1. Introduction
The ILC ARSIWA codified rules applicable to violations of the international obligations of states, including the obligation that states shall not perpetrate acts prohibited by international law, as well as positive human rights obligations (positive obligations).Footnote 2 The notion of positive obligations refers to obligations that a state has to adopt measures or take deliberate actions to ensure that human rights are respected, protected and promoted.Footnote 3
According to a compilation published by the UN Secretariat in 2017 on the use of ARSIWA by diverse international courts and bodies,Footnote 4 references to ARSIWA have increased notably from 2001 to 2016,Footnote 5 and regional human rights courts are increasingly referring to them. The document surveyed the decisions of international courts, tribunals, and other bodies and found that 47 references were made in ECtHR cases, 18 by the ICJ, 12 by the Inter-American Court of Human Rights (IACtHR), and one by the Human Rights Council (HRC). In addition, from a total of 202 references in opinions, 102 were made by the ICJ, 70 were made by the ECtHR, and 13 by the IACtHR.
This report, read in conjunction with previous similar compilations,Footnote 6 indicates an increase in the number of references to the ARSIWA by many courts and bodies, including the ECtHR. However, this increase comes accompanied by other relevant trends in the Strasbourg Court: a broad interpretation of many ECHR rights as giving rise to positive obligations as the Court avoids the application of some ARSIWA provisions, and the departure from some of the ARSIWA principles.
This article explores these trends, turning to ICJ case law for guidance. It argues that the ICJ can play a role in advancing towards more judicial integration on state responsibility by clarifying certain ARSIWA provisions as they relate to positive obligations, and that this would ultimately contribute to greater protection of human rights. As Jägers observes, ‘the law of state responsibility offers an interesting, yet underutilized tool for addressing human rights violations’.Footnote 7 According to Simma, ‘it is a fact that the preparedness of states to bring “pure”, genuine human rights scenarios before the Court has always been extremely limited, and it is fair to assume that this will remain the case’.Footnote 8 Nevertheless, there is potential for a greater contribution by the Court to deepen judicial integration on the approach to state responsibility in human rights courts. ‘[T]he bringing of inter-state disputes directly under compromissory clauses of human rights instruments, namely, the Genocide Convention, the CERD and the Convention against Torture is a recent development’ which has led the Court to ‘face human rights issues squarely where it has claimed jurisdiction’.Footnote 9
The article is structured in three sections. Section 2 focuses on the ECtHR trend of interpreting broadly certain rights contained in the ECHR as giving rise to positive human rights obligations, avoiding the use of certain ARSIWA provisions. Section 3 looks at some examples in which the ECtHR has departed from the international regime of state responsibility. Section 4 looks at ICJ case law relevant to this research, and identifies areas in which the ICJ could provide further clarification.
2. A broad interpretation of ECHR rights giving rise to positive obligations
The notion of positive obligations has been developed by human rights courts and UN monitoring bodies. The Committee on Economic, Social and Cultural Rights (CESCR), for example, has contributed to their definition through its general comments. General Comment 3 on the Nature of States Parties’ Obligations talks about the obligation of states parties ‘to take steps’ towards the realization of a right, recognizing legislative measures, the provision of judicial or other effective remedies, administrative, financial, educational and social measures.Footnote 10 In its comment on Article 12 of the International Covenant on Economic, Social and Cultural Rights, although not referring explicitly to positive obligations, the Committee discussed the obligations to protect and fulfil the right to adequate food.Footnote 11 Other UN monitoring bodies have also defined positive obligations in their work under the individual complaints procedure.Footnote 12
In order to understand the concept of positive human rights obligations, the case law of the ECtHR is particularly relevant. Although the Court has not provided an authoritative definition of positive obligationsFootnote 13 and the boundaries between positive and negative obligations are not always precisely defined, it has interpreted express positive obligations and developed implied positive obligations related to the prohibition of torture, the right to a fair trial, the right to an effective remedy and freedom of expression, shedding light on what can be considered a positive obligation.Footnote 14 In 1996, Judge Martens saw positive obligations as ‘requiring member states to … take action’.Footnote 15 While this definition may seem too general, it reflects the essence of the diverse duties that have been considered by the ECtHR under the category of positive obligations, inter alia, the obligation to protect vulnerable persons from serious ill-treatment,Footnote 16 the obligation to protect the rights of detainees,Footnote 17 the obligation to deploy reasonable police resources to protect media organizations from violent attacks to freedom of expression,Footnote 18 the obligation to secure children’s right to education,Footnote 19 or the obligation to preserve a cultural diversity of value to a whole community.Footnote 20 The idea behind positive obligations is that in order to ensure protection of certain rights ‘passive non-interference’ is not enough,Footnote 21 and the state may have a ‘duty to act in a particular way’.Footnote 22
