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The ILC’s Draft Articles on State Responsibility: Toward Completion of a Second Reading

Published online by Cambridge University Press:  27 February 2017

James Crawford
Affiliation:
University of Cambridge and the Special Rapporteur on State Responsibility of the International Law Commission
Pierre Bodeau
Affiliation:
University of Cambridge
Jacqueline Peel
Affiliation:
New York University School of Law

Abstract

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Type
Notes and Comments
Copyright
Copyright © American Society of International Law 2000

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References

1 For the text of the draft articles adopted on first reading, see [1996] 2 Y.B. Int’l L. Comm’n, pt. 2, at 58, UN Doc. A/CN.4/SER.A/1996/Add. 1 (Part 2). The ILC’s annual reports from 1996 to 2000 are available online at <http://www.un.org/law/ilc/index.htm>.

2 For the complete text of the 59 articles, see ILC, State Responsibility: Draft Articles Provisionally Adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L.600 (Aug. 11, 2000), obtainable from <http://www.cam.ac.uk/RCIL/ILCSR/statresp.htm> [hereinafter Second Reading]. References hereinafter are to the renumbered articles as provisionally adopted by the Drafting Committee in 2000. A table on page 662 infra sets out the list of parts, chapters, and articles as they now stand, with references to first-reading equivalents. For an explanation of the text as provisionally adopted, see the report of the chairman of the Drafting Committee, Giorgio Gaja, UN Doc. A/CN.4/2662 (2000).

3 This conforms with the schedule for the second reading adopted by the ILC in 1997. See Report of the International Law Commission on the Work of Its Forty-ninth Session, para. 161, UN GAOR, 52d Sess., Supp. No. 10, UN Doc. A/52/10 (1997). Itwould not have been possible without the extra working time afforded by the split sessions in 1998 and 2000.

4 See Observations and Comments of Governments on Chapters I, II, and III of Part 1 of the Draft Articles on State Responsibility for Internationally Wrongful Acts, [1980] 2 Y.B. Int’l L. Comm’n, pt. 1, at 87, UN Doc. A/CN.4/SER.A/1980/Add.1 (Part 1); Comments of Governments on Part 1 of the Draft Articles on State Responsibility for Internationally Wrongful Acts, [1981] 2Y.B. Int’l L. Comm’n, pt. 1, at 71, UN Doc. A/CN.4/SER.A/1981/Add.1 (Part 1); Comments and Observations of Governments on Part 1 of the Draft Articles on State Responsibility for Internationally Wrongful Acts, [1982] 2 Y.B. Int’l L. Comm’n, pt. 1, at 15, UN Doc. A/CN.4/SER.A/1982/Add. 1 (Part 1); Comments and Observations of Governments on Part 1 of the Draft Articles on State Responsibility for Internationally Wrongful Acts, [1983] 2 Y.B. Int’l L. Comm’n, pt. 1, at 1, UN Doc. A/CN.4/SER.A/1983/Add.1 (Part 1); and Comments and Observations of Governments on Part 1 of the Draft Articles on State Responsibility for Internationally Wrongful Acts, [1988] 2 Y.B. Int’l L. Comm’n, pt. 1, at 1, UN Doc. A/CN.4/SER.A/1988/Add. 1 (Part 1). Subsequendy, the General Assembly invited comments on the draft articles as a whole. See Comments and Observations of Governments, UN Doc. A/CN.4/488 & Adds. 1–3 (1998); UN Doc. A/CN.4/492 (1998). Many governments also commented on the evolution of particular draft articles in the course of the debate in the Sixth Committee on the work of the Commission. Sec UN Doc. A/CN.4/496 (1998); UN Doc. A/CN.4/504 (1999).

