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The new draft articles of the International Law Commission on the responsibility of states for international wrongful acts: A requiem for states' crime?*

Published online by Cambridge University Press:  07 July 2009

Alain Pellet
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Extract

On Thursday 31 May 2001, the International Law Commission (ILC) adopted, by consensus, at the second reading, the draft articles on the responsibility of states for internationally wrongful acts. It has thus almost put an end to a saga which goes back more than seventy years to 1927 when a committee of experts constituted by the League of Nations decided to put the subject on the agenda of the Codification Conference of 1930, with very little success. As for the ILC, it put the subject on the agenda in 1955 before finally completing its investigation forty-six years and five Special Rapporteurs later.

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Articles
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Netherlands Yearbook of International Law , Volume 32 , December 2001 , pp. 55 - 79
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Copyright © T.M.C. Asser Press 2001

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References

1. This is a new title. The draft was previously entitled: ‘State responsibility’. This late but welcome change has the merit of clearly distinguishing, in languages other than English, responsibility for a wrongful act from liability for harmful consequences arising out of acts not prohibited by international law.

2. By its resolution 56/83 adopted without a vote on 12 December 2001, the General Assembly ‘takes note of the articles on responsibility of States for internationally wrongful acts, presented by the International Law commission, the text of which is annexed to the present resolution, and commends them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action’ (para. 3).

3. Cf., Rousseau, C., Droit international public, Vol. 1, Introduction et sources (Paris, Sirey 1971) p. 358Google Scholar or Pellet, A., ‘Remarques sur une révolution inachevée: le projet d'articles de la C.D.I, sur la responsibilité des Etats’, 42 AFDI (1996) p. 7.CrossRefGoogle Scholar

4. See the summary of the first stages of the examination of the subject in ILC Yearbook (1969) Vol. II, pp. 135–138, paras. 64–84.Google Scholar

5. In chronological order: Frederico V. Garcia Amador (1955–1961), Roberto Ago (1963–1979), Willem Riphagen (1980–1986), Gaetano Arangio-Ruiz (1987–1996) and James Crawford (1997–2001).

6. It is possible to speak in this case - but only in this case – of self-contained regimes; on this point see note by Simma, B., ‘Self-Contained Regimes’, 16 NYIL (1985) pp. 111–136CrossRefGoogle Scholar, or Gaetano, Arangio-Ruiz, Third Report on the responsibility of States, in ILC Yearbook (1992) Vol. II, Part One, pp. 32–33, paras. 84–88.Google Scholar

7. See the fifth report of Ago, R. on the responsibility of states, in ILC Yearbook 1976, Vol. II, Part One, pp. 24–54, paras. 72–155Google Scholar, and the report of the Commission, ibid, Part Two, pp. 95–122.

8. The draft articles on the responsibility of states adopted at the first reading by the ILC is reproduced in the report of the Commission on its 48th session in ILC Yearbook (1996) Vol. II, Part Two, pp. 125–151.Google Scholar

9. Ibid., p. 131.

10. See ibid., pp. 146–147.

11. See for example, the extremely critical article by Robert, Rosenstock, ‘An International Criminal Responsibility of States?’ in International Law at the Eve of the XXIst Century – Views from the International Law Commission (New York, United Nations 1997) pp. 265–285Google Scholar; see also the first report of J. Crawford on the responsibility of states, 1998, A/CN.4/490/Add.1, para. 51 and Add.3, paras. 86 and 92, and Barboza, J., ‘State Crimes: A Decaffeinated Coffee’ in de Chazournes, L. Boisson, Gowlland-Debbas, V. and Abi-Saab, G.M., eds., L'ordre juridique international, un système en quête d'équité et d'universalité - Liber Amicorum Georges Abi-Saab (The Hague, Martinus Nijhoff 2001) pp. 357–375.Google Scholar

12. On this second point, the current author has several doubts - see below, p. 78.

13. Crawford, J., Bodeau, P. and Peel, J., ‘La seconde lecture du projet d'articles sur la responsibilité des Etats et de la Commission du Droit International’, 104 RGDIP (2000) p. 931Google Scholar and ‘The ILC's Draft Articles on State Responsibility: Toward Completion of a Second reading’, 94 AJIL (2000) p. 672.Google Scholar

