In August 2001, the International Law Commission (ILC) adopted its “Draft Articles on the Responsibility of States for Internationally Wrongful Acts,” bringing to completion one of the Commission’s longest running and most controversial studies. On December 12, 2001, the United Nations General Assembly adopted Resolution 56/83, which “commend [ed the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.”

The handling by the International Law Commission (ILC) of state responsibility, hazardous activities, and strict liability reveals in many ways the Commission’s strengths and limitations. This work also tells much about the development of international law and the extent to which there is—or is not—an international community. The Commission’s work on state responsibility in particular also illustrates the validity of Holmes’s immortal statement about logic and the life of the law, the utility of Occam’s razor, and the value of William James’s pragmatism. Even if Philip Allott were close to the mark—as he often is—in calling the draft articles, as they then were, “bland gruel,” it is hard to ignore the need for the articles or their contribution to the unification of international law. Both are witnessed by tribunals’ eagerness to cite the Commission’s texts even before their formal adoption. While this practice has upset some as premature, it reflects the symbiotic process that has evolved over time as both the Commission and courts and tribunals labor to clarify existing law. Codification of lex lata may be no less effective if contained in a paragraph of a report rather than in an article of a multilateral treaty.

At the beginning of the twenty-first century, the international community is globalizing, integrating, and fragmenting, all at the same time. States continue to be central, but many other actors have also become important: international organizations, nongovernmental organizations, corporations, ad hoc transnational groups both legitimate and illicit, and individuals. For the year 2000, the Yearbook of International Organizations reports that there were 922 international intergovernmental organizations and 9988 international nongovernmental organizations. If organizations associated with multilateral treaty agreements, bilateral government organizations, other international bodies (including religious and secular institutes) , and internationally oriented national organizations are included, the number of international organizations reaches nearly thirty thousand. Another twenty-four thousand are listed as inactive or unconfirmed. Corporations that produce globally are similarly numerous. As of September 27, 2002, an estimated 6,252,829,827 individuals lived on our planet. Some of these individuals and groups have made claims against states for breaching their obligations, particularly for human rights violations. In short, international law inhabits a much more complicated world than the one that existed fifty or even thirty years ago.

The adoption in August 2001 by the International Law Commission (ILC) of its articles on responsibility of states for internationally wrongful acts well and truly brings to a close the twentieth century’s engagement with international law as (in Martti Koskenniemi’s memorable refashioning of George Kennan’s savage critique) a “gentle civilizer of nations.” Including the entry into force of the Rome Statute of the International Criminal Court, the seven pillars of international legal codification have been completed with some form of assistance by the ILC: diplomatic immunities, the law of the sea, a comprehensive law of treaties, the Nuremberg Principles, andjurisdictional immunities of states. Indeed, the articles on state responsibility may represent an even greater methodological challenge for international law codification because they pose fundamental questions regarding the identity and nature of states. Like the Montevideo Convention on Rights and Duties of States and the ILC’s own somewhat obtuse efforts on the international law of state succession, the articles on state responsibility go to the intellectual core of public international law by delimiting the character of states and the nature of their obligations when they interact with other international actors. Perhaps, then, it is no surprise that the ILC’s journey into that doctrinal realm took over half a century, and consumed the attention of five special rapporteurs and countless Commission members.

The International Law Commission’s articles on reparations restate the existing law on remedies, but they also innovate in significant ways to reinforce broader community interests in international legality. Given the dearth of precedents on reparations, both aspects can be helpful to tribunals and parties engaged in traditional interstate litigation, but the progressive elements, if they are accepted by states, could have wider application in supporting mechanisms to enhance implementation and observance of international obligations. The combination of codification and progressive development, however, is sometimes an uneasy fit and leaves unanswered several important questions about the theoretical foundation and practical application of the law of reparations. Even the seeming clarity of the articles is deceptive because some of the concepts included in the broadly drafted provisions can be difficult to apply in practice.

The adoption by the International Law Commission (ILC) in 2001 of its articles on state responsibility is an achievement that presents a paradox. This essay is about the form and authority of the articles, and the paradox that they could have more influence as an ILC text than as a multilateral treaty. The essay addresses the questions of the appropriate authority to be given an ILC text, why undue influence may be attributed to an ILC text (particularly by arbitral tribunals), and how an arbitral tribunal should approach interpreting and applying the articles on state responsibility.

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.

The United Nations Convention on Conventional Weapons (CCW) of 1980 regulates the use in armed conflict of certain conventional arms deemed to cause excessive suffering to combatants or indiscriminate harm to civilian populations. In December 2001, CCW high contracting parties concluded a Second Review Conference of the Convention in Geneva. Unlike the First Review Conference of 1995-1996, which focused on land mines and blinding laser weapons, the Second Review Conference attracted modest public and media attention. This difference was due in part to the fact that the conference principally focused on an improvement of the Convention thatwasjuridicalin nature, lacking an “optical” quality typically associated with proposals to restrict particular weapon systems. Even so, the conference generated substantial governmental interest and a remarkable development in international humanitarian law: expansion of the scope of application of the Convention, previously limited to conflicts between sovereign states, to noninternational armed conflicts. This expanded scope, if widely observed, should influence the use of particular weapons in internal armed conflicts. More important, the expansion reinforces the trend toward reducing the distinction between international and noninternational armed conflicts for purposes of the rules governing the conduct of hostilities. This trend carries implications both for which weapons are used in warfare and how, and for the international criminalization of violations of the rules of noninternational armed conflict.

At the conclusion of the 1991 UN enforcement action against Iraq, the Security Council adopted a resolution setting the terms for a cease-fire. The resolution required, among other things, that Iraq “unconditionally accept the destruction, removal, or rendering harmless, under international supervision,” of all chemical and biological weapons, all ballistic missiles with a range greater than 150 kilometers, and associated materials and facilities. Further, the resolution provided for the creation of a UN special commission to carry out “on-site inspection of Iraq's biological, chemical and missile capabilities,” and ordered Iraq to yield such weapons to the commission for “destruction, removal or rendering harmless.” Similar requirements were imposed with respect to the acquisition and development of nuclear weapons. While maintaining the economic sanctions imposed on Iraq after its invasion of Kuwait in August 1990, the Security Council allowed exports to Iraq of foodstuffs and medical supplies (on the condition that a UN sanctions committee had been notified) and also other commodities (if approved by the same committee). The Security Council decided that the sanctions regime would be lifted, however, once Iraq complied with its obligations on the destruction and monitoring of weapons of mass destruction.