The Tenacity of the Articles on State Responsibility as a General and Residual Framework: An Appraisal

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The twenty-year old Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) are considered one of the cornerstones of international law and they are widely referenced by international judicial bodies. They form a unified regime of responsibility, expressing the core ideas of responsibility applicable to the breach of any and all obligations of states (ARSIWA, Art 12), at least in principle. Still, the rules have not regulated the issue of state responsibility to the full extent, and the different elements of ARSIWA – the conditions for the existence of an internationally wrongful act, the content and implementation of responsibility – are relevant to a varying degree. Many open issues remain regarding the conditions for the existence of an internationally wrongful act, and while the content of state responsibility with reparation is widely accepted, the serious breaches regime has remained weak so far. What is more, few international lawyers would describe implementation of responsibility, which largely relies on self-help and collective countermeasures, as well-functioning. Several uncertain issues, such as the the appropriate level of attribution, collective countermeasures, and how to share responsibility between several actors, have indeed received much attention by international lawyers.

One of the reasons for the tenacity of the ARSIWA despite being the product of ‘codification light’ and containing some underdeveloped rules (on which see Bordin, in this symposium), is the fact that they make explicit use of the legal principle lex specialis derogat legi generali. The general and residual nature of the rules of state responsibility is established in Article 55: ‘These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.’ States are thus free to take a different approach to responsibility than that prescribed by the general rules which, according to the ILC, they often do (ARSIWA Art 55, Commentary para 1). As a result, responsibility in international law is regulated by a core of rules that are applicable in a general and residual way (which I here call ‘the centre’), and specifically agreed rules which complement or deviate from this core. This triggers the question: How far can states deviate before the centre gives way?

The relationship between general and special rules

The relevance of the general rules depends to a large extent on how we understand the relationship between general and special rules, if the issue is left open by the special rule itself (ARSIWA Art 55, Commentary para 3). For universalistically inclined scholars, the general rules apply as a starting point unless there are special rules governing the legal situation, either in part or in full. As was noted by the ILC Study Group on the Fragmentation of International Law: ‘No rule, treaty, or custom, however special its subject-matter…applies in a vacuum’. The fallback on general rules thus arguably happens frequently as there exists very few truly self-contained regimes (if at all), a fact that stresses the resilience of the general framework.

The relationship between the general and the special rules is nevertheless delicate and debated. On the one hand, the lex specialis embodied in Article 55 has ensured the continued relevance of the general rules because it allows states to create and apply complementary – or even wholly different – rules of state responsibility; on the other hand, if the special rules deviate more and more from the responsibility ideas embodied in the general rules this can undermine them. This latter possibility of special rules rendering general rules without use was not seen as a danger in the ILC when it pondered the matter. In fact, when the ARSIWA were finalized it was never expected the general rules to manage solely on their own. The issue of whether the centre will hold was not effectively raised concerning ARSIWA, in contrast to the drafting of the Articles on the Responsibility of International Organizations (ARIO) where the subject was addressed (here, at 130-131).

The significance of the general rules varies between different branches of international law. At the one end of the spectrum we find self-contained regimes, such as WTO law, which leaves little room for the application of general rules of state responsibility (see Jan-Yves Remy post to appear later on in this symposium); at the other end there are branches such as global health law, which the whole set of general and residual rules applies to in principle. But there are also fields of international law that rely on responsibility constructions that are highly different from ARSIWA. The deviation from the general rules can be considered so extensive that it effectively forms a crack to the centre of state responsibility. Moreover, some fields of international law have shifted focus to completely different responsibility regimes, which arguably reduces the application of state responsibility and its centre altogether. Both of these movements ‘away from the centre’ are addressed next.

The fragmentation of responsibility

There exist problems or situations in the contemporary world that the centre of state responsibility cannot address in a satisfactory manner. This may be due either to the heinous nature of the act or omission (requiring a more stringent responsibility regime) or the need to foster a more cooperative arrangement (requiring a less stringent responsibility regime). One branch of international law, which reconceptualizes the centre, is international environmental law with its focus on non-adversarial models of responsibility, emphasizing non-compliance procedures and capacity-building rather than pitching states against each other. The traditional bilateral approach of state responsibility fits poorly with addressing climate change, for instance, with regard to issues of causation, the incalculable number of victims and the means of reparation.

When it comes to responding to serious violations of international law, such as genocide or other atrocities, attention and resources have shifted from state responsibility to international criminal responsibility – a qualitatively different kind of responsibility regime. The serious breaches regime of ARSIWA has been considered toothless and having little signalling effect, and the desire to go beyond reparation to ensure punishment and presumed concomitant deterrence is manifested in international criminal responsibility (Creutz 2020, 167-168). While international criminal responsibility represents the hardening of the approach embodied by the centre of state responsibility, there are also efforts to soften up the centre. Liability for lawful acts generating harm constitutes such an example and effectively contributes to the fragmentation of the law of state responsibility. The will to ensure adequate compensation, for example, in cases of oil pollution or nuclear damage, shows that states have sought solutions where the centrality of wrongfulness is de-emphasized. In addition, there is a will to broaden the sphere of responsible actors beyond the state.

The resilient but less relevant centre of state responsibility

Irrespective of the fragmentation of responsibility and the variations in the application and aptness of the general rules forming the centre of state responsibility, the rules continue to attract interest and praise. One reason for this pertains to the frequent occurrence of ARSIWA in international judicial decisions – a development which is likely to continue. It may be worth noting, however, that occasionally the referencing to ARSIWA may be more about ‘signposting’ than about qualitative usage (for example, in investment treaty arbitration, see Crawford 2010, 132). The mindset of the international lawyer will also support the resilience of the centre. The rules have allowed international lawyers to maintain and advance the basic proposition that international law is really hard law and that legal consequences ensue from breaches. The international lawyer working for the government needs the rules to sustain her construction of the rules-based international order in international diplomacy, as does the theoretically inclined international lawyer focusing on the constitutionalization of the international legal order.

While the centre will remain – sometimes in the foreground, sometimes in the background – alternative responsibility thinking will persist because states wish to highlight penalization or compensation in some responsibility matters. There is no reason to believe that this development will reverse in the future even while the adolescent ARSIWA continues to mature. That naturally raises the question of whether calling the general and residual framework ‘the centre’ is still justified, and whether we will witness more and more special responsibility regimes only loosely connected to the ARSIWA, if at all. With the current international negotiating climate being characterized by uncertainty and lack of states’ trust in each other, it is nevertheless difficult to envisage in what issue areas states could agree upon new special regimes. The need for functionally different responsibility regimes will nevertheless endure, as the centre cannot fulfill all the purposes international lawyers tend to ascribe to it.

 

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Evelyne Schmid says

August 9, 2021

Thank you and the other authors of the symposium very much for your contributions. I would be curious to know your (or others’) thoughts on the potential relevance of the Articles in relation to omissions by states in the field of climate regulation. You write that international environmental law focuses on non-adversarial models of responsibility and avoids 'pitching states against each other'. There are some ways to use of state responsibility without necessarily pitching states against each other (e.g., domestic actors using the Articles to flag breaches by their own state or the much-discussed idea of a future Advisory Opinion etc.). Would/could it, in your view, contribute to solution-finding for the looming climate disaster if ‘the invisible college of international lawyers’ would further explore the use of the Articles in this field despite the limitations you mention or do you think these limitations will *inevitably* mean that recourse to state responsibility will be unsatisfactory (i.e. less promising than other avenues)?