Coercion, causation, and the fictional elements of indirect state responsibility.

• Author: Fry, James D.

ABSTRACT

This Article provides an in-depth analysis of Article 18 of the 2001 ILC Draft Articles on State Responsibility, which holds a coercing state indirectly responsible for an injurious act committed by a coerced state. Not only does this provision lack support from state practice, but the structural and logical flaws within the current formulation ensure that this provision does not significantly influence the evolution of state practice. Indeed, it would have been better for the ILC to have left Article 18 out of the Draft Articles, given that other, less problematic provisions could have covered such situations involving coercion. In reaching this conclusion, this Article explores the fascinating roles that coercion and causation play within the law of state responsibility.

TABLE OF CONTENTS I. INTRODUCTION II. INDIRECT RESPONSIBILITY AND COERCION A. The Conflict Between Representation and Control Theories B. Coercion in the Context of State Responsibility III. ARTICLE 18 AND CUSTOMARY INTERNATIONAL LAW A. The ILC as a Codification Body B. Scant State Practice 1. The Shuster Case 2. The Romano-Americana Company Case 3. Counterfactuals and Their Weak Conclusions 4. Potentially Applicable Scenarios: Bilateral Immunity Agreements C. Failure of Article 18 to Further the General Prohibition on Coercion IV. THE STRUCTURAL FLAWS OF ARTICLE 18 A. The Circularity of Sovereignty B. Disappearance of the Internationally Wrongful Act C. Confusion Between Cause-in-Fact and Legal Causation 1. The Different Types of Causation 2. The Problems with "But For" in Article 18 3. But-For Language in Legal Causation: Unsuitable Bedfellows 4. Degrees of Coercion V. CONCLUSION I. INTRODUCTION

The law of state responsibility is one of the most complex areas of international law, in terms of both articulating and implementing its principles. The International Law Commission (ILC or Commission) spending over five decades to write its Draft Articles on State Responsibility (Draft Articles) testifies to this truth. (1) Aspects of state responsibility within this body of law that have little, if any, support from state practice are that much more difficult to understand in practical terms. One such aspect is the law relating to indirect state responsibility that arises from coercion of another state. Draft Article 18 is the most recent rubric for holding a coercing state indirectly responsible for an injurious act committed by a coerced state:

A State which coerces another State to commit an act is internationally responsible for that act if: (a) the act would, but for the coercion, be an internationally wrongful act of the coerced State; and (b) the coercing State does so with knowledge of the circumstances of the act. (2) This formulation of state responsibility remains largely theoretical. The relatively weak cases cited in the Commentaries, which are based on tenuous counterfactual reasoning, and the absence of stronger cases indicate that this Article does not reflect customary international law. Moreover, three structural flaws of Article 18 essentially ensure that this provision will never become customary international law: (1) a veritable catch-22 involving the definition of coercion, (2) the disappearance of the internationally wrongful act, and (3) an overly strict and confused standard of attributive causation in the language "but for the coercion." Each flaw further enables coercing states to plausibly deny this brand of responsibility. With these perceived defects, Article 18 never will sufficiently deter states from engaging in coercion and may even encourage it. Therefore, it would be best if this provision were removed altogether. (3)

This Article is divided into five parts, with this introduction and a brief conclusion constituting Parts I and V, respectively. Part II explains the notion of indirect responsibility and provides a brief history of the development of this notion that leads to coercion of another state as a basis for state responsibility. Part III critically analyzes the state practice supposedly supporting this provision and explains why it is important. This Part also looks at the general prohibition of coercion under customary international law and why this might be the normative purpose behind Article 18's stand-alone existence. Part IV, the pivotal portion of this Article, sets out in detail the three structural flaws that are so detrimental to the application of Article 18. The lack of firm state practice hints at the ultra-progressive nature of Article 18, though these three blemishes are what ensure that Article 18 will remain in the virtual realm until amendment.

