State Responsibility: The General Law
Chapter Sixty-Seven
Syllabus topic 3, "International Concern for Environment Protection"
Pages 200 to 202 of 663
In one line
Every internationally wrongful act of a State entails its international responsibility, and an act is wrongful when conduct attributable to the State breaches an obligation binding on it.
In exam wording: under the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts 2001, article 1 provides that every internationally wrongful act of a State entails its international responsibility; article 2 provides that there is an internationally wrongful act when conduct consisting of an action or omission is attributable to the State under international law and constitutes a breach of an international obligation of the State; and article 3 provides that the characterisation of an act as internationally wrongful is governed by international law and is not affected by its characterisation as lawful by internal law.
What the Articles are, and are not
They are not a treaty. They are draft articles adopted by the International Law Commission in 2001 and commended to governments by the General Assembly, which has repeatedly deferred the question of a convention. They are cited constantly by the International Court of Justice and by arbitral tribunals as a statement of customary law, and they fall within Article 38, paragraph 1(d), of the Statute of the Court as the teachings of the most highly qualified publicists. A candidate who calls them a treaty has made an error.
The two elements
Article 2 gives the whole of the law in one sentence. There is an internationally wrongful act when conduct:
- is attributable to the State under international law, and
- constitutes a breach of an international obligation of the State.
Everything else is detail about those two.
Article 3 adds that internal law is irrelevant to the characterisation, which is the same idea as Article 27 of the Vienna Convention on the Law of Treaties seen from the other side.
Attribution: articles 4 to 11
This is the half that causes the difficulty in environmental cases, because the polluter is usually a company.
- Article 4: the conduct of any State organ is attributable, whatever its function, whatever its position in the organisation of the State, and whether it belongs to the central government or to a territorial unit. That last clause is the answer to the federalism question: the conduct of a State of India is attributable to India.
- Article 5: the conduct of a person or entity empowered by the law of the State to exercise elements of governmental authority is attributable when it acts in that capacity. A statutory pollution control board is within it.
- Article 6: an organ placed at the disposal of a State by another State.
- Article 7: conduct in excess of authority or contrary to instructions is still attributable, if the organ acts in that capacity. An inspector who takes a bribe still acts as an inspector.
- Article 8: the conduct of a person or group is attributable if they act on the instructions of, or under the direction or control of, the State. This is the article a claimant would need against a private polluter, and it is very hard to satisfy: a licensed company is not acting under the State's direction or control.
- Article 9: conduct in the absence or default of official authorities.
- Article 10: the conduct of an insurrectional movement that becomes the new government.
- Article 11: conduct acknowledged and adopted by the State as its own.
State Responsibility: The General Law
The consequence for this subject. A State is not responsible for what a private company does on its territory. It is responsible for its own failure to regulate, supervise and control, which is why the customary rule is a due diligence obligation and not a guarantee.
Breach: articles 12 to 15
- Article 12: there is a breach when an act is not in conformity with what is required by the obligation, regardless of its origin or character. Treaty and custom are treated alike.
- Article 13: an act does not breach an obligation unless the State is bound by it at the time the act occurs. This is the intertemporal rule, and it is the strongest legal answer to a claim for historical emissions, because the obligation did not exist when most of the carbon was emitted.
- Article 14: the extension in time of a breach. A breach not having a continuing character occurs at the moment the act is performed; a breach having a continuing character extends over the whole period during which the act continues and remains not in conformity; and a breach of an obligation to prevent occurs when the event occurs and extends over the whole period during which the event continues.
- Article 15: a composite act, a series of actions or omissions defined in aggregate as wrongful, which is the article most nearly fitted to cumulative pollution.
Articles 14 and 15 are the two that a climate claim would have to be built on, and saying so is a strong point in an answer.
Worked example
A private smelter in State Y emits sulphur dioxide that damages crops in State Z.
- Is the smelter's conduct attributable to Y? No, on articles 4 to 11. It is a private company acting on its own account.
- Then how can Y be responsible? Because Y's own obligation is to use due diligence to ensure that activities within its jurisdiction and control do not damage the environment of other States. Y's conduct, the licensing, the standard-setting, the inspection, is what is attributable.
- Which article characterises the breach? Article 14, paragraph 3: a breach of an obligation to prevent a given event occurs when the event occurs and extends over the whole period during which the event continues and remains not in conformity with the obligation.
- What must Z prove? That the obligation bound Y at the time (article 13); that Y's regulatory conduct fell below due diligence; that the harm was significant; and causation, to the Trail Smelter standard of clear and convincing evidence.
State Responsibility: The General Law
That is the full structure of a transboundary environmental claim, and every element of it is in this chapter.
What it does NOT mean
It does not mean fault must be proved. The Articles are neutral on fault; whether fault is required depends on the primary obligation. Where the primary rule is due diligence, something very like fault is built into it.
It does not mean damage must be proved. Article 2 requires attribution and breach, not damage. Pulp Mills is the proof: a procedural breach with no damage, and a declaration as the remedy.
It does not reach private polluters. International responsibility is State responsibility. Reaching the company is the subject of MU's topic 7 and of national law.
Quick revision
- Not a treaty; draft articles of 2001, cited as custom.
- Article 1: every internationally wrongful act entails responsibility. Article 2: attribution plus breach. Article 3: internal law is irrelevant.
- Articles 4 to 11 on attribution; article 4 makes the conduct of a constituent unit of a federation attributable to the State.
- Article 8 rarely reaches a private polluter; the State's responsibility is for its own failure of due diligence.
- Article 13, the intertemporal rule; article 14, continuing breaches and breaches of prevention; article 15, composite acts.
- Damage is not an element of the wrongful act.
Test yourself
1. State the two elements of an internationally wrongful act and the article that gives them. Conduct attributable to the State under international law, and a breach of an international obligation of the State. Article 2.
2. Why is a State not automatically responsible for a private company's pollution? Because the company's conduct is not attributable to it under articles 4 to 11 unless it acts on the State's instructions, direction or control. What is attributable is the State's own regulatory conduct, judged by due diligence.
3. Which article is the strongest objection to a claim for historical emissions? Article 13: an act does not constitute a breach unless the State is bound by the obligation at the time the act occurs.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.