Environmental Engineering Reference
In-Depth Information
Responsibility 2001 also clearly points out that the articles can apply in the case of
the Desertec Concept. Consequently, the ILC Responsibility 2001 might apply.
3.5.1.1.4 Object and Purpose of the ILC Responsibility 2001 and Problems
As mentioned in the General commentary of the ILC Responsibility 2001, the
articles only deal with international responsibility (No. 1 and 4(c) of the General
Commentary). The Commentary to Chapter III of the ILC Responsibility 2001
highlights this purpose again. According to the Commentary, attribution can only
take place if the action of the state or the entity is within the field of international
law and does not only take place on a national level. In the case of an attribution, it
is not important, if the entity was able to represent the state based on the national
laws of this state.
185
The ILC Responsibility 2001 is solely secondary norms and
not primary norms.
186
As in the theory of treaties and the theory of responsibility,
the theory of treaties comes first (question of whether there is a treaty obligation)
and the theory of responsibility is second (question of who is responsible for the
breach of the treaty obligation).
187
Hence, the ILC Responsibility 2001 regulations
are secondary norms because they do not deal with the issue of treaty obligations.
The ILC Responsibility 2001 only applies to acts and not obligations, whereby
an obligation is not an act and does not directly involve any breach of international
law obligation.
'
188
However, two tribunals solved this problem, whereby one
focused on the attribution of the undertaking of an obligation instead of the
attribution of an obligation,
189
and the second one mentioned that the entity was
acting according to state authority and pursuant to domestic law.
190
There is also
the problem that Art. 8 of the ILC Responsibility 2001 only stipulates entity actions
because of governmental instructions, directions or control.
191
This problem arises
in cases of a legally independent private company as the state is only able to express
its will
'
in the
'
cooperation agreement
'
on how the private company should
operate.
192
185
Dolzer and Schreuer (
2008
), 198; Crawford (
2008
), 351 (356); Hob
´
r(
2008
), 545 (550); In
addition it is irrelevant if the act committed by the state is wrongful according to national law,
because characterization is according to international law, in: Hob
´
r(
2008
), 545 (546).
186
Binder (
2009a
), 608 (624).
187
Binder (
2009a
), 608 (624-625).
188
Gallus (
2008
), 157 (167).
189
ICSID [2005] ARB/01/11—Award, 75-76 para 86; Gallus (
2008
), 157 (167).
190
Ad hoc Arbitration [2005] Partial Award, 47 para 129; Gallus (
2008
), 157 (167); cf Dolzer and
Schreuer (
2008
), 199.
191
United Nations (
2001
), 31 (47) para Article 8 Commentary (1).
192
Griebel (
2008
), 53; cf Hob´r(
2008
), 545 (551-552); Further problems of Article 8 ILC
Responsibility 2001, in: Gallus (
2008
), 157 (168-169).
