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Domestic Courts and the Content and Implementation of State Responsibility

Published online by Cambridge University Press:  31 July 2013

STEPHAN WITTICH
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Abstract

This article examines the role of domestic courts in addressing questions of international law concerning the content and implementation of state responsibility. Practice shows that domestic courts only play a limited role in developing the international law of state responsibility. This is partly due to the limited number of cases decided by domestic courts. Furthermore, the practice of domestic courts is quite disparate, reducing their value in generating consistent practice. There is also a general inclination of domestic courts to apply remedies under municipal rather than international law, which reduces their significance as agents of international law. It is only in exceptional cases that domestic courts may contribute to clarifying controversial norms and support the further development of international law. Domestic courts may furthermore take on the task of fine-tuning international norms on state responsibility. Probably the most important role domestic courts may play in applying secondary rules of state responsibility is that of strengthening the effectiveness of the international legal system and its individual rules.

Keywords

domestic courtsstate responsibilityreparationinvocationjudicial practice
Type
INTERNATIONAL LAW AND PRACTICE: Symposium on Domestic Courts as Agents of Development of International Law
Information
Leiden Journal of International Law , Volume 26 , Issue 3 , September 2013 , pp. 643 - 665
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013 

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References

1 S. Olleson, ‘Internationally Wrongful Acts in the Domestic Courts: The Contribution of Domestic Courts to the Development of Customary International Law Relating to the Engagement of International Responsibility’, in this issue.

2 See also Nollkaemper, A., ‘Internationally Wrongful Acts in Domestic Courts’, (2007) 101 AJIL 760Google Scholar, at 772.

3 See most recently Jurisdictional Immunities of the State (Germany v. Italy), Judgment of 2 February 2012, [2012] International Court of Justice.

4 Nollkaemper, A., National Courts and the International Rule of Law (2011), 97CrossRefGoogle Scholar.

5 See A. Tzanakopoulos, ‘Domestic Courts in International Law: The International Judicial Function of National Courts’, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1861067, 4–7.

6 See Nollkaemper, supra note 4, at 95–7 (with regard to standing concerning inter-state claims in domestic courts).

7 International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts, (2001) UN Doc. A/56/10.

8 See Nollkaemper, supra note 4, at 91–116 (with regard to questions of standing) and 166–216 (with regard to questions of reparation).

9 Preliminary Commentary, para. 5 (emphasis added).

10 See the commentary to Art. 1, para. 5: ‘Thus the term “international responsibility” in article 1 covers the relations which arise under international law from the internationally wrongful act of a State, whether such relations are limited to the wrongdoing State and one injured State or whether they extent also to other States or indeed to other subjects of international law’. Similarly the commentary to Art. 12, para. 12, stating that ‘there is a single regime of State responsibility’.

11 This is, for example, expressed in the above-mentioned commentary to Art. 12, which provides that ‘[a]s far as the origin of the obligation breached is concerned, there is a single general regime of State responsibility’.

12 See ILC Articles, supra note 7, Art. 33(1).

13 Ibid., Art. 33(2).

14 Douglas, Z., The International Law of Investment Claims (2009) 97CrossRefGoogle Scholar; Douglas, Z., ‘Specific Regimes of Responsibility: Investment Treaty Arbitration’, in Crawford, J., Pellet, A., and Olleson, S. (eds.), The Law of International Responsibility (2010), at 815–820Google Scholar.

15 Art. 28 reads: ‘Legal consequences of an internationally wrongful act. The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of Part One involves legal consequences as set out in this Part.’

16 Commentary to Art. 28, para. 3 (emphasis in the original).

17 Introductory Commentary to Part Two, Chapter 1, para. 1 in fine.

18 ILC Articles, supra note 7, Part 3.

19 Ibid., Art. 48.

20 Commentary to Art. 33, para. 4.

21 Ibid.

22 Ripinsky, S. and Williams, K., Damages in International Investment Law (2008)Google Scholar, at 30.

23 35 Citizens of the Former Federal Republic of Yugoslavia v. Germany, 2 December 2006, BGHZ 166, 385, ILDC 887 (DE 2006). See ILDC 887, decision – full text, para. 13.

24 Introductory commentary to Part Three, para. 1: ‘The rights that other persons or entities may have arising from a breach of an international obligation are preserved by article 33(2).’