5 This part has been set to one side for the time being, pending a decision on the eventual form of the draft articles.

6 The revision was based on Crawford, James, First and Second Reports on State Responsibility, UN Doc. A/CN.4/490 & Adds.1–7 (1998)Google Scholar; UN Doc. A/CN.4/498 & Adds.1–4 (1999) [hereinafter Second Report], both obtainable from <http://www.un.org/law/ilc/index.htm>. For a summary of the ILC debate and conclusions, see Report of the International Law Commission on the Work of Its Fiftieth Session, UN GAOR, 53d Sess., Supp. No. 10, paras. 241–331, UN Doc. A/53/10 (1998) [hereinafter 1998 Report]; Report of the International Law Commission on the Work of Its Fifty-first Session, UN GAOR, 54th Sess., Supp. No. 10, paras. 64–453, UN Doc. A/54/10 (1999).

7 For reviews of the work achieved on the topic by the ILC in 1998–1999, see Crawford, James & Bodeau, Pierre, Second Reading of the Draft Articles on State Responsibility: A Progress Report, 1 Int’l L. F. 44 (1999)Google Scholar; Crawford, James & Bodeau, Pierre, Second Reading of the ILC Draft Articles on State Responsibility: Further Progress, 2 Int’l L. F. 45 (2000)Google Scholar. See generally Symposium, State Responsibility, 10 Eur. J. Int’l L. 339 (1999).

8 1998 Report, supra note 6, para. 331.

9 Part 2 of the first-reading text of the draft articles consisted of 18 articles in four parts, dealing with general principles applicable to part 2 (chapter I), rights of the injured state and obligations of the state that has committed an internationally wrongful act (chapter II), countermeasures (chapter III), and the consequences of the commission of an international crime (chapter IV).

10 Crawford, James, Third Report on State Responsibility, UN Doc. A/CN.4/507 & Adds.1–4 (2000), obtainable from <http://www.un.org/law/ilc/index.htm>Google Scholar [hereinafter Third Report].

11 For a full summary of the debate on the Third Report, see Report of the International Law Commission on the Work of Its Fifty-second Session, UN GAOR, 55th Sess., Supp. No. 10, ch. IV, UN Doc. A/55/10 (2000).

12 Part 4 contains articles on lex specialis (Art. 56) and the relationship of the draft articles to the Charter of the United Nations (Art. 59), as well as saving clauses concerning responsibility of or for the conduct of an international organization (Art. 57) and individual responsibility (Art. 58).

13 Further information, in addition to the texts of the reports and government comments, can be found online at <http://www.cam.ac.uk/RCIL/ILCSR/statresp.htm> and <http://www.un.org/law/ilc/index.htm>.

14 Aspects of that work have already been approved by international tribunals; for example, the general approach to countermeasures in Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), Merits, 1997 ICJ Rep. 7 (Sept. 25), and the inclusion of cessation as well as reparation as a consequence of responsibility in the Rainbow Warrior arbitration, 20 R.I.A.A. 217, 270, para. 114 (1990).