Critics might assert that many of the arguments here are overly formalistic; however, one must not forget that legal formalism is likely the best tool for a lawyer to use in criticizing the work of an organization that is itself extremely formalistic in its approach to codifying international law. Besides legal formalism, this Article adopts a textualist approach to analyzing Article 18, relying mostly on the plain meaning of the text, though also looking at the internal context and structure of the text, to address whether Article 18 is coherent and reflective of customary international law. (4) Indeed, as the ILC emphasized strong textualism over contract law in the Vienna Convention on the Law of Treaties (VCLT), (5) it presumably will not mind having textualism applied to its own pronouncements. While the intent of the Special Rapporteurs and the ILC was considered in depth, it was not the predominant source of meaning. In this context, this Article rejects the positivist corrective justice theory, which states that a decision-maker will not bother with ambiguous cause-in-fact, but instead will be driven to award damages based on the coercing state's perceived immorality. (6) Although this might be what happens ultimately if an actual case ever arises (especially if Article 18 remains in its murky condition), the Draft Articles are about establishing a coherent system for evaluating state responsibility. By doing so, positivist and normative efficiency

theorists will be pleased by the increased predictability that likely will come from decision-makers. (7) Finally, the purpose of this Article is not to suggest how Article 18 ought to be amended, but merely to point out its perceived shortcomings. Despite this critical tenor, the Author wishes to emphasize that no disrespect is intended to the ILC and its members, whom the Author holds in the highest regard. (8) Nonetheless, the issues raised here warrant further consideration and hopefully will aid in the gradual transformation of the Draft Articles into customary international law.

2. INDIRECT RESPONSIBILITY AND COERCION

   This Part provides the background necessary to fully understand Article 18 and how it fits into the broader debate over indirect responsibility. However, before delving into the evolution of the principle and its sui generis definitions, it is useful to define indirect responsibility, which is the general topic of Chapter IV of the Draft Articles containing Article 18. To begin, the full title of Chapter IV is "Responsibility of a State in Connection with the Act of Another State," (9) and comprises Articles 16 to 19. Otherwise known by its shorthand "indirect responsibility," Chapter IV involves the triangular relationship between the injured state, the state committing the internationally wrongful act, and a third state that has some relationship or influence over the state committing the act. (10) In essence, the state committing the internationally wrongful act has breached an international obligation to the injured state, and the principle allows the injured state the opportunity to make a claim against the third state for whatever reason--possibly because the state committing the internationally wrongful act either is unavailable or protected by force majeure, or because the injured state does not otherwise want to bring a claim against that state. Under Chapter IV, the third state generally is not to be held responsible for the assistance, direction, or coercion itself, but rather for the act that flowed from the assistance, direction, or coercion. For comparison purposes, it might be useful to note how, under Article 16 that deals with aid or assistance in committing an internationally wrongful act, the third state is not responsible for the internationally wrongful act per se when assisting in its commission, but for that state's wrongful participation in the commission of that act. In comparison, Article 18 does not appear to have any of the states committing an internationally wrongful act, a point that Part IV(B) develops further.

   After laying out a brief history of the two theories that shaped this area of indirect responsibility, this Part provides an analysis of the definitions for coercion that were adopted by the ILC. As discussed below, the definition's focus on the existence of a temporary relationship of control during the wrongful act is the fundamental source of the fictional elements of Article 18.

   1. The Conflict Between Representation and Control Theories

      Since the early 1900s, the theoretical framework underlying indirect responsibility has switched between the representation and control theories. Understanding this debate, especially the arguments of the control theory, is helpful in understanding the current formulation of Article 18. Early commentaries and draft articles mentioned the possibility of indirect responsibility of a state without ever naming coercion of another state as a distinct issue or even possibility. (11) Dionisio Anzilotti was the first to talk about indirect responsibility in 1902, though he limited his focus to the representation theory. (12) He reasoned that an injured state would not be able to address a represented state in asserting its responsibility, as the represented state did not carry out...