25 See supra note 20, para. 4.

26 Ibid. (emphasis added).

27 Commentary to Art. 36, para. 6. Examples include cases from the Iran–US Claims Tribunal, human rights courts and ICSID tribunals.

28 Ibid.

29 See only the survey in S. Olleson, The Impact of the ILC's Articles on Responsibility of States for Internationally Wrongful Acts – Preliminary Report, British Institute of International and Comparative Law (2007), available at http://www.biicl.org/files/3107_impactofthearticlesonstate_responsibilitypreliminarydraftfinal.pdf.

30 In Wintershall Aktiengesellschaft v. Argentina, where the tribunal stated that the ILC Articles did not contain rules and regulations of state responsibility vis-à-vis non-state actors. Wintershall Aktiengesellschaft v. Argentine Republic (ICSID Case No. ARB/04/14), Award of 8 November 2008, para. 113.

31 See, for example, the references in Olleson, supra note 29, at 213–36.

32 See Ripinski and Williams, supra note 22, at 30. This is, to be sure, not to say that the domestic court may not adapt the relevant rules to the needs of the individual case. This is already called for by the generally indeterminate content of these rules. See also Nollkaemper, supra note 4, at 193.

33 For a detailed discussion of the problems involved see ibid., 185–97.

34 Crawford, J., ‘The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’, (2002) 96 AJIL 874, at 890CrossRefGoogle Scholar.

35 Even if this ‘transfer’, ‘reception’, or ‘incorporation’ only consists in a general ‘command’ of domestic law that international law or specific rules, such as those of customary international law, are part of domestic law and thus applicable. See, for instance, Conforti, B., International Law and the Role of Domestic Legal Systems (1993), 3Google Scholar.

36 See Higgins, R., ‘The International Court of Justice: Selected Issues of State Responsibility’, in Ragazzi, M. (ed.), International Responsibility Today (2005) 271Google Scholar, at 277–8; R. Higgins, ‘Overview of Part Two of the Articles on State Responsibility’, in Crawford, Pellet, and Olleson, supra note 14 at 537.

37 LaGrand (Germany v. United States), Judgment of 27 June 2001, [2001] ICJ Reports 466, at 489, para. 63.

38 Sanchez-Llamas v. Oregon, Supreme Court Judgment, 548 US 331; ILDC 697 (US 2006), paras. 19–35.

39 Italia Nostra v. Ministry of Cultural Heritage and Libyan Arab Jamahiriya, Appeal Judgment, [2008] Case No. 3154/2008; ILDC 1138 (IT 2008).

40 It could also be the case that the Council considered the obligation of restitution in case of peremptory norms as a specific consequence of a violation of such norms. However, since it did not refer to that concept, or to Article 42 of the ILC Articles, this is unclear.

41 Occidental Exploration and Production Company v. Ecuador, [2006] EWHC 345 (Comm); ILDC 379 (UK 2006), para. 122.

42 See ILC Articles, supra note 7, Art. 36.

43 Ibid. See also Higgins, supra, note 36, at 539.

44 See Nollkaemper, supra note 4, at 167.

45 Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at para. 57; see also the Canadian Federal Court, which took the view that principles of international law are helpful where it is necessary to fashion an appropriate remedy under municipal law. Abdelrazik v. Minister of Foreign Affairs and Attorney General of Canada, First Instance Judgment, 2009 FC 580; ILDC 1332 (CA 2009), para. 159.

46 Fujimori Case, First Instance Decision, EXP Number AV 19–2001; ILDC 1516 (PE 2009), para. 801. The Court primarily invoked the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, UN Doc. A/RES/60/147 (Dec. 16, 2005).

47 The ILC Articles are somewhat unclear on this point. On the one hand, Article 36(1) would indicate a preference for restitution over compensation, as it provides that the responsible state is obliged to compensate, ‘insofar as such damage is not made good by restitution’. This is confirmed by the commentary, which states that, in relation to compensation, restitution enjoys ‘primacy as a matter of legal principle’ (commentary to Article 36, para 3). On the other hand, the commentary points out that ‘in most circumstances the injured State is entitled to elect to receive compensation rather than restitution’ (commentary to Article 34) and refers to Article 43(2)(b) as containing such a right of election (see also commentary to Article 43(6)). For a general discussion see Y. Kerbrat, ‘Interaction between the Forms of Reparation’, in Crawford, Pellet, and Olleson, supra note 14 573; and C. Gray, ‘The Different Forms of Reparation: Restitution’, in ibid., 589, at 593.

