19 May 2014

Shared Responsibility and the Federal State

Federal States in international law

To the international lawyer at least, the idea of a federal State, which distributes its sovereign competences between different internal orders of government, is generally irrelevant: how a political community structures its internal relations has nothing to do with how its sovereignty as a State is exercised externally.

The classical international legal fiction is that a State is a ‘black box’: whatever internal arrangements may have been devised, the federal State alone is responsible for international relations, and alone is a subject of international law. The ‘black box’ metaphor is rooted in the very idea of State sovereignty, as the Permanent Court stated in its very first judgment, in the Case of the S.S. Wimbledon: the capacity ‘of entering into international relations is an attribute of sovereignty’.[1] But it is not merely a metaphor or fiction: the centralisation of the capacity to act externally has been constitutive of a great many theories about the nature of international law as a system, not least Article 27 of the Vienna Convention on the Law of Treaties, which precludes that a State may evade its international obligations by invoking its internal law.

Despite this, the research question arose: to what extent are the acts of a federated entity cognised at international law? The question is relevant from both municipal and international perspectives. There are indeed several federal States whose component entities act on the international plane. Certain federal constitutions, inter alia, those of Germany, Switzerland, Austria and Belgium, as well as the special arrangements for Macau and Hong Kong, allow for the autonomous international action of their component entities. To these one can add the international agreements entered into by the provinces of Canada and the states composing the United States and Australia; although these are not constitutionally recognised in those federal States, the federal order often enables or co-signs agreements entered into by its federated entities. There are hundreds of agreements (accords, ententes) between federated entities and third States, or between each other.

Relatively few third states are willing to recognise and respond to such arrangements autonomously, without the oversight or guarantorship of the federal State. With few exceptions, notably that of France in its relations with the Canadian province of Quebec,[2] third States variously demand accords-cadre (‘framework agreements’) through which the federal order recognises or guarantees the agreement between its federated entity and the third State. This consistent practice would seem to confirm that, on the international plane at least, the capacity of federated entities to contract international obligations remains a question requiring the intervention of the federal State, as the plenary subject of that legal order.

But what of responsibility? The classical legal positivist view would recall that, formally at least, federated entities are nothing more than ‘organs’ of federal states in the sense of Article 4, paragraph 1, of the ILC Articles on State Responsibility, to the effect that if they breach international law, the federal State alone is responsible. It is true that practice has been sparing with respect to the recognition by third States of the capacity of the sub-State entities of another State to enter into international agreements with it. But in cases where internal constitutional arrangements have received international recognition, can a federated entity be held internationally responsible for its acts which are in breach of that obligation so undertaken?

Concurrent or shared responsibility

The default rule in international law is that the federal State remains responsible for the acts of its federated entities, and its responsibility cannot be excluded, whatever the domestic constitutional arrangements might provide.[3] The interesting question is whether that default rule excludes the possibility of the international responsibility of federated entities; and research into practice suggests that the question is less clear-cut than it would seem. Although relatively few, certain States have readily entered into international agreements with federated entities, suggesting that they are at least prepared to assume the ‘risk’ of dealing with a non-State organ or entity. In such circumstances, where there is ex ante agreement from the third State, the better view is to see international law as neutral with respect to the domestic constitutional arrangements of a federal State. There is no rule of international law which precludes a third state from accepting the separate international legal personality of a sub-state entity on a given subject-matter, entering into relations with that sub-state entity, and claiming against that sub-state entity in the event of a breach.

Presuming, for a moment, that the third or foreign State has recognised the internal arrangements of a federal State, what forms of responsibility could be invoked by that third State in case of a violation of an international obligation? One way to approach responsibility could be to share it between the two layers of government in a federal State. An injured party could file proceedings against either level of government, and these could later determine between them how such responsibility should be apportioned. Although there is little practice under the shared responsibility paradigm, in Canada a number of ‘indemnity agreements’ ensure that, although the federal government retains primary responsibility to indemnify injured third parties for breaches of international law by its provinces under the accords-cadre, it may seek reparation against a province for its contribution to the breach. In Switzerland, the Confederation government negotiates agreements on behalf of its cantons, and accepts external responsibility for any breach, but retains internally a right to seek reparation from its cantons. Similarly, the Belgian federal government retains a ‘power of substitution’, where it may substitute with one of its communities or regions in order to comply with a ruling against one of these by an international or supranational court or tribunal, and then retains the power to seek reparation from them. In such situations, a third State does not regard itself at risk of being denied reparation, and the federal State has recourse against its federated entities. This limited practice suggests that a model of shared responsibility, although difficult to implement, is far from impossible.

Conclusion

The modest theories on concurrent or shared responsibility put forward here depend on a reconceptualisation of federated entities not purely as organs or agents of the federal state, but rather as possessing limited international personality by virtue of their sovereign competence over various attributes of states, perhaps viewed in an overlapping or interlocked relationship with the federal government. It is the division or apportioning of sovereignty that is of wider interest in matters of shared responsibility in federal states. Such arrangements open exciting potential possibilities with respect to the role that federated entities can play in international relations, a dynamic role that can be accommodated within international law with some creativity.

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[1] Case of the S.S. Wimbledon (United Kingdom v. Japan), PCIJ, Ser. A., No. 1 (1923), 25.

[2] Even in that situation, which is marked by the constant debate over Quebec secession, the federal government of Canada insisted on exchanges of letters with France and a subsequent accord-cadre to validate Quebec-France agreements and assume international responsibility for any breach.

[3] See, e.g., Article 32 of the ILC Articles on State Responsibility, and LaGrand (Germany v. United States of America), Provisional Measures, ICJ Reports 1999, p. 9, at p. 16, para. 28.

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