State responsibility He claimed that he had not had a fair hearing, contrary to article 6, paragraph 1, of the European Convention on Human Rights. The Court noted that: The Contracting States enjoy a wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of article 6 § 1 in this field. The Court’s task is not to indicate those means to the States, but to determine whether the result called for by the Convention has been achieved ... For this to be so, the resources available under domestic law must be shown to be effective and a person “charged with a criminal offence” ... must not be left with the burden of proving that he was not seeking to evade justice or that his absence was due to force majeure.210 The Court thus considered that article 6, paragraph 1, imposed an obligation of result.211 But, in order to decide whether there had been a breach of the Convention in the circumstances of the case, it did not simply compare the result required (the opportunity for a trial in the accused’s presence) with the result practically achieved (the lack of that opportunity in the particular case). Rather, it examined what more Italy could have done to make the applicant’s right “effective”.212 The distinction between obligations of conduct and result was not determinative of the actual decision that there had been a breach of article 6, paragraph 1.213 (12) The question often arises whether an obligation is breached by the enactment of legislation by a State, in cases where the content of the legislation prima facie conflicts with what is required by the international obligation, or whether the legislation has to be implemented in the given case before the breach can be said to have occurred. Again, no general rule can be laid down that is applicable to all cases.214 Certain obligations may be breached by the mere passage of incompatible legislation.215 Where this is so, the passage of the legislation without more entails the international responsibility of the enacting State, the 210 Colozza v. Italy, Eur. Court H.R., Series A, No. 89 (1985), pp. 15–16, para. 30, citing De Cubber v. Belgium, ibid., No. 86 (1984), p. 20, para. 35. 211 Cf. Plattform “Ärzte für das Leben” v. Austria, in which the Court gave the following interpretation of article 11: “While it is the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used … In this area the obligation they enter into under article 11 of the Convention is an obligation as to measures to be taken and not as to results to be achieved” (Eur. Court H.R., Series A, No. 139, p. 12, para. 34 (1988)). In the Colozza case (see footnote 210 above), the Court used similar language but concluded that the obligation was an obligation of result. Cf. C. Tomuschat, “What is a ‘breach’ of the European Convention on Human Rights?”, The Dynamics of the Protection of Human Rights in Europe: Essays in Honour of Henry G. Schermers, Lawson and de Blois, eds. (Dordrecht, Martinus Nijhoff, 1994), vol. 3, p. 315, at p. 328. 212 Colozza case (see footnote 210 above), para. 28. 213 See also The Islamic Republic of Iran v. The United States of America, cases A15 (IV) and A24, Iran-U.S. C.T.R., vol. 32, p. 115 (1996). 214 Cf. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (footnote 83 above), p. 30, para. 42. 215 A uniform law treaty will generally be construed as requiring immediate implementation, i.e. as embodying an obligation to make the provisions of the uniform law a part of the law of each State party: see, e.g., B. Conforti, “Obblighi di mezzi e obblighi di risultato nelle convenzioni di diritto uniforme”, Rivista di diritto internazionale privato e processuale, vol. 24 (1988), p. 233. 57 legislature itself being an organ of the State for the purposes of the attribution of responsibility.216 In other circumstances, the enactment of legislation may not in and of itself amount to a breach,217 especially if it is open to the State concerned to give effect to the legislation in a way which would not violate the international obligation in question. In such cases, whether there is a breach will depend on whether and how the legislation is given effect.218 Article 13. International obligation in force for a State An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs. Commentary (1) Article 13 states the basic principle that, for responsibility to exist, the breach must occur at a time when the State is bound by the obligation. This is but the application in the field of State responsibility of the general principle of intertemporal law, as stated by Judge Huber in another context in the Island of Palmas case: [A] juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled.219 Article 13 provides an important guarantee for States in terms of claims of responsibility. Its formulation (“does not constitute … unless …”) is in keeping with the idea of a guarantee against the retrospective application of international law in matters of State responsibility. (2) International tribunals have applied the principle stated in article 13 in many cases. An instructive example is provided by the decision of Umpire Bates of the United States-Great Britain Mixed Commission concerning the 216 See article 4 and commentary. For illustrations, see, e.g., the findings of the European Court of Human Rights in Norris v. Ireland, Eur. Court H.R., Series A, No. 142, para. 31 (1988), citing Klass and Others v. Germany, ibid., No. 28, para. 33 (1978); Marckx v. Belgium, ibid., No. 31, para. 27 (1979); Johnston and Others v. Ireland, ibid., No. 112, para. 42 (1986); Dudgeon v. the United Kingdom, ibid., No. 45, para. 41 (1981); and Modinos v. Cyprus, ibid., No. 259, para. 24 (1993). See also International responsibility for the promulgation and enforcement of laws in violation of the Convention (arts. 1 and 2 American Convention on Human Rights), Advisory Opinion OC–14/94, Inter-American Court of Human Rights, Series A, No. 14 (1994). The Inter-American Court also considered it possible to determine whether draft legislation was compatible with the provisions of human rights treaties: Restrictions to the Death Penalty (arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC–3/83, Series A, No. 3 (1983). 217 As ICJ held in LaGrand, Judgment (see footnote 119 above), p. 497, paras. 90–91. 218 See, e.g., WTO, Report of the Panel (footnote 73 above), paras. 7.34–7.57. 219 Island of Palmas (Netherlands/United States of America), UNRIAA, vol. II (Sales No. 1949.V.1), p. 829, at p. 845 (1928). Generally on intertemporal law, see resolution I adopted in 1975 by the Institute of International Law at its Wiesbaden session, Annuaire de l’Institut de droit international, vol. 56 (1975), pp. 536–540; for the debate, ibid., pp. 339–374; for M. Sørensen’s reports, ibid., vol. 55 (1973), pp. 1–116. See further W. Karl, “The time factor in the law of State responsibility”, Spinedi and Simma, eds., op. cit. (footnote 175 above), p. 95.