As Feldman has noted, some positive obligations are imposed expressly by the language of the Convention, whereas an increasing number of positive obligations are considered by the Court to be implied in the ECHR.Footnote 23 During the first years of existence of the ECtHR, most positive obligations were express, whereas after the 1970s the development of implied positive obligations increased notably. This increase in the identification of positive duties for states can be associated with the idea of effectiveness, with the Court trying to develop the most effective system for states to protect the rights under the Convention.Footnote 24 Another interesting explanation of this evolution is that it responds to the needs of the Court,Footnote 25 as imposing on states the duty to conduct effective investigations reduced the Court’s burden to embark on expensive and time-consuming fact-finding missions.Footnote 26
This article takes as a working definition of positive obligations the obligations of a state to adopt measures or take deliberate action to ensure that human rights are respected, protected and promoted. This includes obligations to guarantee the rights of individuals, to prevent private actors from breaching the rights of others, to protect victims, to ensure the basic needs of the most vulnerable members of society, and to prosecute and punish perpetrators. Those obligations are normally fulfilled by legislating, enforcing legislation, adopting policy measures, providing public services, and monitoring private actors’ compliance with existing legislation.
2.1 The trend
One of the trends observed in recent literature on the ECtHR’s use of the ARSIWA is that the Court has broadly interpreted many ECHR rights as giving rise to positive obligations, perhaps as an alternative to directly engaging with certain secondary rules in the ARSIWA. As Crawford, KeeneFootnote 27 and BoonFootnote 28 have indicated, the difficulties in the application of certain ARSIWA rules, especially Article 8 ARSIWA, seem to have led to that broad interpretation of certain rights.
Under Article 8 ARSIWA:
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.
The interpretation of this provision, the customary nature of which remains controversial,Footnote 29 has been the focus of relevant ICJ decisions clarifying the rules for attribution in this context.Footnote 30 However, as analysed below, the case law of the ECtHR rarely engages with Article 8 ARSIWA. This could indicate that the application of the ‘effective control’ test still raises some challenges in practice.
This trend is particularly relevant given the increase in the privatization of certain official functions in areas such as security and border control.Footnote 31 In that context, ‘control tests under prevailing doctrines of attribution present a “slippage” problem’ defined by Boon as the ‘decline of government control of functions traditionally associated with the state’,Footnote 32 which has created an accountability gap.Footnote 33 One of the techniques that has emerged in practice to overcome that gap is indeed recognizing responsibility of the state for failing to prevent. As Boon explains, ‘where the application of the stringent effective control test results in slippage, the duty to prevent has become a favoured strategy’.Footnote 34
In the Costello-Roberts caseFootnote 35 and more recently in the O’Keeffe case,Footnote 36 the ECtHR focused on defining the positive obligations of the United Kingdom and Ireland in the field of education and protection from mistreatment, but the Court did not discuss whether the respective acts were attributable to the state.Footnote 37 A similar approach was adopted in other cases.Footnote 38 As Crawford and Keene note, the same reasoning that could be used to support an attribution of ARSIWA in a case like Storck v. Germany Footnote 39 ‘is used to support a conclusion on positive obligations’.Footnote 40 In that case, the Court found that the actions of police officers constituting wrongful detention were ‘imputable’ to the state and established that Germany was in breach of its positive obligations under Articles 5 and 8 ECHR. It did not, however, rely on Article 4 ARSIWA, according to which the acts of police officers are attributable to the state as state organs. This would have allowed the Court to establish the responsibility of the state for wrongful detention. The trend seemed to have reverted with the Kotov v. Russia case,Footnote 41 where the ARSIWA were broadly mentioned. But in further cases the Court returned to the same approach, avoiding engaging with some key ARSIWA provisions.Footnote 42
This increasing reliance on positive obligations could represent a risk, as positive obligations are not always applied consistently. As an example, Mowbray calls for a more robust application of the effective investigation duty by the ECtHR under Article 3 ECHR.Footnote 43 It is therefore pertinent to examine how the ICJ has dealt with the issue.
