Members of the Council, further debate on
any item of business shall be deferred for a period of not over two
working days, or until the next Council meeting following the second
day; but no such action under this paragraph shall be admissible when
it would have the effect, due to the anticipated adjournment of a
Council session, of making it impossible to resume consideration of the
deferred item by the seventh day following the action of deferment.
Any such request shall be privileged, and shall be considered
immediately on its presentation.
Rule 43
The Council may decide, by a majority of its Members, to reopen the

discussion of an item already disposed of by the Council in the same
session. In that event, and unless the Council by a majority of its
Members decides that the item be dealt with forthwith, the item
concerned shall be placed on the Order of Business of the next meeting.
SECTION VII
VOTING
Rule 44
Each Member of the Council has one vote.
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Rule 45
With the exception of motions and amendments relative to nominations,

no motion or amendment shall be voted on, unless it has been seconded.
Rule 46
Upon the request of any Member of the Council, and unless a majority
of its Members decide otherwise:
a) final action on any motion or amendment thereto shall be delayed

until the proposed text of the motion or amendment thereto has
been available to Representatives for at least 24 hours;
b) a vote or final action on any item which has been considered shall,
after any initial discussion of the item, be postponed for a period
not exceeding that indicated in Rule 42.
Rule 47
Any amendment shall be voted on before the motion or amendment to

which it refers.
Rule 48
On the request of any Member of the Council, and unless opposed by a

majority of the votes cast, parts of a motion shall be voted on separately.
The resulting motion shall then be put to a final vote in its entirety.
Rule 49
Except in the case of a secret ballot, the vote or the abstention from
voting of any Member of the Council shall be recorded upon his
request. Subject to the same exception, upon the request of any
Member of the Council, the individual votes of all the Members of the
Council shall be recorded. In the latter case, the roll-call shall be taken
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in the English alphabetical order of the names of the Members,

beginning with the Member whose name is drawn by lot by the
President.
Rule 50
Unless opposed by a majority of the Members of the Council, the vote

shall be taken by secret ballot if a request to that effect is supported, if
made by a Member of the Council, by one other Member, and, if made
by the President, by two Members.
Rule 51
A vote received by correspondence or electronically shall not be

counted unless, in a particular case, the Council has previously decided
otherwise. In the latter event, a communication approved by the
Council or under its authority shall be sent to the Member of the
Council concerned for the purpose of ensuring that due consideration is
given to the major points of view expressed on the question before the
vote is sent, and reasonable time shall be allowed for a reply.
Rule 52
In the event of a tie vote, a second vote on the motion concerned shall
be taken at the next meeting of the Council, unless by a majority of the
votes cast the Council decides that such second vote be taken during
the meeting at which the tie vote took place. Unless there is a majority
in favour of the motion on the second vote, it shall be considered lost.
Rule 53
The President may take a preliminary informal vote or poll of the

Members of the Council on any issue, in terms to be phrased by him,
for the purpose of facilitating the subsequent framing of a motion. Such
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informal procedure shall not commit the Council or any Member

thereof. The results of such informal procedure may be recorded in the
Minutes, but no mention of the vote of any Member of the Council
shall be made.
SECTION VIII
APPROVAL OF PROPOSALS
WITH RESPECT TO ADMINISTRATIVE MATTERS
Rule 54
Notwithstanding the other provisions of these Rules of Procedure,

proposals of the Secretary General with respect to such administrative
matters including amendments to administrative regulations as require
approval of the Council may be approved in accordance with the
following procedure:
1) the Secretary General shall distribute to the Representatives of the

Members of the Council a paper explaining his proposals, and the
existence of this paper shall be noted on the Orders of Business of
two Council meetings, the first of which shall be held at least one
week after the date of the distribution of the paper;
2) upon the request of any Member of the Council, filed with the
President at least 24 hours before either of these two meetings, the
paper shall be brought before the Council for consideration under
the normal procedure;
3) in the absence of a request for discussion under the provisions of

paragraph 2) of this Rule, the proposal of the Secretary General
shall be deemed to have been approved on the date of the second
of the two Council meetings in the Orders of Business of which the
existence of the paper has been noted.
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SECTION IX
LANGUAGES OF THE COUNCIL
Rule 55
The discussions of the Council shall be conducted in the English,

