Articles on Responsibility of States for Internationally Wrongful Acts and Human Rights Practice

How should we consider the relationship between the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and human rights practice over the past 20 years? Provocative positions have at times been expressed. At one end of the spectrum are assertions of the ‘irrelevance’ of ARSIWA to human rights treaties (Evans 2004), or the latter being presented as ‘lex specialis’ in respect of ARSIWA as a whole (Mapiripán, para 107) (see also Katja Creutz’s post in this symposium). At the other, is a maelstrom of academic criticism when human rights courts depart from the ARSIWA framework. Behind these positions lurk serious questions as to the influence that ARSIWA has had, and should have. Simply put, how much do the Articles actually matter to the challenges facing human rights today?

A detailed analysis of ARSIWA’s contribution and potential obviously goes beyond the remit of this blog. But a few reflections are offered on i) the nature of ARSIWA’s real, and growing, influence; ii) areas of progress and tensions; and iii) some of the challenges ahead, if ARSIWA’s potential in this area is to be realised.

Understanding the influence on ‘human rights practice’

The human rights field has grown exponentially since the adoption of ARSIWA in 2001. Oft-cited in support of ARSIWA’s increasing relevance is the mounting number of references in supranational human rights judgments. To understand the influence of ARSIWA, however, we need to ask not only whether, but how and why, ARSIWA is invoked. We should also look beyond human rights courts to the range of other (quasi-)judicial actors increasingly engaged in human rights adjudication (e.g. ICJ, ECOWAS, ECJ or ICSID citing ARSIWA). ARSIWA’s relevance is explicit and implicit in judgments, nestled in individual opinions (revealing their background role in deliberations) or evident in the submissions of parties and interveners, triggering judicial reference.

We also need to look beyond the courts, to other actors that interpret, apply and use international law to protect human rights, and to state practice. As illustrated below, ARSIWA has been reflected in UN resolutions, national cases, General Comments (e.g. UNHRC GC36), international and national enquiries, NGO submissions, and states’ positions. More important than the number of references in judgments may be this harnessing, by a broader range of human rights actors, of the vocabulary and values of ARSIWA to frame demands in relation to responsibility and response.

Invoking ARSIWA: Progress & Tensions

The shift towards increased engagement with ARSIWA is quantitative and qualitative. Much early engagement took a ‘cut and paste’ approach from ARSIWA to the applicable law sections of judgments, without explaining its role. But practice reveals a distinct, if uneven, shift towards more meaningful engagement, to various ends.

At times ARSIWA has not been decisive, but lent authority to judgments as reflecting principles or even ‘cornerstones’ of international law. Thus, the African Court, IACtHR and the ECtHR cited ARSIWA to clarify the scope of de facto organs, to push back against attempts to justify non-compliance with international obligations by reference to domestic law (amnesties or blocked political participation), or to underscore the need for ‘full reparation’, for example.

However, as two groups of issues illustrate, regard to the Articles has also been erratic and controversial.

Overlooking ARSIWA? The ECtHR and the IACtHR have occasionally been criticized for ‘avoiding’ or ‘reinventing’ ARSIWA attribution rules. This has raised speculation as to whether special human rights considerations arose, IHRL was applied as lex specialis (Article 55), ARSIWA was misapplied, or the Courts were just misunderstood.

A striking example is the Behrami case. The ECtHR resorted to an ‘ultimate authority’ test to determine that conduct of the UN Mission in Kosovo was attributable to the Security Council, excluding the responsibility of respondent states. The Court was addressing a state responsibility question, and its approach was a ‘clear departure’ (Crawford and Keene) from Article 5 without the ‘clear expression’ of lex specialis (Milanovic). It was also at odds with the purpose and principles of IHRL. One, arguably, for the ‘misapplication’ category.

Other cases may reflect misunderstanding as to the questions the Court was asking and answering. For example, when the ECtHR found states responsible on account of their ‘acquiescence and connivance’ in CIA rendition (first in el Masri), it may not have been misapplying the attribution test, but finding a failure of broader ‘positive obligations’ of due diligence under IHRL. This view is borne out by subsequent ECtHR rendition cases (eg. Abu Zubaydah) and frequent reference to ‘acquiescence’ as a basis for failure of positive obligations in the Interamerican system (e.g. here para 104).

Considering it ‘unnecessary’ (Carrascal, para 36) to address attribution where the state has breached primary obligations may be understandable. But it overlooks the normative and political value of attributing conduct to the state, and that the implications for reparation and ensuring non-repetition, may be distinct. ARSIWA therefore deserves greater attention, not to qualify or restrict positive obligations, but to complement them as an additional basis of responsibility.

