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The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect

Published online by Cambridge University Press:  27 February 2017

James Crawford
James Crawford*
Affiliation:
University of Cambridge
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Extract

The development of the articles on state responsibility of the International Law Commission (ILC) has been described elsewhere, in particular in the ILC’s Yearbook. The phases of development of the first (1955-1996) andsecond (1998-2001) readings are well enough known, and there is little point in repeating this material. Whatever the trials and longueurs of their production, the articles with their commentaries now exist and may be assessed as a whole.

The first reading was the product of decades of work under successive special rapporteurs (Roberto Ago, Willem Riphagen, and Gaetano Arangio-Ruiz). The second readingwas equally a collective process and many members contributed to the final result. As I was formally responsible for shaping the work on second reading, I may not be the best person to comment on the outcome. Anything less than a full-scale defense of the text will be seen as an unauthorized retreat, and if the text cannot defend itself with the aid of the commentaries, it is too late for individuals to make up for any deficiencies.

Type
Research Article
Information
American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 874 - 890
Copyright
Copyright © American Society of International Law 2002

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References

1 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.un.org/law/ilc>. The final text with commentary and apparatus is in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002). References to, and quotations of, the articles, as well as the official ILC commentaries to the articles, which also appear in the Commission’s Fifty-third Report, supra, will be identified below by article and paragraph number.

2 See Crawford, James, On Re-reading the Draft Articles on State Responsibility, 92 ASIL Proc. 295 (1998)Google Scholar; Crawford, James, Revising the Draft Articles on State Responsibility, 10 Eur. J. Int’l L. 435 (1999)Google Scholar; Crawford, James, Bodeau, Pierre, & Peel, Jacqueline, The ILC’s Draft Articles on State Responsibility: Toward Completion of a Second Reading, 94 AJIL 660 (2000)Google Scholar; Crawford, James, Peel, Jacqueline, & Olleson, Simon, The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading, 12 Eur. J. Int’l L. 963 (2001)CrossRefGoogle Scholar.

3 In his contribution to this symposium, David Caron points out in general terms the interaction between ILC and government Representatives. As will be clear from the text, I do not agree with his view that “relatively few governments offered comments on ILC drafts.” David, D. Caron, The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority, 96 AJIL 857, 865 (2002)Google Scholar.

4 E.g., Article 53 (termination of countermeasures), which was first suggested by France in 1999.

5 See the contribution to this symposium by David Bederman for this process as it affected the articles on countermeasures. David, J. Bederman, Counterintuiting Countermeasures, 96 AJIL 817 (2002)Google Scholar. In fact, government comments on the countermeasures articles were of greater significance than the Court’s statements, useful as the latter were in providing support and occasional language for the text.

6 Fifty-two statements were made. Two of these were made on behalf of groups of states (Norway on behalf of the Nordic Group, and South Africa on behalf of the Southern African Development Community (SADC)).

7 Bodansky, Daniel & John, R. Crook, Introduction and Overview, 96 AJIL 773, 773, 790 (2002)Google Scholar.

8 Commentaries, para. 2 (quoting Roberto Ago, Second Report on State Responsibility, [1970] 2 Y.B. Int’l L. Comm’n 177, 306, UN Doc. A/CN.4/SER.A/1970/Add.1).

9 Bodansky & Crook, supra note 7, at 780 n.51.

10 For an account in the field of civil obligations, emphasizing the interweaving of theory and practice, see David Ibbetson, A Historical Introduction to The Law of Obligations (2001).

11 Brownlie, Ian, Causes of Action in the Law of Nations, 1979 Brit. Y.B. Int’l. L. 13 Google Scholar, is an exercise in classification, not historical exegesis.

12 [1957] 1 Y.B. Int’l L. Comm’n 154-68, UN Doc. A/CN.4/SER.A/1957 (413th-416th meetings).

13 Commentary to pt. 1, ch. IV, para. 1.

14 Article 102 of the UN Charter says that treaties and international agreements entered into by member states “shall as soon as possible be registered with the Secretariat.” It has never been suggested that noncompliance with Article 102 produces responsibility. Compare, however, The Charter of The United Nations: A Commentary 1282 (Bruno Simma ed., 2d ed. 2002): “Art. 102 contains an absolute obligation on UN members and does not have a discretionary character. . . . Art. 102 must not be misunderstood as a mere provision setting out the conditions under which an international agreement may be invoked before an organ of the UN” (footnote omitted). This text fails to discuss the consequences of noncompliance, other than the inability to invoke the treaty or agreement before any organ of the United Nations.