Arabic, Chinese, French, Russian and Spanish languages, and
interpretation shall take place accordingly.
Rule 56
The Council shall decide from time to time in which language or

languages, specified in Rule 55, the documentation for the Council
shall be drawn up.
SECTION X
RECORDS OF PROCEEDINGS
Rule 57
a) The Secretary General shall prepare Draft Decisions taken at each

meeting within five working days of the meeting to which they
relate. These shall be submitted to the President for agreement and
shall be distributed to Representatives who shall have three
working days to comment thereon. If there are no objections raised
by Representatives to the content of the Draft Decisions, the
President shall declare them approved. If any objections are raised,
the President shall attempt to resolve them with the Representative
concerned. If the objections are not so resolved, the matter shall be
considered by the Council, without reopening the substance of the
debate, if at least two Representatives ask for it to be so.
b) The Secretary General shall prepare Draft Minutes of each meeting

within six weeks of the session of the Council to which they relate.
These shall be submitted to the President for agreement, distributed
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to Representatives who shall have ten working days to comment

thereon and adopted by the Council either through written
procedure or at a subsequent meeting.
c) After adoption, the text of Decisions and Minutes shall be made

available to Representatives and to Contracting States.
Rule 58
Council documents other than the Minutes of closed meetings may be

provided to non-Contracting States, to international organizations and
to the public, unless otherwise directed by the Council or, between
sessions of the Council, by the President.
Rule 59
The final texts of all resolutions and decisions of the Council, together
with Council working and other papers, shall be made available by the
Secretary General to all Contracting States as soon as possible.
Rule 60
Press releases concerning the proceedings of the Council shall be

prepared by the Secretary General and shall be approved by the
President after consulting with the most senior Vice-President available,
before being made public.
SECTION XI
INTERPRETATION, REVOCATION, SUSPENSION

AND AMENDMENT OF THE RULES OF PROCEDURE
Rule 61
Any Member of the Council may request that any application or

interpretation of these Rules by the President otherwise than during a
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meeting of the Council, be reviewed by the Council. Such request shall

be considered by the Council at its next regular meeting, unless the
President considers it advisable to call a special meeting for that
purpose under Rule 20 of these Rules of Procedure. The action taken by
the President shall stand confirmed unless decided otherwise by a
majority of the votes cast.
Rule 62
In the case of any provision herein which does not specify the majority
by which a decision shall be taken, it is understood that a majority of
the votes cast will be sufficient, provided that if a Member of the
Council has requested that the decision be taken by a majority of
Members of the Council, the latter majority shall apply.
Rule 63
a) These Rules of Procedure or any portion thereof may be revoked,

temporarily suspended or amended by Council decision taken by a
majority of its Members, provided that no such action is in conflict
with the Convention or with any direction given or decision taken
by the Assembly. The Secretary General shall maintain and make
available to Council Members a central record of all such
temporary suspensions.
b) Notwithstanding Rule 26, proposals to amend or revoke these

Rules of Procedure shall be circulated to Representatives at least
ten working days in advance of the meeting of the Council in
which they will be considered.
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Appendix A

President of the Council
1. The Council shall, not less than three months before the
opening of the ordinary session of the Assembly which will elect a new
Council, inform Contracting States that the Council to be elected at that
Session of the Assembly will elect the President of the Council. The
communication should also:
a) invite attention to the provisions of Article 51 of the Convention;
b) set out the qualifications, experience and abilities which candidates

are expected to demonstrate; and
c) indicate the date by which the names of candidates for the

Presidency should be in the hands of the Secretary General.
2. The names of the candidates shall be circulated by the

Secretary General to all Contracting States as soon as they are received.
3. The Council shall invite candidates, at an appropriate date

before the election, to present their views and ideas to a meeting of
Representatives, and to answer any questions which may be posed.
4. The election of the President shall require a majority of the

Members of the Council.
5. If no candidate receives the majority on the first ballot, a

second and, if necessary, subsequent ballots shall be held on the two
candidates who received the largest number of votes in the preceding
ballot. Candidates tying for the last qualifying place in a ballot shall all
be included in the next ballot.
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6. The election shall take place by secret ballot, unless waived by

unanimous decision of the Members represented at the meeting.
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Appendix B

Vice-Presidents of the Council
1. The election of each Vice-President shall require a majority of

the Members of the Council.


