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The ILC and State Responsibility

Published online by Cambridge University Press:  27 February 2017

Robert Rosenstock
Robert Rosenstock*
Affiliation:
International Law Commission
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Extract

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.

Type
Symposium: The ILC’s State Responsibility Articles
Information
American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 792 - 797
Copyright
Copyright © American Society of International Law 2002

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References

1 Allott, Philip, State Responsibility and the Unmaking of International Law, 29 Harv. Int’l. L. J. 1, 2 (1988)Google Scholar.

2 See, e.g., Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 7, 38-41 (Sept. 25); M/V “Saiga” (No. 2) (St. Vincent & the Grenadines v. Guinea) (Int’l Trib. Law of Sea July 1, 1999), 38 ILM 1323 (1999).

3 For a survey of some of the debate, see Richard, B. Lillich, The Current Status of the Law of State Responsibility for Injuries to Aliens, in International Law of State Responsibility for Injuries To Aliens 1 (Richard, B. Lillich ed., 1983)Google Scholar.

4 See cases cited in note 2 supra.

5 The membership of fifteen, established by the ILC Statute, annex to General Assembly Resolution 174 (II) of November 21,1947, was expanded to twenty-one by General Assembly Resolution 1103 (XI) of December 18,1956; to twenty-five by General Assembly Resolution 1647 (XVI) of November 6,1961; and to its current thirty-four by General Assembly Resolution 36/39 of November 18, 1981.

6 Higgins, Rosalyn, Problems and Process: International Law and How We Use It 148 (1994)Google Scholar.

7 Chapter V of part 1 of the articles contains six “circumstances precluding wrongfulness”: consent (Art. 20), self-defense (Art. 21), countermeasures (Art. 22), force majeure (Art. 23), distress (Art. 24), and necessity (Art. 25). 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> [hereinafter ILC 53d Report], Reprinted in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002). References below to the articles and the official ILC commentaries to the articles, which appear in the Commission’s 53d Report and Crawford’s volume, supra, will be to article and paragraph number.

8 Arts. 49-54.

9 Commentary to part 1, ch. V, para. 2.

10 Lowe, Vaughan, Precluding Wrongfulness or Responsibility: A Plea for Excuses, 10 Eur. J. Int’l L. 405 (1999)CrossRefGoogle Scholar.

11 Robert, Q. Quentin-Baxter, Third Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, [1982] Google Scholar2 Y.B. Int’l L. Comm’n, pt. 1, at 60, UN Doc. A/CN.4/SER.A/ 1982/Add.l (Parti).

12 For discussion and the text of the articles with commentary, see ILC 53d Report, supra note 7, paras. 78-98.

13 Convention on the Law of the Non-Navigational Uses of International Watercourses, May 21, 1997, 36 ILM 710 (1997).

14 Riphagen, Willem, Seventh Report on Sate Responsibility, [1986] 2 Y.B. Int’l L. Comm’n, pt. 1, at 1, 5 Google Scholar, UN Doc. A/CN.4/SER.A/1986/Add.l (Part 1).

15 Gaetano Arangio-Ruiz, Fifth Report on State Responsibility, [1993] 2Y.B. Int’l L. Comm’n, pt. 1, at 1, UN Doc. A/CN.4/SER.A/1993/Add.1 (Part I).

16 Id. at 27, para. 105.