48 Abdelrazik v. Minister of Foreign Affairs and Attorney General of Canada, [2010] 1 FCR. 267.

49 Chorzow Factory Case (Germany v. Poland), (1928) PCIJ., Sr. A, No. 17, at 47.

50 See Abdelrazik, supra note 48, paras. 158–159.

51 United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir.) 1991.

52 Ibid.

53 Ibid., 504 U.S. 655; 112 S.Ct. 2188 (15 June 1992).

54 Which the Supreme Court, in a very narrow reading, denied. For a critical analysis of this approach see Smith, D. C., ‘Beyond Indeterminacy and Self-Contradiction in Law: Transnational Abductions and Treaty Interpretation in U.S. v. Alvarez-Machain, (1995) 6 EJIL 1CrossRefGoogle Scholar.

55 See only American Law Institute, Restatement of the Law Third: The Foreign Relations Law of the United States, Vol 1, Section 433, para 2. See also Semmelman, J., ‘Case Note on Alvarez-Machain v USA’, (1992) 86 AJIL 811, 817–19CrossRefGoogle Scholar; Semmelman, J. ‘Due Process, International Law, and Jurisdiction over Criminal Defendants Abducted Extraterritorially: The Ker-Frisbie Doctrine Reexamined’, Columbia Journal of Transnational Law 30 (1992) 513Google Scholar; Baker, B. and Röben, V., ‘To Abduct or to Extradite: Does a Treaty Beg the Question?’, (1993) 53 ZaöRV 657, 675Google Scholar.

56 Semmelman, supra note 55 at 815. Interestingly, the Supreme Court, after conceding that abduction ‘may be in violation of general international law principles’, stated in a dictum that, even if that were the case, ‘the decision of whether respondent should be returned to Mexico, as a matter outside of the Treaty, is a matter for the Executive Branch’. Alvarez-Machain, supra, note 53, at 2196.

57 See Nollkaemper, supra note 4, at 199; and Dolzer, R. and Schreuer, C., Principles of International Investment Law (2012), 294.CrossRefGoogle Scholar

58 For a more detailed discussion see Nollkaemper, supra, note 4, at 197–206.

59 Treaty on the Re-Establishment of an Independent and Sovereign Austria, [1955] 217 UNTS 223.

60 Unfortunately, however, the Court did not disclose the material it had examined, nor did it state which practice formed the basis of its comparison. Thus it is impossible to assess the correctness of the Court's approach to determine the relevant international practice.

61 Decision V 91/99, Austrian Constitutional Court, 4 October 2000, in Wittich, S.et al., ‘Austrian Judicial Decisions Involving Questions of International Law’, (2001) 6 Austrian Review of International and European Law, 281Google Scholar, at 317 and 325–6.

62 See Nollkaemper, supra note 4, at 200–4.

63 See e.g., The State of the Netherlands v. J.L., Supreme Court of the Netherlands, 31 October 2003, (2005) 36 NYIL 504, 506; Nollkaemper, supra, note 4, at 211–13.

64 Kuwait Airways Corporation v. Iraqi Airways Co. (Nos. 4 and 5), [2002] UKHL 19; [2002] 2 AC 883, paras 29, 117 (per Lord Steyn).

65 A (FC) and Others (FC) v. Secretary of State for the Home Department, A and Others (FC) v. Secretary of State for the Home Department (Joined Appeals), Appeal Judgment, (2005) UKHL 71; ILDC 363 (UK 2005), para. 34 (per Lord Bingham of Cornhill).

66 Ibid.

67 R (On the Application of Al Rawi and Others) v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department, Supreme Court of Judicature, Queen's Bench Division, Divisional Court, 4 May 2006, [2006] HRLR 30; [2006] EWHC 972 QBD (Admin), para. 69 (per Lord Justice Latham).