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Appendix C
Rules and Procedures for the appointment of the

Secretary General
1. The appointment of the Secretary General will take place

approximately five months before the termination of the period for
which the incumbent was appointed.
2. Ten months before the termination of that period, the Council

shall inform Contracting States that it will proceed to the appointment
of the Secretary General. The communication should also:
a) invite attention to the provisions of Articles 54 (h), 58 and 59 of

the Convention;
b) set out the qualifications, experience and abilities which candidates

are expected to demonstrate; and
c) indicate the date by which the names of candidates for the

Secretary General should be in the hands of the President; that date
to provide Contracting States three full months for reply.
3. The names of the candidates shall be circulated by the

President to all Contracting States as soon as they are received.
4. The Council shall invite candidates, at an appropriate date

before the election, to present their views and ideas to a meeting of
Representatives, and to answer any questions which may be posed.
5. The appointment of the Secretary General shall require a

majority of the Members of the Council.
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Appendix D

of the Members, Alternates and President
of the Air Navigation Commission
1. The appointment of the Members, Alternates and President of

the Air Navigation Commission shall require a majority of the
Members of the Council and, unless waived by unanimous agreement
of the Members represented at the meeting, shall be by secret ballot.
Appointment of Members and Alternates
2. If the number of candidates receiving the required majority on

the first ballot is in excess of the number of places to be filled, those
receiving the highest number of votes shall be appointed. If the number
of candidates appointed on the first ballot is less than the number of
places to be filled, additional ballots shall be held as necessary. In each
ballot subsequent to the first one, the names considered shall be those
having received the highest number of votes in the previous ballot, up
to a total number of candidates equal to twice the total number of
places to be filled. Candidates tying for the last qualifying place in a
ballot shall all be included in the next ballot.
Appointment of President

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4. Pursuant to Rule 16 c), the following constitutes the Guide-

lines relating to the appointment of the President of the Air Navigation
Commission:
a) the candidacies to the post of the President of the Commission

should be declared to the President of the Council;
b) the Commission should indicate to the Council what is expected of

its future President, the major tasks to be performed during its
mandate, and the main qualities needed by its future President in
this context;
c) the Commission should refrain from voting on this issue.
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Appendix E

of the Members, Alternates and Chairmen of
Commissions (other than the Air Navigation
Commission), Committees and Working Groups
1. In cases where the Council has to elect Members, Alternates or

a Chairman of a Standing Commission (other than the Air Navigation
Commission), Committee or Working Group, each Member of the
Council may present names from among the Representatives or
Alternates, with their consent, for inclusion in a list to be presented to
the Council by the President. Not more than one Representative or
Alternate of any State may be elected.
2. The election of Members, Alternates and Chairmen of such

Commissions, Committees and Working Groups shall require a
majority of the Members of the Council and, unless waived by
unanimous agreement of the Members represented at the meeting, shall
be by secret ballot.
Election of Members, Alternates and Chairmen
3. If the number of candidates receiving the required majority on

the first ballot is in excess of the number of places to be filled, those
receiving the highest number of votes shall be elected. If the number of
candidates elected on the first ballot is less than the number of places to
be filled, additional ballots shall be held as necessary. In each ballot
subsequent to the first one, the names considered shall be those having
received the highest number of votes in the previous ballot, up to a total
number of candidates equal to twice the total number of places to be
filled. Candidates tying for the last qualifying place in a ballot shall all
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Appendix F
Guidelines on when Council meetings should be held

in closed session (Rule 37) and when Council
documents should be marked “Restricted”
1. Meetings of the Council should normally be open to the public.