15 See Third Report, supra note 10, paras. 8, 9, for a summary.

16 See Sachariew, Kamen, State Responsibility for Multilateral Treaty Violations: Identifying the ‘Injured State’ and Its Legal Status, 35 Neth. Int’l L. Rev. 273 (1988)CrossRefGoogle Scholar; Hutchinson, D. N., Solidarity and Breaches of Multilateral Treaties, 59 Brit. Y.B. Int’l L. 151 (1988)Google Scholar; Kawasaki, K., The Notion of Injured State’in the Law of International Responsibility of States: The ILC’s Draft Article 5 of Part 2 on State Responsibility [3 parts], 11 Shudol.Rev. 319 (1989)Google Scholar; 12 id. at 95 (1990); 13 id. at 225 (1991) (in Japanese); Simma, Bruno, Bilateralism and Community Interest in the Law of State Responsibility, in International Law at a Time of Perplexity 821 (Dinstein, Yoram ed., 1988)Google Scholar; Jonathan I., Charney, Third State Remedies in International Law, 10 Mich. J. Int’l L. 57 (1989)Google Scholar; Vadapalas, Vilenas, L’Intêrêt pour agir en responsabilité Internationale, 20 Pol.Y.B. Int’l L. 17 (1993)Google Scholar; Jochen A., Frowein, Reactions by Not Directly Affected States to Breaches of Public International Law, 248 Recueil des Cours 349 (1994 IV)Google Scholar; Simma, Bruno, From Bilateralism to Community Interest in International Law, 250 Recueil des Cours 219 (1994 VI)Google Scholar; Annacker, Claudia, Part 2 of the International Law Commission’s Draft Articles on State Responsibility, 37 Ger. Y.B. Int’l L. 206 (1994)Google Scholar; Andreas de, Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical Inquiryinto the Implementation and Enforcement of the International Responsibility of States (1996)Google Scholar; Georges Perrin, M., La Détermination de l’Etat lésé. Les régimes dissociables et les régimes indissociables, in Essays in Honour of Krzysztof Skubiszewski 243 (1996)Google Scholar; Ragazzi, Mauricio, The Concept of International Obligations Erga Omnes (1997)Google Scholar; David J., Bederman, Article 40(2)(e) & (f) of the ILC Draft Articles on State Responsibility: Standing of Injured States under Customary International Law and Multilateral Treaties, 92 ASIL Proc. 291 (1998)Google Scholar; Kawasaki, K., The ‘Injured State’ in the International Law of State Responsibility, 28 Hitotsubashi J. L. & Pol. 17 (2000)Google Scholar Crawford, James, The Standing of States: A Critique of Article 40 of the ILC’s Draft Articles on State Responsibility, in 2 Liber Amicorum for Lord Slynn of Hadley 27 (Andenas, Mads ed., 2000)Google Scholar.

17 Barcelona Traction, Light & Power Co., Ltd. (Second Phase) (Belg. v. Spain), 1970 ICJ Rep. 3 (Feb. 5).

18 See Article 12 and, for commentary, Second Report, supra note 6, paras. 16–26.

19 Article 60(2) provides as follows:

2. A material breach of a multilateral treaty by one of the parties entitles:

  • (a)

    (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:

    • (i)

      (i) in the relations between themselves and the defaulting State; or

    • (ii)

      (ii) as between all the parties;

  • (b)

    (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State;

  • (c)

    (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.

Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.

20 Second Reading, supra note 2, Art. 43 (b) (i).

21 Id., Art. 43(b)(ii).

22 Assurances and guarantees of nonrepetition were previously dealt with as an aspect of reparation. However, they are sought by an injured state “because it feels that the mere restoration of the normal, pre-existing situation does not protect it satisfactorily.” Commentary to Article 46 [formerly 10 bis] on first reading, [1993] 2 Y.B. Int’l L. Comm’n, pt. 2, at 81, para. 2, UN Doc. A/CN.4/SER.A/1993/Add.1 (Part 2). The question is thus not one of reparation but, as it were, reinforcement of a legal relationship that ex hypothesi is continuing. For this reason, assurances and guarantees are more appropriately dealt with in the context of the continuation and repair of the legal relationship affected by the breach than as an aspect of the secondary obligation of reparation.

23 For example, if restitution is materially impossible (Art. 36 (a)) or would involve a burden out of all proportion to the benefit deriving from restitution instead of compensation (Art. 36 (b)). Previous exceptions concerning situations where restitution would entail the breach of a peremptory norm (former Art. 43 (b)) or would seriously jeopardize the political independence or economic stability of the wrongdoing state (former Art. 43 (d)) were deleted because of the lack of realistic examples and because they are covered, in any case, by other provisions of the draft articles.

24 The term “financially assessable damage” replaces “economically assessable damage” in Article 37, Compensation. The new formulation was included to indicate that compensable damage is not limited to that which can be assessed by economic methodologies, but also encompasses any damage that can be assessed in monetary terms, whether material or moral and whether incurred by a state or by its nationals. It includes loss of profits “insofar as it is established.”

