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8 - Trail Smelter and the International Law Commission's Work on State Responsibility for Internationally Wrongful Acts and State Liability

Published online by Cambridge University Press:  08 September 2009

Mark A. Drumbl
Affiliation:
Associate Professor, Washington & Lee University
Rebecca M. Bratspies
Affiliation:
City University of New York
Russell A. Miller
Affiliation:
University of Idaho
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Summary

INTRODUCTION

On August 9, 2001, the International Law Commission (ILC) adopted Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Draft Articles) together with detailed Commentaries. The Draft Articles – the product of nearly fifty years' work – represent an important step in the codification and development of international law. In their preface, the Commentaries describe the Draft Articles as comparable in significance to the 1966 Draft Articles on the Law of Treaties that became, with limited changes, the 1969 Vienna Convention on the Law of Treaties.

State responsibility involves the consequences to states of their internationally wrongful activities. Draft Article 1 stipulates that every internationally wrongful act of a state entails the international responsibility of that state. Internationally wrongful acts take two forms: (1) breach of an international obligation of the state; or (2) a serious breach of an obligation under a peremptory norm of general international law.

Professor James Crawford was Special Rapporteur for State Responsibility of the ILC at the time of the second reading of the Draft Articles. On December 12, 2001, the United Nations General Assembly adopted Resolution 56/83, which “commend[s the Draft Articles] to the attention of governments without prejudice to the question of their future adoption or other appropriate action.” Assuredly, the Draft Articles already have exerted considerable impact as a subsidiary means of determining the content of international law; they already have been relied on by the International Court of Justice.

Type
Chapter
Information
Transboundary Harm in International Law
Lessons from the Trail Smelter Arbitration
, pp. 85 - 98
Publisher: Cambridge University Press
Print publication year: 2006

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