In general, meetings should only be held in closed session if discussion
involves the following:
a) the level of aviation security in specified States or in general;
b) current or future provisions concerning aviation security;
c) salaries or allowances of an individual member of staff or of a

category of staff;
d) disputes between Contracting States; and
e) issues where Representatives’ personal security could be

endangered if their statements were made public.
2. Normally, only documents relating to meetings considering

the subjects listed under a) to e) above should be marked “Restricted”.
— END —
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UNCITRAL Arbitration Rules 2013, Article 17
515
Annex 18
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW
UNCITRAL
Arbitration Rules
(with new article 1, paragraph 4,
as adopted in 2013)
UNCITRAL
Rules on Transparency
in Treaty-based
Investor-State Arbitration
UNITED NATIONS
New York, 2014
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Annex 18
Section III. Arbitral proceedings
General provisions
Article 17
1. Subject to these Rules, the arbitral tribunal may conduct

the arbitration in such manner as it considers appropriate,
provided that the parties are treated with equality and that at
an appropriate stage of the proceedings each party is given a
reasonable opportunity of presenting its case. The arbitral
tribunal, in exercising its discretion, shall conduct the pro-
ceedings so as to avoid unnecessary delay and expense and
to provide a fair and efficient process for resolving the
parties’ dispute.
2. As soon as practicable after its constitution and after

inviting the parties to express their views, the arbitral
tribunal shall establish the provisional timetable of the
arbitration. The arbitral tribunal may, at any time, after inviting
the parties to express their views, extend or abridge any
period of time prescribed under these Rules or agreed by
the parties.
3. If at an appropriate stage of the proceedings any party so

requests, the arbitral tribunal shall hold hearings for the
presentation of evidence by witnesses, including expert
witnesses, or for oral argument. In the absence of such a
request, the arbitral tribunal shall decide whether to hold such
hearings or whether the proceedings shall be conducted on the
basis of documents and other materials.
4. All communications to the arbitral tribunal by one party

shall be communicated by that party to all other parties. Such
communications shall be made at the same time, except as
otherwise permitted by the arbitral tribunal if it may do so under
applicable law.
5. The arbitral tribunal may, at the request of any party, allow

one or more third persons to be joined in the arbitration as a
party provided such person is a party to the arbitration
agreement, unless the arbitral tribunal finds, after giving all
parties, including the person or persons to be joined, the
opportunity to be heard, that joinder should not be permitted
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because of prejudice to any of those parties. The arbitral tribunal

may make a single award or several awards in respect of all
parties so involved in the arbitration.
Place of arbitration
Article 18
1. If the parties have not previously agreed on the place of

arbitration, the place of arbitration shall be determined by the
arbitral tribunal having regard to the circumstances of the case.
The award shall be deemed to have been made at the place of
arbitration.
2. The arbitral tribunal may meet at any location it considers

appropriate for deliberations. Unless otherwise agreed by the
parties, the arbitral tribunal may also meet at any location it
considers appropriate for any other purpose, including hearings.
Language
Article 19
1. Subject to an agreement by the parties, the arbitral tribunal

shall, promptly after its appointment, determine the language or
languages to be used in the proceedings. This determination shall
apply to the statement of claim, the statement of defence, and
any further written statements and, if oral hearings take place,
to the language or languages to be used in such hearings.
2. The arbitral tribunal may order that any documents annexed

to the statement of claim or statement of defence, and any
supplementary documents or exhibits submitted in the course
of the proceedings, delivered in their original language, shall
be accompanied by a translation into the language or languages
agreed upon by the parties or determined by the arbitral
tribunal.
Statement of claim
Article 20
1. The claimant shall communicate its statement of claim in