25 Satisfaction may consist in “an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality,” provided it is not out of proportion to the injury and is not humiliating to the responsible state (Art. 38). Earlier references to more stringent forms of satisfaction, including “disciplinary or penal action against those responsible for the conduct which led to the breach,” were deleted. The list of modalities is not exhaustive, and in special cases such modalities may still be applicable. But the new text does mark a movement away from substantial, as distinct from symbolic, forms of satisfaction, except in cases of serious breach covered by Article 41.

26 Former Article 44 provided only that “compensation... may include interest.” The commentary to the article is more expansive, reflecting the substantial treatment given to the issue by Special Rapporteur Arangio-Ruiz. Gaetano Arangio-Ruiz, Second Report on State Responsibility, [1989] 2 Y.B. Int’l L. Comm’n, pt. 1, at 1, 23–30, paras. 77–105, UN Doc. A/CN.4/SER.A/1989/Add.1 (Part 1).

27 Second Reading, supra note 2, Art. 39. For discussion of interest, including compound interest, see Third Report, supra note 10, Add.1, paras. 195–214. Chapter II also provides for account to be taken, in the determination of reparation, of the “contribution to the damage by wilful or negligent action or omission of the injured State or any person or entity in relation to whom reparation is sought” (Art. 40).

28 1927 PCIJ (ser. A) No. 9, at 21 (July 26).

29 Passage Through the Great Belt (Fin. v. Den.) (Provisional Measures), Order, 1991 ICJ Rep. 12 (July 29).

30 Compare Vienna Convention on the Law of Treaties, supra note 19, Article 65, on procedure regarding invalidity, termination, withdrawal from, or suspension of operation of treaties. Notice of the claim need not be in writing: it is sufficient that the responsible state is aware of the allegation and in a position to respond to it (e.g., by ceasing commission of the breach and offering some appropriate form of reparation).

31 For example, the principle in Monetary Gold Removed from Rome in 1943, Preliminary Question, 1954ICJ Rep. 19 (June 15).

32 As adopted on first reading, Art. 22, Exhaustion of local remedies, clearly adopted a “substantive” view of that requirement. Its formulation in Article 45 (b) is much more neutral, and even tends toward the “procedural” view.

33 For example, in the Russian Indemnity case, the Russian embassy had repeatedly demanded that Turkey pay a certain sum (corresponding to the capital amount of a loan), without any reference to interest or damages for delay. Since Turkey had paid the sum demanded, the tribunal held that Russia’s conduct amounted to an abandonment of any other claim arising from the loan. Affaire de l’Indemnité Russe (Russ./Turk.), 11 R.I.A.A. 421, 446 (Perm. Ct. Arb. 1912).

34 See Certain Phosphate Lands in Nauru (Nauru v. Austl.), Preliminary Objections, 1992 ICJ Rep. 240, para. 13 (June 26).

35 See the review in Third Report, supra note 10, Add.2, para. 258.

36 Another relevant factor has been the influence of private-law analogies and domestic rules concerning limitation of actions or laches. Where the underlying claim (e.g., in contract) is governed by some national system of law and the claim is prescribed, extinguished, or barred under that law, there is no reason why a diplomatic-protection claim by the state of nationality should be in a better position. But national limitation periods may possibly be applied by analogy, and the general (though not universal) tendency has been toward shorter limitation periods, and the treatment of limitation periods as substantive rather than procedural. For a general review, see Extinctive Prescription on the Limitation of Actions 22–25 (Ewoud H. Hondius ed., 1995).

37 See text following note 21 supra.

38 For a review of some of these, see Third Report, supra note 10, Add.2, paras. 268–76.

39 The Drafting Committee did not accept me special rapporteur’s terminology of “States having a legal interest” for the latter category, on the ground that injured states also have a legal interest, and as a result of disagreements over the interpretation of key passages in the Barcelona Traction Judgment.

40 The two sets of states are not in all respects in the same legal position as the injured state in a bilateral context. The latter can waive the breach entirely, and may well be entitled to terminate the underlying legal relation; states particularly injured by breach of a multilateral obligation may not be able to do so, even though they can waive the consequences of the breach so far as they are concerned.