15 Bodansky & Crook, supra note 7, at 781 (footnote omitted).

16 Certain French authors, e.g., Brigitte Stern, Le Préjudice Dans la Théorie de la Responsabilité Internationale (1973), have argued for such a general rule, as did France in its commentaries on the draft articles. In truth, however, the range of possible situations of breach escapes classification in terms of any noncircular definition of “damage,” as the Rainbow Warrior arbitration showed. Rainbow Warrior (NZ/Fr.), 20 R.I.A.A. 217, 266-67, paras. 107-10 (1990).

17 Article 1(1) provides:

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1460 UNTS 112 (emphasis added).

18 Art. 55 (“Lex specialis”).

19 Bodansky & Crook, supra note 7, at 781 (footnotes omitted).

20 James Crawford, Second Report on State Responsibility, UN Doc. A/CN.4/498, para. 9 (1999) [hereinafter Crawford, Second Report]; Report of the International Law Commission on the Work of Its Fifty-first Session, UN GAOR, 54th Sess., Supp. No. 10, paras. 82-86, UN Doc. A/54/10 (1999).

21 Vienna Convention on the Law of Treaties, opened for signature May 23,1969, Arts. 40-41, 58-59, 1155 UNTS 331, none of which are contained in the section on the validity of treaties.

22 It is often argued that the European Union is such a régime, and in good weather so it may be. But the underpinnings of EU law still seem to be international treaties ultimately functioning as such. See, e.g., Trevor, C. Hartley, International Law and the Law of the European Union—A Reassessment, 2001 Brit. Y.B. Int’l L. 1 Google Scholar.

23 Except a peremptory norm of general international law. A group of states could not allow themselves, behind the walls of a self-contained régime, to enslave or torture people. Presumably, all self-contained régimes are subject to this limitation (in which case they are not self-contained). See also Commentaries, Art. 55, para. 2.

24 Id., para. 4.

25 Bodansky & Crook, supra note 7, at 781.

26 Outright deletions were draft Articles 2, 11, 12, 13, 19, 20, 21, 23, and part 3 (settlement of disputes). Crawford, supra note 1, at 343-45. For the evolution of other articles, see id. at 315-38.

27 See Crawford, James, The Standing of States: A Critique of Article 40 of the ILC’s Draft Articles on State Responsibility, in Judicial Review in International Perspective: Liber Amicorum in Honour of Lord Slynn of Hadley 23 (Andenas, Mads ed., 2000)Google Scholar.

28 See the contribution to this symposium by Edith, Brown Weiss, Invoking State Responsibility in the Twenty-first Century, 96 AJIL 798, 802-03 (2002)Google Scholar.

29 Commentaries, Art. 48, para. 11.

30 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, 56, para. 127 (June 21).

31 Weiss, supra note 28, at 800.

32 Commentaries, Art. 42, para. 2 (footnotes omitted).

33 Bederman, supra note 5, at 819.

34 Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 7, 56, para. 85 (Sept. 25).

35 Bederman, supra note 5, at 822 (footnote omitted).

36 Not even the tribunal in the Naulilaa arbitration, which nonetheless proceeded on the assumption that forcible countermeasures were lawful at the time. Responsibility of Germany for Damage Caused in the Portuguese Colonies in the South of Africa (Port. v. Ger.), 2 R.I.A.A. 1011, 1027-28, 4 ILR 526, 527 (1928).

37 Air Services Agreement of 27 March 1946 (U.S.v.Fr.), 18R.I.A.A.417 (1978) [hereinafter Air Services Agreement Award].

38 Commentaries, Art. 51, para. 6.

39 Bederman, supra note 5, at 822.

40 Art. 53 (termination of countermeasures).

41 Air Services Agreement Award, supra note 37,18 R.I.A.A. at 445-46, paras. 91, 94-96, cited in Commentaries, Art. 52, para. 3.

42 Bederman, supra note 5, at 826.

43 In its order of July 10, 2002, in Armed Activities on the Territory of the Congo (Congo v. Rwanda), available at <http://www.icj-cij.org>, the Court declined provisional measures on grounds of probable lack of jurisdiction, but nonetheless retained the case on the list. There is practically speaking no chance that jurisdiction will be upheld, but meanwhile the dispute is in some sense “pending” before the Court, and it will presumably take some time (up to two years) before a final decision on jurisdiction. Despite many reforms in the Court’s practice and procedure, notably under the presidency of Judge Gilbert Guillaume, this example highlights the problem of the absence of any summary procedure before the Court.