writing to the respondent and to each of the arbitrators within
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First Riyadh Agreement, 23 and 24 November 2013
_ United Nations, Treaty Series _ (no. I-55378)
519
Annex 19
First Riyadh Agreement
On Saturday, 19/1/1435 (Hijri Calendar, November 2013), the Custodian of the Two Holy
Mosques King Abdullah Bin Abdel Aziz Al-Saud, the King of Saudi Arabia, and his brother His
Highness Sheikh Sabbah Al-Ahmad Al-Jabber Al-Sabbah, the Prince of Kuwait, and his brother
His Higness Sheikh Tamim bin Hamad bin Khalifa Al-Thani, the prince of Qatar, met in Riyadh.
They held extensive deliberations in which they conducted a full revision of what taints the
relations between the [Gulf Cooperation] Council states, the challenges facing its security and
stability, and means to abolish whatever muddies the relations.
Due to the importance of laying the foundation for a new phase of collective work between the
Council’s states, in order to guarantee it operating within a unified political framework based on
the principles included in the main system of the Cooperation Council, the following has been
agreed upon: (here there three signature)
1. No interference in the internal affairs of the Council’s states, whether directly or

indirectly. Not to give harbor or naturalize any citizen of the Council states that has an
activity which opposes his country’s regimes, except with the approval of his country; no
support to deviant groups that oppose their states; and no support for antagonistic media.
2. No support to the Muslim Brotherhood or any of the organizations, groups or individuals

that threaten the security and stability of the Council states through direct security work
or through political influence.
3. Not to present any support to any faction in Yemen that could pose a threat to countries
neighboring Yemen.
[Signatures]
520
Annex 19
In the name of God the Merciful the Compassionate
A review was conducted of the Agreement dated 1/19/1435AH, corresponding to

11/23/2013AD, and signed by the Custodian of the Two Holy Shrines, King Abdullah bin
Abdul Aziz Al Saud of the Kingdom of Saudi Arabia, His Highness Sheikh Sabah Al-Ahmed
Al-Jaber Al-Sabah, Emir of the State of Kuwait, and His Highness Sheikh Tamim bin Hamad
bin Khalifa Al Thani, Emir of the State of Qatar, which includes the means for eliminating
anything that affects the security and stability of the Council States.
We hereby support the conclusions reached in the agreement. Success is from Allah.,,,
Sheikh Mohamed bin Zayed H.M. King Hamad bin Isa Al Khalifa
[signature] [signature] [signature]
1/20/1435AH
11/24/2013AD
521
Annex 19
Official Arabic Text
First Riyadh Agreement
522
Annex 19
523
Annex 19
524
Annex 20
Mechanism Implementing the Riyadh Agreement, 17 April 2014
525
Annex 20
Mechanism Implementing the Riyadh Agreement
Top Secret
Having the Foreign Ministers of the Cooperation Council Countries considered the
Agreement signed in Riyadh on 19/1/1435 AH corresponding to 23/11/2013 AD by the
Custodian of the Two Holy Mosques King Abdullah bin Abdul Aziz King of the Kingdom of
Saudi Arabia, his brother his Highness Sheikh Sabah Al-Ahmed Al-Jabir Al-Sabah Emir of
Kuwait and his brother his Highness Sheikh Tamim bin Hamad bin Khalifa Al-Thani Emir of
Qatar. Having the Agreement been considered and signed by His Majesty King Hamad bin Isa
Al-Khalifa King of Bahrain, His Majesty Sultan Qaboos bin Saeed the Sultan of Oman and His
Highness Sheikh Mohammed bin Zayed bin Sultan Al-Nahyan the Crown Prince of Abu Dhabi
and Deputy Supreme Commander of the UAE Armed Forces.
Given the importance of the signed Agreement that never before had any similar
agreement been signed, out of the leaders’ realization to the importance of its content, and for the
urgency of the matter that calls for taking the necessary executive procedures to enforce its
content. An agreement has been reached to set a mechanism that shall guarantee implementation
of the same according to the following:
Firstly: The concerned party to monitor the implementation of the Agreement:
Foreign Ministers of the GCC Countries:
Foreign ministers of the GCC Countries shall hold private meeting on the margins of
annual periodic meetings of the ministerial council wherein violations and complaints reported
by any member country of the Council against any member country of the Council shall be
reviewed by the foreign ministers to consider, and raise them to leaders. With the emphasis that
the first task the Council shall conduct, according to the mentioned mechanism, is to make sure
of the implementation of all content, mentioned above, within Riyadh Agreement, consider its
content a basis to the security and stability of the GCC Countries and its unity, either with regard
to those issues of internal affairs, external political aspects or internal security; and ensuring that
no country neglects or omits the group orientation of the GCC, and shall coordinate with all
members of the GCC; and emphasizing that no support is being made to any currents that pose
threats to any member country of the Council.
Secondly: Decision-making body:
Leaders of the GCC Countries:
The leaders shall take the appropriate action towards what the Ministers of Foreign
Affairs raise to them regarding any country that has not complied with the signed agreement by
the GCC Countries.
Thirdly: Compliance procedures:
526
Annex 20
This Agreement shall be implemented by the following procedures:
1. With Regard to GCC Countries Internal Affairs:
- Commit that any media channels owned or supported by any GCC country should not
discuss any disrespectful subjects to any GCC Country, directly or indirectly. The GCC
Countries shall set a list by these media channels, and the list shall be periodically
updated.
- All member countries shall commit that they will not grant citizens of other GCC
Countries a citizenship who have been proven to practice opposition activity against their
governments. Every country shall inform the other countries on the names of the
opposition figures residing in such country in order to prevent their violative activities
and take the appropriate actions against them.
- Take the necessary actions that would guarantee no interference in any GCC Country
internal affairs, including, but not limited to:
a. Governmental organizations, community organizations, individuals and activists