41 Second Reading, supra note 2, Art. 49(2).

42 Id.

43 Endorsed by the International Court in Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), Merits, 1997 ICJ Rep. 7, 56–57, para. 87 (Sept. 25).

44 Second Reading, supra note 2, Article 51, Obligations not subject to countermeasures.

45 Particularly the requirement that countermeasures should be commensurate with the injury suffered, id., Article 52, Proportionality.

46 Id., Art. 55.

47 Such as Ethiopia and Liberia in South West Africa (Eth. v. S. Afr.; Liber, v. S. Afr.) (Second Phase), 1966 ICJ Rep. 6 (July 18).

48 In Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 105, para. 199 (June 27), the International Court noted that action byway of collective self-defense could not be taken by a third state except at the request of the victim (the state subjected to the armed attack). The fact that the rules relating to the use of force give rise to obligations erga omnes (i.e., collective obligations) makes the analogy a reasonable, if not compelling, one.

49 See Second Reading, supra note 2, Art. 54; see also Third Report, supra note 10, Add.4, paras. 401–02.

50 See text at note 7 supra. The question of “crimes of State” has generated a substantial literature. See, e.g., Georges, Abi-Saab, The Uses of Article 19, 10 Eur. J. Int’l L. 339 (1999)Google Scholar; Derek W., Bowett, Crimes of State and the 1996 Report of the International Law Commission on State Responsibility, 9 id. at 163 (1998)Google Scholar; Christian, Dominicé, The International Responsibility of States for Breach of Multilateral Obligations, 10 id. at 353 (1999)Google Scholar; Gaja, Giorgio, Should All References to International Crimes Disappear from the ILC Draft Articles on State Responsibility1? id. at 365 Google Scholar; Graefrath, B., International Crimes and Collective Security, in International Law: Theory and Practice 237 (Wellens, Karel ed., 1998)Google Scholar; Pellet, Alain, Can a State Commit a Crime? Definitely, Yes! 10 Eur. J. Int’l L. 425 (1999)CrossRefGoogle Scholar; Pellet, Alain, Vive le crime! Remarques sur les degrés de l’illicite en droit international, in International Law on the Eve of the Twenty-First Century: Views from the International Law Commission 287, UN Sales No. E/F.97.V.4 (1997)Google Scholar; Rao, P. S., Comments on Article 19 of the Draft Articles on State Responsibility Adopted by the International Law Commission, 37 Indian J. Int’l L. 673 (1997)Google Scholar; Rosenne, Shabtai, State Responsibility and International Crimes: Further Reflections on Article 19 of the Draft Articles on State Responsibility, 30 N.Y.U. J. Int’l L. & Pol. 145 (1998)Google Scholar; Rosenstock, Robert, An International Criminal Responsibility of States? in International Law on the Eve of the Twenty-First Century, supra , at 265 Google Scholar; Triffterer, Otto, Prosecution of States for Crimes of State, 67 Revue Internationale de Droit Pénal 341 (1996)Google Scholar; Zemanek, Karl, New Trends in the Enforcement of ergs, omnes Obligations, 4 Max Planck Y.B. UN L. 1 (2000)Google Scholar.

51 Questions of the individual responsibility (whether civil or criminal) of state officials are reserved by Article 58. These are treated as distinct from state responsibility.

52 See Second Reading, supra note 2, Arts. 26(2) (a), 30, 46, 51 (1) (d).

53 See id., Arts. 41, 49, 54(1) & (2).

54 Article 42 subsumes this aspect of former Article 45, dealing with the award of substantial damages by way of satisfaction.

55 In addition to obligations on the responsible state, in cases of serious breaches of obligations to the international community as a whole, the revised draft retains the obligations placed on third states by former Articles 51–53, though in a consolidated and abridged form.

56 Reviewed in Third Report, supra note 10, Add.4, paras. 391–94.

57 Second Reading, supra note 2, Art. 54(2).

58 Id., Art. 54(1).

59 Id., Art. 54(3).

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