State responsibility
as did ICJ in the United States Diplomatic and Consular
Staff in Tehran case with respect to remedies for abuse of
diplomatic and consular privileges.824
(6) The principle stated in article 55 applies to the articles as a whole. This point is made clear by the use of
language (“the conditions for the existence of an internationally wrongful act or the content or implementation of
the international responsibility of a State”) which reflects
the content of each of Parts One, Two and Three.
Article 56. Questions of State responsibility
not regulated by these articles
international law but also by some treaties; hence article
56 refers to the “applicable rules of international law”.
(3) A second function served by article 56 is to make
it clear that the present articles are not concerned with
any legal effects of a breach of an international obligation
which do not flow from the rules of State responsibility,
but stem from the law of treaties or other areas of law.
Examples include the invalidity of a treaty procured by
an unlawful use of force,826 the exclusion of reliance on
a fundamental change of circumstances where the change
in question results from a breach of an international obligation of the invoking State to any other State party,827 or
the termination of the international obligation violated in
the case of a material breach of a bilateral treaty.828
The applicable rules of international law continue
to govern questions concerning the responsibility of a
State for an internationally wrongful act to the extent
that they are not regulated by these articles.
Commentary
(1) The present articles set out by way of codification
and progressive development the general secondary rules
of State responsibility. In that context, article 56 has two
functions. First, it preserves the application of the rules
of customary international law concerning State responsibility on matters not covered by the articles. Secondly,
it preserves other rules concerning the effects of a breach
of an international obligation which do not involve issues
of State responsibility but stem from the law of treaties
or other areas of international law. It complements the lex
specialis principle stated in article 55. Like article 55, it
is not limited to the legal consequences of wrongful acts
but applies to the whole regime of State responsibility set
out in the articles.
(2) As to the first of these functions, the articles do not
purport to state all the consequences of an internationally
wrongful act even under existing international law and
there is no intention of precluding the further development of the law on State responsibility. For example, the
principle of law expressed in the maxim ex injuria jus non
oritur may generate new legal consequences in the field
of responsibility.825 In this respect, article 56 mirrors the
preambular paragraph of the 1969 Vienna Convention
which affirms that “the rules of customary international
law will continue to govern questions not regulated by the
provisions of the present Convention”. However, matters
of State responsibility are not only regulated by customary
824 United States Diplomatic and Consular Staff in Tehran (see
footnote 59 above), at p. 40, para. 86. See paragraph (15) of the commentary to article 50 and also B. Simma, “Self-contained regimes”,
NYIL, 1985, vol. 16, p. 111.
825 Another possible example, related to the determination whether
there has been a breach of an international obligation, is the so-called
principle of “approximate application”, formulated by Sir Hersch
Lauterpacht in Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion, I.C.J. Reports 1956, p. 23,
at p. 46. In the Gabčíkovo-Nagymaros Project case (see footnote 27
above), the Court said that “even if such a principle existed, it could by
definition only be employed within the limits of the treaty in question”
(p. 53, para. 76). See also S. Rosenne, Breach of Treaty (footnote 411
above), pp. 96–101.
141
Article 57. Responsibility of an international
organization
These articles are without prejudice to any question
of the responsibility under international law of an international organization, or of any State for the conduct of an international organization.
Commentary
(1) Article 57 is a saving clause which reserves two related issues from the scope of the articles. These concern,
first, any question involving the responsibility of international organizations, and secondly, any question concerning the responsibility of any State for the conduct of an
international organization.
(2) In accordance with the articles prepared by the Commission on other topics, the expression “international organization” means an “intergovernmental organization”.829
Such an organization possesses separate legal personality
under international law,830 and is responsible for its own
acts, i.e. for acts which are carried out by the organization
through its own organs or officials.831 By contrast, where
a number of States act together through their own organs
as distinct from those of an international organization,
the conduct in question is that of the States concerned,
in accordance with the principles set out in chapter II of
Part One. In such cases, as article 47 confirms, each State
remains responsible for its own conduct.
826
1969 Vienna Convention, art. 52.
Ibid., art. 62, para. 2 (b).
828 Ibid., art. 60, para 1.
829 See article 2, paragraph 1 (i), of the Vienna Convention on the
Law of Treaties between States and International Organizations or
between International Organizations (hereinafter “the 1986 Vienna
Convention”).
830 A firm foundation for the international personality of the
United Nations is laid in the advisory opinion of the Court in Reparation for Injuries (see footnote 38 above), at p. 179.
831 As the Court has observed, “the question of immunity from legal process is distinct from the issue of compensation for any damages incurred as a result of acts performed by the United Nations or
by its agents acting in their official capacity. The United Nations may
be required to bear responsibility for the damage arising from such
acts”, Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission on Human Rights (see footnote 56
above).
827
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