2.2 The contribution of the ICJ
The ICJ, which has contributed greatly to the definition of the rules of attribution,Footnote 44 dealt in the Bosnia Genocide case Footnote 45 with a similar matter. Unlike the ECtHR in the O’Keeffe case,Footnote 46 the ICJ engaged with the attribution test and provided clarification on the limits of positive obligations. In this case, the ICJ found that Serbia violated its treaty obligation to prevent genocide in such a manner as to engage its international responsibility, although the commission of the crime was not attributable to the state. Footnote 47 The difference with the ECtHR cases mentioned above is that, although the ICJ judgment concluded that the crime was not attributable to the state, it did engage with the ARSIWA attribution test, whereas the ECtHR avoided dealing with the attribution question, in spite of the relevance it may have had for the final outcome of the cases. In its judgment, the ICJ looked separately at the duty to prevent genocide and the duty to punish its perpetrators as two separate yet connected obligations, emphasizing that the duty to prevent genocide has its own scope and should not be ‘merged in the duty to punish’, nor ‘be regarded as simply a component of that duty’. Footnote 48
Although in the judgment the ICJ clarifies that it does not ‘purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for states to prevent certain acts’, the judgment defines what constitutes a breach of the duty to prevent in the context of the case which can be helpful in the human rights sphere. The Court states that ‘a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being committed’, and that ‘a state may be found to have violated its obligation to prevent even though it had no certainty, at the time it should have acted, but failed to do so, that genocide was about to be committed or was under way’. Footnote 49
The Court also found that Serbia had violated its obligation to punish genocide under the Genocide Convention, engaging its international responsibility. Having examined whether the ICTY constituted an ‘international penal tribunal’ within the meaning of Article VI of the Convention, and whether it should be considered that Serbia had accepted the jurisdiction of such tribunal, the Court understood that Serbia had breached its duty to co-operate with the ICTY and thus was responsible for violating its obligation to punish genocide. Footnote 50
Another relevant case is the Congo v. Uganda case on ‘acts of armed aggression’ against the Democratic Republic of the Congo. Footnote 51 The Court engaged in the attribution test in order to determine if the conduct of the Uganda Peoples’ Defence Forces (UPDF) and of the officers and soldiers of the UPDF was attributable to Uganda. Having given a positive answer to that question, the Court found that Uganda was ‘internationally responsible for violations of international human rights law … committed by the UPDF and by its members in the territory of the DRC’ as well as for failure to prevent violations of human rights by the UPDF.Footnote 52
3. Departing from the ARSIWA principles
Closely linked to the phenmenon analysed in Section 2, a second trend identified by Crawford and Keene in ECtHR case law is the ‘explicit departures from the general principles on state responsibility in special cases’.Footnote 53 Motoc and Vasel argue that the ECtHR is advancing towards a higher degree of judicial integration in this area.Footnote 54 If the intention of the Strasbourg Court is indeed to advance towards more judicial integration, one possible justification of such departure from the ARSIWA principles could be the difficulties in applying some of them. This Section explores the issue.