68 Ibid., at para. 70.

69 McKesson HBOC Inc. v. Islamic Republic of Iran, 271 F.3d 1101 (D.C. Cir. 2001), reprinted in (2002) 41 ILM 438.

70 The Iran–US Claims Tribunal dismissed the claim for expropriation since, at the jurisdictional cut-off date, Iran's interference with McKesson's rights had not amounted to an expropriation. It awarded, however, damages for two unpaid cash dividends. Foremost Tehran, Inc. v. Iran, 10 April 1986, Iran–US CTR 10 (1986-I) 228.

71 See McKesson, supra note 69, at 45.

72 M. Whiteman, Damages in International Law, Vol. 3 (1943), 1997.

73 Ibid., at 48.

74 Kuwait v. Aminoil, (1982) 21 ILM 976, 1042; Compania del Desarrollo de Santa Elena, S. A. v. Republic of Costa Rica, (2000) 39 ILM 1317, 1332–4.

75 G. Arangio-Ruiz, ‘Second Report on State Responsibility’, YILC 1989 (II-1) 1, at 30.

76 See Ripinsky and Williams, supra note 22, at 382; McKesson, 116 F. Supp. 2d 13, at 47.

77 Norwegian Shipowners Case (Norway v. USA), Award of 13 October 1922, 1 RIAA 307, 341.

78 Thus it cannot be taken from the tribunal's reasoning that the tribunal considered compound interest as a remedy generally unavailable in international law; rather it seems that the tribunal confined itself to stating that the present case (arg. ‘in this case’), especially the facts of the case, did not warrant an award of compound interest, without, however, prejudging the question as to the status of compound interest more generally.

79 See, e.g., Antoine Fabiani Case (France v. Venezuela), Award of 31 July 1905, 10 RIAA 83, 89 and 93; Affaire des chemins de fer Zeltweg-Wolfsberg et Unterdrauburg-Woellan (Austria v. Yugoslavia), Award of 12 May 1934, 3 RIAA 1786, 1808.

80 See, e.g., RJ Reynolds Tobacco v. Iran; 7 Iran–US CT (1984) 181,191; Sylvana Technical Systems Inc. v. Iran, 8 Iran–US CT (1985) 298, 320; Anaconda-Iran Inc. v. Iran, 13 Iran–US CT (1988) 199, 234–5, paras. 138–142; Starrett Housing Corp. v. Iran, 16 Iran–US CT (1987) 112, 234–5, para. 370.

81 Commentary to Art. 38, para. 8.

82 Ibid., para. 9. This appears to paraphrase what Mann wrote on the topic a few years earlier: ‘compound interest may be and, in the absence of special circumstances, should be awarded to the claimant as damages by international tribunals’. Mann, F. A., ‘Compound Interest as an Item of Damage’, in Mann, F. A., Further Studies in International Law (1990) 377Google Scholar, 385.

83 See generally Ripinsky and Williams, supra note 22, at 383–4; Marboe, I., Calculation of Compensation and Damages in International Investment Law (2009), 6.216–6.224CrossRefGoogle Scholar.

84 See the numerous references to investor-state arbitration in Ripinski and Williams, supra, note 22, at 384–387, and Marboe, at 6.225–6.236; E. Lauterpacht and P. Neville, ‘The Different Forms of Reparation: Interest’, in Crawford, Pellet, and Olleson, supra note 14 613, 620 (especially in n. 29).

85 See McKesson, supra note 69, at 444.

86 Ibid.

87 See Kuwait v. Aminoil, supra note 74; Compania Desarrollo, supra note 74.

88 J. Crawford, Third report on State responsibility, YILC 2000, Vol. II pt. 1, 3, at 60, para. 211. The statement there was later incorporated into the commentary; see above.

89 See McKesson, supra note 69, at 445.

90 See Lauterpacht and Neville, supra note 84, at 618.

91 See Mann, supra, note 82, at 381.

92 As will be seen below, the fact that a treaty is self-executing is generally a requirement for providing standing to individuals in domestic courts, but of course not in itself sufficient.

93 See McKesson, supra note 69, at 441.

94 Ibid.

95 Ibid., at 442.

96 The ‘guidelines’ for such determination no doubt are to be found in Article 31 of the Vienna Convention on the Law of Treaties.

97 See LaGrand, supra note 37, at 466 and 494, para. 77.

98 Ibid., at 466 and 494, para. 77. See also Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, 12, 35–6 paras. 40–41. The Court referred to invocation of this right in proceedings before itself and left open the question as to the self-executing character of this norm. However, given the fact that the self-executing character of the norm is one attaching to it under international law, the answer to this question would be the same.