shall not support opposition figures with money or via media.
b. Not to shelter, accept, support, encourage or make its country an incubator to the
activities of GCC citizens or other figures who are proven oppositionists to any
country of GCC.
c. Ban the existence of any external organizations, groups or parties, who target
GCC Countries and their peoples; nor provide foothold for their hostile activities
against the GCC Countries.
d. Not to fund or support external organizations, groups or parties, that have hostile
positions and incitements against the GCC Countries.
2. With regard to the foreign policy:
Commit to the group orientation of the GCC Countries, coordinate with other GCC countries
and shall not support any entities or currents that pose threats to the GCC Countries, including:
a. Not to support Muslim Brotherhood with money or via media in the GCC
Countries or outside.
b. Approve the exit of Muslim Brotherhood figures, who are not citizens, within a
time limit to be agreed upon. The GCC Countries shall coordinate with each other
on the lists of those figures.
c. Not to support external gatherings or groups in Yemen, Syria or any destabilized

area, which pose a threat to the security and stability of GCC Countries.
527
Annex 20
d. Not to support or shelter whoever perform opposition activities against any GCC
country, being current officials, former officials or others; and shall not give them
any foothold inside their countries or allow them to act against any of the GCC
Countries.
e. Close any academies, establishments or centres that train and qualify individuals
from GCC citizens to work against their governments.
3. With regard to the internal security of the GCC Countries:
In the event of any pending security files that need further clarification and are directly
connected to the security matters of the competent security agencies in any GCC country,
immediate meetings shall be held among security specialists with their counterparts to discuss
the details of these subjects and find out their objectives.
If any country of the GCC Countries failed to comply with this mechanism, the
other GCC Countries shall have the right to take ant appropriate action to protect their
security and stability.
Allah is the grantor of success,,,
[signature] [signature]
His Highness Sheikh Abdullah bin Zayed Al His Excellency Sheikh Khalid bin Ahmed Al
Nahyan, Foreign Minister of United Arab Khalifa, Foreign Minister of Kingdom of
Emirates Bahrain
His Royal Highness Prince Saud Al Faisal, His Excellency Yusuf bin Alawi bin
Foreign Minister of Kingdom of Saudi Abdullah, Minister Responsible for Foreign
Arabia Affairs of Sultanate of Oman
His Excellency Dr. Khalid bin Mohammad His Excellency Sheikh Sabah Al-Khalid Al-
Al Attiyah, Foreign Minister of State of Qatar Hamad Al-Sabah, Deputy Prime Minister and
Minister of Foreign Affairs of State of
Kuwait
528
Annex 20
Mechanism Implementing the Riyadh Agreement
529
Annex 20
530
Annex 20
531
Annex 20
532
Annex 20
533
Annex 20
534
Annex 20
535
536
Annex 21
Supplementary Riyadh Agreement, 16 November 2014