3.1 The trend
In Behrami and Saramati,Footnote 55 the ECtHR applied an ‘ultimate authority’ test not founded in Article 6 ARSIWA, which establishes the rule for attribution of conduct of organs placed at the disposal of a state by another state.Footnote 56 In El-Masri v. The Former Yugoslav Republic of Macedonia, the Court departed from the content of Article 16 ARSIWA, which establishes the responsibility of a state for aiding or assisting another state in the commission of an internationally wrongful act. In this case, the Court expanded the responsibility of Macedonia by departing from Article 16 ARSIWA. It developed a new ‘acquiescence or connivance’ rule to hold a third state responsible for the acts of another state on its territory, going beyond what ARSIWA provides.Footnote 57 In other cases, the ECtHR has mixed the concepts of jurisdiction and attribution in a way that is not consistent with the ARSIWA principles.Footnote 58
Despite this apparent departure from the ARSIWA principles, for Motoc and Vasel, ‘the EC[t]HR neither can nor intends to escape’ the general international law framework, and convergence remains a question of ‘how to align the EC[t]HR with, and integrate it into, the omnipresent realm of international law’.Footnote 59 They argue that the way the ECtHR has used the lex specialis principle may serve, among other means, ‘as a helpful tool in accomplishing that task and creating a dynamic and harmonious mobile structure or web architecture between the general and the specific’.Footnote 60
This proposed approach reopens the debate about lex specialis. The special and autonomous nature of human rights was acknowledged by states participating in the negotiations of ARSIWA. They noted that the draft articles would not apply to self-contained legal regimes, such as those on the environment, human rights, and international trade, which had been developed in recent years.Footnote 61 This vision was broadly questioned by scholars,Footnote 62 dispute resolution bodies (particularly investment arbitration tribunals),Footnote 63 and by the ILC’s Study Group on Fragmentation of International Law, which acknowledged the special nature of human rights but clarified that no existing legal regime is fully self-contained.Footnote 64
According to Special Rapporteur Crawford and the ILC, ‘there is a presumption against the creation of wholly self-contained regimes in the field of reparation’ Footnote 65 and ‘none of the treaty regimes in existence today is self-contained in the sense that the application of general international law could generally be excluded’. Footnote 66 Therefore, whenever there is an overlap between the general international law of state responsibility and the lex specialis, the question is whether the specific provision of the special rule or treaty was intended to be cumulative with or exclusive of the ARSIWA, and that is a matter of interpretation in each case.Footnote 67
3.2 The contribution of the ICJ
Although the ICJ has not dealt directly with the question of whether a specific rule was intended to be cumulative with or exclusive of the ARSIWA, its case law provides clarification.
An important contribution of the Court in this regard is in its judgment in the Military and Paramilitary Activities in and against Nicaragua case. Footnote 68 When addressing the human rights violations by Nicaragua alleged by the US, the Court states that ‘where human rights are protected by international conventions, that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves’ as long as ‘the mechanisms provided for therein’ function. Footnote 69 On these grounds, it can be argued that when human rights treaties provide no meaningful enforcement in case of states alleging violations by other states, recourse to the general law of responsibility should be available. Footnote 70 Although the Court does not define the criteria to determine when a mechanism functions, it implicitly acknowledges the possibility of applying the international law of state responsibility to violations of international human rights obligations.