99 Jogi v. Voges and Others, 480 F.3d 822 (7th Cir 2007), ILDC 808 (US 2007). In fact, the court of appeals stated that ‘it is undisputed that the Convention is self-executing, meaning that legislative action was not necessary before it could be enforced’. Ibid., para. 21. Given the fact that the Court's discussion focused on Art. 36, it is doubtful whether it really meant that the Vienna Convention on Consular Relations was self-executing in its entirety.

100 Ibid., para. 35.

101 Ibid., para. 36.

102 McKesson Corporation et al., Appellees v. Islamic Republic of Iran, Appellant, 593 F.3d 485 (D.C. 2008) 2008 U.S. App. LEXIS 18163. This de novo review was due to a change in the position of the US government. In light of this, the Court of Appeals vacated ‘the portion of [its earlier decision] addressing whether the Treaty of Amity . . . provides a cause of action to a United States national against Iran in a United States court’, and instructed the district court ‘to re-examine that issue in light of the representation of the United States that it does not interpret the Treaty of Amity to create such a cause of action’. The district court reaffirmed the existence of a cause of action, and this issue again came before the Court of Appeal. See McKesson HBOC, Inc. v. Islamic Republic of Iran, 320 F.3d 250, 281 (C.C. Cir. 2003).

103 See Alvarez-Machain, supra, note 51, at 663.

104 The Court quoted from American Law Institute (ed.), Restatement (Third) of Foreign Relations Law of the United States (1986), Section 111, commentary (h).

105 Ibid., Section 907, commentary (a).

106 See McKesson, supra note 102, at 9. The Court of Appeal again quoted from the Supreme Court, this time from the case of the Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 442 (1989).

107 Convention for the Unification of Certain Rules Relating to International Carriage by Air, 137 LNTS 11.

108 Similarly critical, Nollkaemper, supra note 4, at 102.

109 See Wittich, S., ‘Domestic Implementation and the Unity of International Law’, in Zimmermann, A. and Hofmann, R. (eds.), Unity and Diversity in International Law (2006), 345, 357–62Google Scholar.

110 Decision No. 1 Ob 149/02x, Austrian Supreme Court, 30 September 2002, in Wittich, S. and Schoiswohl, M., ‘Austrian Judicial Decisions Involving Questions of International Law’, (2002) 7 Austrian Review of International and European Law 257, 285–7Google Scholar. A number of questions in this case were also in dispute in an earlier decision to which the Supreme Court referred, Decision No. 1 Ob 219/01i, Austrian Supreme Court, 22 October 2001, in ibid., 273.

111 Legal Successors of KT and KS v. Slovenia, I Up 462/2000, Supreme Court, ILDC 1086 (SI 2002), para. 8.

112 See 35 Citizens, supra note 23, para. 10.

113 Ibid., paras. 11–12.

114 Presidency of the Council of Ministers v. Marcovic and Others, Italy, Court of Cassation, ILDC 293 (IT 2002), para. 3 of the decision.

115 See, e.g., Tomuschat, C., ‘Darfur: Compensation for the Victims’, (2005) 3 Journal of International Criminal Justice 579CrossRefGoogle Scholar.

116 South West Africa (Second Phase), Ethiopia/Liberia v. South Africa, 18 July 1966, ICJ Rep. [1966] 6, at 34, para. 48.

117 See McKesson, supra note 102.

118 See 35 Citizens, supra note 23, at para. 16. The German word used was Aktivlegitimation.

119 Decision No. 1 Ob 219/01i 276.

120 Presidency of the Council of Ministers v. Markovic, para. 3. (‘norme espresse che consentano alle persone offese di chiedere . . . riparazione dei danni loro derivati’).

121 See Decision No. 1 Ob 219/01i, supra, note 110, at 276 (‘Geltendmachung eines unmittelbaren Ersatzanspruches’).

122 See 35 Citizens, supra note 23, para. 8. Most likely the Court here distinguished between the concept of diplomatic protection and that of human rights protection when it referred to violations of international law against foreign nationals. As mentioned earlier, the Court, however, was mistaken in invoking Art. 42 of the ILC Articles as confirming the lack of standing of individuals under the Geneva Protocols.