537
Annex 21
The Supplementary Riyadh Agreement
Top Secret
In the Name of Allah, the Most Beneficent, the Most Merciful
1. Based on a generous invitation by the Custodian of the Two Holy Mosques King Abdullah Bin Abdel-Aziz
Al-Saud, the king of Saudi Arabia, the following have met in Riyadh today, Sunday, 23/1/1436 (Hijri
Calendar), 16/11/2014 (Gregorian Calendar): His Highness Sheikh Sabah Al-Ahmad Al-Jaber Al-Sabbah,
the Prince of Kuwait, His Majesty King Hamad Bin Eissa Al-Khalifa, King of Bahrain; His Highness
Sheikh Tamim Bin Hamd Bin Khalifa Al-Thani , Prince of Qatar; His Highness Sheikh Mohamed Bin
Rashed Al-Maktom, the Vice President and Prime Minister of the United Arab Emirates and the Governor
of Dubai; and His Highness Sheikh Mohamed Bin Zayed Al-Nahyan, the Crown Prince of Abu Dhabi, and
the deputy Commander of the Armed Forces of the United Arab Emirates. This was to cement the spirit of
sincere cooperation and to emphasize the joint fate and the aspirations of the Citizens of the Gulf
Cooperation Council for a strong bond and solid rapprochement.
2. After discussing the commitments stemming from the Riyadh Agreement signed 19/1/1435 (Hijri) –
23/11/2013 and its executive mechanism ; reviewing the reports of the committee following the execution
mechanism and the results of the joint follow-up [operation] room; and reviewing the conclusions of the
report of the follow-up room signed on 10/1/1436 (Hijri) – 3/11/2014 (Gregorian) by the intelligence
chiefs of the Kingdom of Saudi Arabia, the United Arab Emirates, the Kingdom of Bahrain and the state
of Qatar.
3. The following has been reached:
a) Stressing that non-committing to any of the articles of the Riyadh Agreement and its executive
mechanism amounts to a violation of the entirety of them.
b) What the intelligence chiefs have reached in the aforementioned report is considered a step
forward to implement Riyadh agreement and its executive mechanism, with the necessity of
the full commitment to implementing everything stated in them within the period of one
month from the date of the agreement.
c) Not to give refuge, employ, or support whether directly or indirectly, whether domestically or
abroad, to any person or a media apparatus that harbors inclinations harmful to any Gulf
Cooperation Council state. Every state is committed to taking all the regulatory, legal and
judicial measures against anyone who [commits] any encroachment against Gulf Cooperation
Council states, including putting him on trial and announcing it in the media.
d) All countries are committed to the Gulf Cooperation Council discourse to support the Arab
Republic of Egypt, and contributing to its security, stability and its financial support; and
ceasing all media activity directed against the Arab Republic of Egypt in all media platforms,
whether directly or indirectly, including all the offenses broadcasted on Al-jazeera, Al-Jazeera
Mubashir Masr, and to work to stop all offenses in Egyptian media.
538
Annex 21
4. Accordingly, it has been decided that the Riyadh Agreement, and its executive mechanism, and the
components of this supplementary agreement, requires the full commitment to its implementation. The
leaders have tasked the intelligence chiefs to follow up on the implementation of the results of this
supplementary agreement and to report regularly to the leaders, in order to take the measures they deem
necessary to protect the security and stability of their countries.
5. It has been agreed that implementing the aforementioned commitments contributes towards the unity of
the Council states and their interests and the future of their peoples, and signals a new page that will be a
strong base to advance the path of joint work and moving towards a strong Gulf entity.
[Signatures]
Note that the UAE has 2 signatures on this page one for His Highness Sheikh Mohamed Bin Rashed Al-
Maktom, the Vice president and Prime Minister of the UAE and the Ruler of Dubai; and another one by His
Highness Mohamed Bin Zayed Al-Nahyan, the Crown Prince of Abu Dhabi, and the deputy Commander of
the Armed Forces of the UAE.
539
Annex 21
540
Annex 21
541
Annex 21
542