Another relevant contribution of the ICJ in this regard is in the Diallo case, in which the Court deferred to the interpretation of the Human Rights Committee and emphasized that:
[a]lthough the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty.Footnote 71
The Court went on to clarify that the priority is ‘to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled’.Footnote 72
As many, including Cançado Trindade, have emphasized, the ECHR is not a ‘self-contained regime’.Footnote 73 But the lex specialis principle described by Motoc and Vasel is a ‘weaker form(s) of limited deviation’ inspired by complementarity.Footnote 74 In the Catan case,Footnote 75 the Court emphasized the ‘obligation to take account of the relevant rules and principles of international law and to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part’.Footnote 76 This judgment has, nevertheless, been criticizedFootnote 77 for confusing the distinction between jurisdiction and attribution. In the Jaloud v. The Netherlands case,Footnote 78 the Court made various references to the ARSIWA, a timid but limited engagement with the international law of state responsibility that continued in the Chiragov and Others v. Armenia case.Footnote 79 In this case, although the Court engages with the ARSIWA for determining jurisdiction, it could have referred to it more substantively in the merits phase.Footnote 80
The idea of a lex specialis principle as a weak form of limited deviation inspired by complementarity that Motoc and Vasel refer to is a very interesting one and seems to be aligned with the decision of the ICJ in the Diallo case. However, the case law of the Strasbourg Court on this matter does not seem to show a clear direction towards further judicial integration. The increasing dialogue established between courts,Footnote 81 particularly encouraged by Judge Higgins during her term as President of the ICJ, could help advance towards further judicial integration and contribute to a more harmonized application of the ARSIWA.
4. The ICJ and upcoming opportunities for clarification of ARSIWA principles
As Judge Jennings, former President of the ICJ, emphasized, the ICJ is ‘thought of as being generally well suited to the settlement of disputes. But in so doing it has also a vital role in the development and elaboration of general law’.Footnote 82 In that role, further clarification on positive obligations and on some ARSIWA provisions by the ICJ could contribute to a more systematic use of the international law of state responsibility by the ECtHR and ultimately to a stronger protection of human rights. This Section looks at ICJ case law relevant to this research, and identifies areas in which the ICJ could provide further clarification.
One aspect that remains blurry and on which the ICJ could usefully elaborate is the distinction between positive obligations and other obligations. A landmark ICJ case on human rights and state responsibility where the Court clarified that difference is the Congo v. Uganda case on ‘acts of armed aggression’ against the Democratic Republic of the Congo, Footnote 83 the ‘first judgment in the Court’s history in which a finding of human rights violations was included in the dispositif’. Footnote 84 The Court found Uganda responsible for failure to prevent violations of human rights by the UPDF. In its decision on provisional measures, the Court called on both states to ‘take all measures necessary to ensure full respect within the zone of conflict for fundamental human rights’. Footnote 85 In its decision on the merits, the Court analysed the duty to secure respect for the applicable rules of international human rights. Footnote 86
The Court examined the applicable human rights treaties and concluded that Uganda had violated Articles 6(1) and 7 of the ICCPR, Articles 4 and 5 of the African Charter on Human and Peoples’ Rights, Article 38(2-3) of the Convention on the Rights of the Child, and Articles 1, 2, and 3(3-6) of the Optional Protocol to the Convention on the Rights of the Child, all of them provisions to which both Uganda and the Democratic Republic of the Congo were parties. Footnote 87 On this basis, it concluded that Uganda was ‘internationally responsible for violations of international human rights law … committed by the UPDF and by its members in the territory of the DRC’ and, what is more relevant to our research question, ‘for failing to comply with its obligations as an occupying Power in Ituri in respect of violations of international human rights law’ Footnote 88 in the occupied territory.
While not differentiating in its analysis the two sources of international responsibility for those human rights violations, the Court distinguishes in paragraph 220 the responsibility attributed to Uganda for the human rights violations committed by the UPDF from its responsibility for failing to fulfil its positive obligations to prevent, protect and punish. The Court will soon be considering the reparations phase in this case. In an unprecedented situation, the Court will consider reparations for mass violations of human rights for the first time. One may hope, moreover, that any reparation awarded in that judgment will provide further clarity on the above distinction, made in paragraph 220 of the merits judgment, between responsibility attributed to Uganda for acts of the UPDF, on the one hand, and responsibility for positive obligations, on the other.