 Aiding and Assisting, and Collectivising Responsibility

ARSIWA has however assumed a central role in other contexts. This is illustrated by the ‘war on terror’ which shares a 20th anniversary with ARSIWA. In light of e.g. CIA torture, arbitrary detention at Guantanamo, and associated impunity, ARSIWA came into its own by providing a framework to understand the multi-state ‘global spiders web of complicity.’ UN Special Rapporteurs, NGOs, parliamentary enquiries, national judgments (Belhaj, para 77) and pleadings (including a recent UNWGAD claim against 7 states with shared responsibility) have all framed the provision of logistical support, refuelling planes or facilitating interrogation in terms of Article 16. This newfound power of ‘aiding and assisting’ has been central to arguments by rights advocates elsewhere, such as in legal challenges to arms sales to Saudi Arabia.

Likewise, Articles 40, 41 and 48, on the universal collective interest in rights protection, and consequences for ‘all States,’ have found authoritative expression in several ICJ opinions and cases (the Wall, Belgium v Senegal, Gambia v. Myanmar and Chagos Islands). National courts have considered their relevance to the admissibility of torture evidence (A and others), immunities (Ferrini) and duties to cooperate to end torture (Al Rawi). UN special rapporteurs, NGOs and parliamentarians have invoked them to press for action, including on Guantanamo and torture prevention.

Challenges ahead & unfulfilled potential 

ARSIWA has breathed new life into the law of state responsibility, and made it more accessible and relevant to a range of human rights actors, as practice makes clear. What does that growing practice say about how to characterize the relationship and challenges for the future?

Clearly, it is no longer open to question that the two are interconnected. If there can be a fully self-contained legal regime, IHRL is not it (Tams p 254). There may be special rules, such as derogation and limitation provisions vis-à-vis Article 25 on ‘necessity’ (Ryngaert). There is also a detailed body of IHRL on positive obligations, whose flexibility is crucial to IHRL’s relevance and preventive potential to address key current challenges, from the multiplicity of unaccountable actors to the climate crisis (as booming human rights climate litigation attests). These rules will understandably be central in human rights judgments, and should not be curtailed, but complemented, by ARSIWA.

Undoubtedly, relationship tensions have been fuelled by lack of clarity and transparency by the Courts themselves. The recent shift to a more articulate approach to ARSIWA, whether, when and why it might be applied (eg Big Brother ECtHR, para. 420; Carrascal above) is therefore promising.  

Challenges may also derive from shortcomings or uncertainties of the Articles themselves. These should be addressed as ARSIWA is interpreted and applied in practice, so as to ensure relevance and impact. ARSIWA’s state centricity, blind to individuals as claimants or those to whom reparation is due, is an obvious limitation, or even anomaly, in the enforcement of IHRL today. On the other side, the overwhelming realities of non-state actor violations call for engagement with their responsibility. This has led to crucial, if incomplete, developments in IHRL since 2001, such as the Ruggie Principles on corporate responsibility or the recent UN experts statement on organised armed groups. As the primary rules of international law evolve, can ARSIWA keep pace? State practice citing Article 16 (by analogy) as precluding ‘aiding and assisting’ non-state groups in Syria (here), may suggest one form of evolution, but there is a long way to go.

The ever more complex, fluid and opaque relationships between states and the non-state entities increasingly engaged in security, immigration and other public functions, gives ARSIWA a crucial role in the legal conceptualization of those relationships. But their relevance may also be challenged by stringent standards. The Article 8 test requires proof of ‘direction or control of conduct’, rarely available in the clandestine world of IHRL violations. It is perhaps no coincidence that advocates and courts have been reluctant to engage with attribution, in favour of positive obligations. What ‘established in law’ requires, for the exercise of government functions under Article 5 (Mills), or whether the knowledge requirement under Article 16 includes constructive knowledge, so states cannot hide behind ‘willful blindness,’ should all be further clarified as practice develops. It remains to be seen whether the rules are interpreted and applied, as human rights courts have often insisted, in a way that is ‘practical and effective not theoretical and illusory’ (eg here para 50).

Ultimately, we see significant complementarity, and a relationship yet to meet its potential. The most crucial test of this is enforcement – the Achilles heel of the IHRL system. Before ARSIWA was adopted in 2001, James Crawford wrote that: ‘One of the most important modern ideas about international obligations is that at least some obligations are universal in scope, and cannot be reduced to bundles of bilateral interstate relations [but]owed to the “international community as a whole.” Bruno Simma  referred to ARSIWA as this ‘community interest coming to life.’ At a factious time for human rights in a divided world, the expressive power of this idea should not be underestimated. These values must be given effect in practice, including through collective invocation of responsibility and collective counter-measures. Egregious wrongs, massive threats and inadequate responses – from Myanmar to Palestine, Syria to Guantanamo Bay, or globally from the scourge of modern slavery (Webb) to climate tipping points (WewerinkeSingh) – demand urgent collective responses, and a closer partnership between ARSIWA and human rights practice