Public International Law Content
Invocation of State Responsibility
Central to international law is the mechanism for holding states accountable for their internationally wrongful acts. The Articles rightly define ‘invocation’ narrowly – that is, as the commencement of proceedings before an international court or tribunal. This ensures that states do not have to show standing for protests or similar expressions of opinio Juris.
The Injured State
A state is entitled as an ‘injured state’ to invoke the responsibility of another state if the obligation breached is owed to
(a) that state individually; or
(b) a group of states including that state and the breach
(i) specially aff ects that state; or
(ii) radically changes the position of all the other states to which the obligation is owed with respect to the further performance of the obligation (Article 42 of the Articles).
This formulation follows Article 60 of the Vienna Convention on the Law of Treaties, and similar considerations apply.
An example of sub-paragraph (b)(ii) would be one state claiming sovereignty over an unclaimed area of Antarctica contrary to the Antarctic Treaty. The position of all parties to the Treaty would be radically changed.
An injured state loses the right to invoke responsibility if it has explicitly waived the claim or, by reason of its delay, it can be inferred that it validly acquiesced in the claim’s lapse (Article 45).154 In the Boeing case,the Iran-United States Claims Tribunal imputed acquiescence to Iran for its three-year delay in bringing a claim against Boeing, given that it had ‘ample opportunity’ to bring such a claim if it had so desired.
Conversely, in LaGrand Germany brought its claim on the eve of the execution of its second national on death row, more than 15 years after the United States’ breaches commenced. Thus, both humanitarian considerations and the behavior of the parties have a bearing on acquiescence.
The Non-injured State
A ‘non-injured state’ may invoke responsibility, where the obligation breached, is owed to
(a) a group of states including that state, and is established for a collective interest of the group (such as collective defence), or
(b) the international community as a whole (Article 48(1) of the Articles).
Article 48(1)(b) refl ects the principle that erga omnes obligations, including but not limited to jus cogens norms, can be invoked by any state.
In such a case, a non-injured state can seek cessation and assurances and guarantees of non-repetition.
Under the Articles, where a state commits a serious (that is gross or systematic) breach of jus cogens, all states have a duty to cooperate to end the breach through lawful means. This duty is admittedly a progressive development.The other consequence is that states shall not recognize as lawful a situation created by such a breach, nor render aid or assistance in maintaining that situation. In the Israeli Wall case, the ICJ declared:
Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall . . . They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.
Plurality of Injured or Responsible States
Where several states are injured by the same wrongful act, each may separately invoke responsibility. Similarly, where several states are responsible for the same internationally wrongful act, the responsibility of each
may be invoked. This rule does not apply where states commit different wrongful acts causing the injury, such as where one state aids or assists another to commit a wrongful act. An important procedural rule is that responsibility cannot be invoked if a necessary step in the claim is a finding of a wrongful act by a non-party to the proceedings. In the East Timor case, Australia acquired certain East Timorese submarine resources under a treaty with Indonesia. Portugal claimed that Australia had breached its erga omnes obligation not to infringe the East Timorese people’s right to self-determination. The Court dismissed the claim, as it would have had to pronounce on the lawfulness
of Indonesia’s claim to East Timor.