Two pending cases before the Court could be opportunities for examining the limits of positive obligations in the intersection between the law of state responsibility and human rights: Ukraine v. Russian Federation, which concerns alleged violations by Russia of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and Qatar v. United Arab Emirates which concerns alleged violations by UAE of certain rights guaranteed by the CERD, including the right to marry and choose a spouse, the right to public health and medical care, the right to education and training, the right to property, work and equal treatment before tribunals. In particular, the separate opinions of Judge Cançado Trindade to both ICJ Orders on provisional measures emphasize relevant aspects of state obligations in those cases.
In Qatar v. UAE, Judge Cançado Trindade refers to positive obligations, mentioning the IACtHR Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants,Footnote 89 according to which states cannot discriminate, nor tolerate discriminatory situations to the detriment of those persons. Emphasizing this element of the Advisory Opinion, he is acknowledging separate obligations of states not to discriminate and not to tolerate discriminatory situations, in line with the distinction set by the Court in Congo v. Uganda.Footnote 90 The separate opinion does not explicitly set out the implications of the difference between these two obligations for state responsibility, but it could be inferred from the spirit of the opinion that the breach of both would give rise to it. In the same sense, in Ukraine v. Russian Federation, he refers to the ‘Drittwirkung effect’, as the ICSFT and the CERD ‘cover likewise inter-individual relations, without thereby excluding the subsequent consideration of state responsibility (as to the merits), even if by omission’.Footnote 91 Second, he highlights ‘the autonomy of the international responsibility that non-compliance with them (provisional measures) promptly generates’,Footnote 92 which is separate from the potential responsibility pertaining to the merits of the case.
The final judgments of the Court in these cases could be an opportunity for it to clarify the implications that the distinction between the obligation not to discriminate and the obligation not to tolerate discriminatory situations may have, if any, for state responsibility. It could also be an opportunity for the Court to go back to the question of responsibility for non-compliance with provisional measures in the context of human rights cases. As no reference to these two elements has been made in the ICJ decisions on these cases so far, nor in other separate or dissenting opinions, such development in the final judgment would be surprising but welcome.
As shown above, it is not only the limits of positive obligations that remains unclear. The difficulties in applying certain ARSIWA provisions, such as Articles 5, 8, and 16, appear to be one of the causes for the broad interpretation of certain ECHR rights and departure from certain ARSIWA principles, or at least its choice to not engage with them in an explicit and open way. The ICJ has already provided clarification on ‘effective control’ and other ARSIWA principles, as some illustrative examples above show.Footnote 93 Despite these clarifications, the application of the ‘effective control’ principle remains a challenge in the ECHR system and others, generating the ‘slippage’ problem analysed in Section 2 and the broad interpretation of some ECHR rights giving rise to positive obligations. Therefore, when opportunity arises, the ICJ could provide further clarification on this and other ARSIWA provisions that continue posing challenges of implementation in practice. This could contribute to the judicial integration towards which the ECtHR is arguably moving.
5. Conclusions
This article argues that the ICJ could have a key role in increasing the applicability of ARSIWA by the ECtHR, through clarification of some ARSIWA principles in its case law. This would contribute to a more coherent application of state responsibility and ultimately to greater protection of human rights. As Hessbruegge indicates, ‘the law of state responsibility always adapted more or less swiftly to each momentous change in the nature of the state and its relations with its members’ and ‘one has to ask where the law of state responsibility will go in the years to come’.Footnote 94
The ICJ, ‘as a mainstream interpreter of general international law’, has produced ‘the most important decisions on state responsibility’.Footnote 95 In a moment characterized by a fruitful dialogue between the ICJ and human rights courts and treaty bodies, pending and potential cases could be an opportunity for the Court to unpack some aspects of the international framework of state responsibility. An explicit clarification in upcoming ICJ judgments of the aspects tackled in this article would be welcomed, as it could facilitate a more systematic use of ARSIWA by the ECtHR. It is now common to see ‘the same human rights claims surfacing in diverse fora, including the ICJ, human rights courts, and treaty bodies’.Footnote 96 This creates a unique context for those courts and treaty bodies to identify methods to ensure accountability of states breaching human rights obligations. As the principal judicial organ of the United Nations, the ICJ is best placed to lead the way.