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INTERNATIONAL COURT OF JUSTICE

APPEAL RELATING TO THE JURISDICTION OF THE

(BAHRAIN, EGYPT AND UNITED ARAB EMIRATES v. QATAR)

MEMORIAL OF THE KINGDOM OF BAHRAIN,

International Treaties and Rules

Annex 1 Convention on International Civil Aviation, signed at 1

Annex 2 International Air Services Transit Agreement, signed at 43

Annex 3 Pact of the League of Arab States, signed at Cairo on 51

Annex 4 Agreement between the United Nations and the 71

Annex 5 International Law Commission, Commentary on the 87

Annex 6 ICAO, Rules for the Settlement of Differences, approved 99

Annex 7 International Law Commission, Model Rules on Arbitral 115

Annex 9 United Nations Convention on the Law of the Sea, 165

Annex 10 League of Arab States, Arab Convention on the 179

Annex 12 International Convention for the Suppression of 221

Annex 13 International Law Commission, Articles on 253

Annex 14 GCC Anti-Terrorism Agreement, signed at Kuwait City 369

Annex 15 UNCITRAL Model Law on International Commercial 403

Annex 16 Security Agreement Between the States of the Gulf 453

Annex 18 UNCITRAL Arbitration Rules 2013, Article 17 515

Annex 19 First Riyadh Agreement, 23 and 24 November 2013 519

Annex 20 Mechanism Implementing the Riyadh Agreement, 525

Annex 21 Supplementary Riyadh Agreement, 16 November 2014 537

Convention on International Civil Aviation,

International Air Services Transit Agreement,

Pact of the League of Arab States,

International Law Commission, Commentary on the Draft

Commentary on the Draft Convention on Arbitral Procedure Adopted by the International

Downloaded from the web site of the International Law Commission

Copyright © United Nations

ICAO, Rules for the Settlement of Differences, approved on 9 April 1957;

International Law Commission, Model Rules on Arbitral Procedure

Model Rules on Arbitral Procedure

Copyright © United Nations

United Nations Convention on the Law of the Sea,

League of Arab States, Arab Convention on the Suppression

Convention of the Organization of the Islamic Conference

ANNEX TO RESOLUTION NO: 59/26-P

OF THE ORGANISATION OF THE ISLAMIC CONFERENCE

COMBATING INTERNATIONAL TERRORISM

The Member States of the Organisation of the Islamic Conference,

Definition and General Provisions

For the purposes of this Convention:

1. "Contracting State" or "Contracting Party" means every Member State in the

a) Convention on "Offences and Other Acts Committed on Board of

b) Convention on "Suppression of Unlawful Seizure of Aircraft" (The

c) Convention on "Suppression of Unlawful Acts Against the Safety of

d) Convention on the "Prevention and Punishment of Crimes Against

e) International Convention Against the Taking of Hostages (New York,

g) Convention on the "Physical Protection of Nuclear Material" (Vienna,

h) Protocol for the Suppression of Unlawful Acts of Violence at Airports

i) Protocol for the Suppression of Unlawful Acts Against the Safety of

j) Convention for the Suppression of Unlawful Acts Against the Safety of

k) International Convention for the Suppression of Terrorist Bombings

l) Convention on the Marking of Plastic Explosives for the purposes of

a. Peoples' struggle including armed struggle against foreign occupation, aggression,

1. Aggression against kings and heads of state of Contracting States or against

2. Aggression against crown princes or vice-presidents or deputy heads of

3. Aggression against persons enjoying international immunity including