44 According to the commentary, Article 52(3) “is based on the assumption that the court or tribunal to which it refers has jurisdiction over the dispute and also the power to order provisional measures.” Commentaries, Art. 52, para. 8. Arguably, where there is not even an appearance of jurisdiction, the court is not in a position to deal with the case on the merits, and the obligation to suspend countermeasures would not apply. In that case, we might say, it is only the dispute over jurisdiction that is “pending” before the court.

45 James Crawford, Third Report on State Responsibility, UN Doc. A/CN.4/507/Add.4, para. 413 (2000) [hereinafter Crawford, Third Report]; Report of the International Law Commission on the Work of Its Fifty-second Session, UN GAOR, 55th Sess., Supp. No. 10, at 108-09, UN Doc. A/55/10 (2000).

46 See further Koskenniemi, Martti, Solidarity Measures: State Responsibility as a New International Order? 2001 Brit. Y.B. Int’l.L. 337 Google Scholar.

47 Bederman, supra note 5, at 826, 832.

48 Cf. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep. 15 (May 28); Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (Dec. 18).

49 1 John, Bassett Moore, International Arbitrations To Which The United States Has Been a Party 495 (1898)Google Scholar.

50 1932 App. Cas. 562 (appeal taken from Scot.).

51 Although this has been denied. Legrand, Pierre, European Legal Systems Are Not Converging, 45 Int’l & Comp. L.Q. 52 (1996)Google Scholar.

52 For example, in relation to each of causation, solidary responsibility, and inducing breach of contract. See, respectively, Crawford, Third Report, supra note 45, UN Doc. A/CN.4/507, paras. 27-30; id, UN Doc. A/CN.4/507/ Add.2, para. 263 n.489; Crawford, Second Report, supra note 20, annex (Add.3), passim.

53 Weiss, supra note 28, at 809.

54 Id. at 816.

55 Under former Article 40, there might be some or many injured states, but the implication was that each was separately injured and no provision was made to deal with the situation of a plurality of injured states.

56 LaGrand Case (Ger. v. U.S.), Merits (Int’l Ct. Justice June 27, 2001), available at <http://www.icj-cij.org>.

57 Id., paras. 77, 78; cf Separate Opinion of Vice-President Shi.

58 Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928 PCIJ (ser. B) No. 15, at 17-19 (Mar. 3), a decision not referred to in LaGrand. On the issue as it relates to rights under European Union law, see Wyatt, Derek, New Legal Order or Old? 7 Eur. L. Rev. 147 (1982)Google Scholar; Spiermann, Ole, The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order, 10’ Eur. J. Int’l L. 763 (1999)Google Scholar.

59 Mavrommatis Palestine Concessions (Greece v. UK), Jurisdiction, 1924 PCIJ (ser. A) No. 2, at 12 (Aug. 30).

60 See also Weiss, supra note 28, at 815 (briefly noting this possibility).

61 See Report of the Working Group on Responsibility of International Organizations, UN Doc. A/CN.4/L.622 (2002), and the debate in UN Doc. A/CN.4/SR.2740 (2002). Professor Giorgio Gaja is the special rapporteur on this new topic.

62 See the Reports by Special Rapporteur John R. Dugard, First Report on Diplomatic Protection, UN Doc. A/CN.4/506 & Add.1 (2000); Second Report on Diplomatic Protection, UN Doc. A/CN.4/514 (2001); Third Report on Diplomatic Protection, UN Doc. A/CN.4/523 & Add.1 (2002).

63 South West Africa cases (Eth. v. S. Afr.; Liber, v. S. Afr.), Second Phase, 1966 ICJ Rep. 6 (July 18). The commentary to Article 48, para. 7 n.766 makes it clear that there is a “deliberate departure” from that decision.

64 Commentaries, Art. 25, para. 18.

65 Caron, supra note 3, at 857, 858.

66 Id. at 873.

67 On the rather strict conditions for the application of the Vienna Convention, supra note 21, as a treaty, see Article 4. In the Gabčíkovo-Nagymaros Project case, supra note 34, the Vienna Convention did not apply qua treaty to the 1977 bilateral treaty that was principally at stake in that case; it did apply qua treaty to an amendment of 1989. There is no indication that this made any difference. See 1997 ICJ Rep. at 38, para. 46. For the most part, the Vienna Convention has been applied to treaties concluded long before. See, for example, Kasikili/Sedudu Island (Bots./ Namib.), Merits, 1999 ICJ Rep. 1045,1059-60 (Dec. 13), applying Article 31 of the Vienna Convention to a treaty dating from 1890.

68 Caron, supra note 3, at 865-66.

69 GA Res. 55/153 (Jan. 30, 2001), available at <http://www.un.org/docs>.