~ This post has been authored by the Editorial Team of The Writ Review. 

When a state, through its actions or lack thereof, fails to uphold an international obligation, it becomes internationally responsible. This principle, known as state responsibility, applies to various contexts including environmental damage, breaches of international peace, and other violations of international law. Generally, the acts or omissions in the following cases entail State Responsibility: environment (pollution, nuclear vessels, space vehicles, etc.), international peace (eg. aggression), and violation of other forms of international law.

In essence, state responsibility ensures that states are held accountable for their actions or inactions that breach international obligations, providing a framework for reparations and justice in the international community. The Permanent Court of International Justice in Poland vs Germany observed:

“It is a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered [p28] as a result of the act which is contrary to international law. This is even the most usual form of reparation;”

Contribution of the International Law Commission (ILC)

The International Law Commission (ILC) embarked on an ambitious project to codify the principles of State Responsibility into a structured Draft Code. This Draft Code was envisioned to be comprehensive, covering all aspects of State Responsibility under international law, and was divided into three main parts:

Part I: Origin of International Responsibility This part lays the foundation for the entire Draft Code by addressing the origins of international responsibility. It consists of 35 draft articles, which are further divided into five chapters. These articles and chapters collectively establish the framework for when and how states may be held responsible for their actions or omissions under international law.

Part II: Content, Forms, and Degrees of International Responsibility During its 32nd session in 1980, the ILC began deliberating on Part II, which delves into the substance of international responsibility. This includes the various forms it can take, the degrees or levels of responsibility, and the nuances of how responsibility is assessed and determined in different contexts.

Part III: Settlement of Disputes and Implementation of International Responsibility The final part of the Draft Code addresses the mechanisms for resolving disputes arising from State Responsibility and the methods for implementing international responsibility. This includes procedures for adjudication, reparations, and ensuring compliance with international obligations.

After more than two decades of extensive work, the ILC completed the Draft Code on the Responsibility of States for Internationally Wrongful Acts in 2001. This monumental document not only serves as a guide for states and international bodies but also influences the decisions of international courts and tribunals. The Draft Code has become a cornerstone in the field of international law, reflecting the customary international law on the subject of State Responsibility.

The completion of the Draft Code marked a significant achievement for the ILC and the international legal community, providing clarity and direction on the complex and often contentious issues surrounding State Responsibility. It is a testament to the enduring effort to bring order and predictability to international relations and the conduct of states on the global stage.

The Draft Articles of the International Law Commission have become emblematic of the customary international law principles pertaining to State Responsibility. This assertion is substantiated by several recent adjudications of the International Court of Justice, including the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), and the Case Concerning the Obligation to Prosecute or Extradite (Belgium v. Senegal). In these instances, the legal principles invoked align with those encapsulated within the ILC Draft Articles. Furthermore, the significance of the Eritrea-Ethiopia Claims Commission Award in this regard is profound, as it explicitly references the ILC Draft Articles in its pronouncement of the laws governing reparation as a legal outcome of State Responsibility.

The unsound application of the “Damage” theory

The International Law Commission (ILC) has taken a nuanced approach to the concept of “damage” in the context of State Responsibility. According to the ILC, “damage” is not considered a separate and independent element that triggers State Responsibility. Instead, the notion of damage is seen as being embedded within the primary rules of international law, which define the obligations of States and the conditions under which these obligations are breached.

Special Rapporteur Roberto Ago, who played a pivotal role in the development of the ILC’s Draft Articles on State Responsibility, argued that the requirement of damage is implicit in the breach of the primary rule itself. In other words, when a State commits an act that breaches its international obligations, the damage is presumed to be part of that breach.

The Draft Code of 2001, which was prepared by the ILC, reflects this perspective by not listing damage as a standalone element of State Responsibility. This implies that the occurrence of damage is not a separate factor that needs to be proven in addition to the breach of an international obligation.

However, there is a viewpoint that challenges the ILC’s stance, suggesting that the requirement of damage should be considered as part of the secondary rules of State Responsibility. These secondary rules pertain to the consequences of a breach of an international obligation, including the implementation and redress of such breaches through diplomatic or judicial means.

According to this perspective, a State’s conduct is prohibited primarily because it has the potential to cause damage to other States. Therefore, a State becomes responsible to another State only if the latter suffers damage as a result of the former’s prohibited act. This view posits that the mere failure to fulfill an international obligation is necessary but not sufficient to establish State Responsibility for international delicts (wrongs). An additional condition, namely the actual damage suffered by the claiming State, is required to forge a direct link of responsibility between the acting State and the claiming State.

In essence, while the ILC’s Draft Articles do not treat damage as a separate element, there is a legal argument that damage should be considered a critical factor in the context of secondary rules, which address the consequences and redress of internationally wrongful acts¹. This debate reflects the complexity and evolving nature of international law concerning State Responsibility.