14. ‘International Crimes of State: The Legislative History’ in Weiler, J.H.H., Cassese, A. and Spinedi, M., eds., International Crimes of States: A Critical Analysis of the ILC's Draft Article 19 on State Responsibility, (Berlin, W. de Gruyter 1989) p. 52.CrossRefGoogle Scholar

15. See the analysis of Abi-Saab, G., ‘The Uses of Article 19’, 10 EJIL (1999) pp. 344–346.CrossRefGoogle Scholar

16. See for example, his first report on the responsibility of states, A/CN.4/490 Add.3, para. 81.

17. Ibid., Add. 1, para. 60 (iv).

18. Cf., Pellet, A., ‘La codification du droit de la responsibilité internationale - Tátonnements et affrontements’Google Scholar in Boisson de Chazournes et al., op. cit. n. 11, at pp. 301–302 and ‘Conclusions générales’ in S.F.D. I., Colloquium in Aix-en-Provence, , La codification du droit international (Paris, Pedone 1999) p. 335.Google Scholar

19. Cf., ILC Yearbook, Responsibility of States - Commentaries and observations received from governments, A/CN.4/488 and Add. 1 to 3, and the summary that J. Crawford gave in his first report on the responsibility of states, 1998, A/CN.4/490/Add.1, paras. 52–60.

20. See in particular Rosenstock, op. cit. n. 11, at pp. 276–284 or Barboza, op. cit. n. 11, at pp. 358–359.

21. See ILC Yearbook 1976, Vol. II., Part Two, para. 59 of the Commentary, pp. 118–119.Google Scholar

22. In its Judgment of 18 July 1966, the Court refused to ‘allow the equivalent of an actio popularis or right resident in any member of a community to take legal action in vindication of a public interest. But although a right of this kind may be known to certain municipal systems of law, it is not known to international law as it stands at present’ (ICJ Rep. (1966) p. 47).

23. Judgment of 5 February 1970, Barcelona Traction Light and Power Company, (second phase), ICJ Rep. (1970) p. 32.

24. A/CN.4/490/Add.3, para. 91.

25. Ibid., para.92.

26. Ibid., para. 101.

27. See the summary (which does not translate all the passion!) given in the ILC Report on the proceedings of its fiftieth session, 1998, General Assembly, Official Documents, 53rd session, supplement No. 10 (A/53/10), paras. 283–331.

28. For the abundant literature devoted to the international crime of the state, see Weiler et al. op. cit. n. 14, at p. 368 and the studies cited by Gaetano Arangio-Ruiz in his fifth report (A/CN.4/453 and Add. 1 to 3), J. Crawford, first report (A/CN.4/490/Add.1, fn. 29 and attached bibliography) and Dupuy, P.M., ‘Responsibilité et legalité’ in S.F.D.I., Colloquium in Le Mans, La responsabilité dans de système international (Pedone, Paris 1991) fn. 13, pp. 268–269.Google Scholar

29. ILC Report on the proceedings of its fiftieth session, supra para. 331.

30. See Pellet, A., ‘Vive le crime! Remarques sur les degrés de l'illicite en droit international’, in ILC, International Law, etc., op. cit. n. 11, at pp. 307–311Google Scholar or ‘Remarques sur une révolution inachevée: le projet d'articles de la C.D.I. sur la responsibilité des Etats’, AFDI (1996) p. 24.Google Scholar

31. A/CN.4/517, paras. 43–53.

32. Third report on the responsibility of states, A/CN.4/507/Add.4, para. 407.

33. Ibid., para. 410.

34. ILC report on the proceedings of its 52nd session, General Assembly, Official Documents, 55th session, supplement No. 10 (A/55/10), p. 120.

35. Draft article 41, para. 1.

36. ILC Report on the proceedings of its 52nd session, op. cit. n. 34, at pp. 124–140.

37. See the thematic summary of the debates, A/CN.4/513, paras. 89–121; the most determined opposition came from the large Western countries with the notable exception of Italy and the Scandinavian countries. However, some small states were equally worried about the consequences of the concept notably as regards countermeasures (see below, pp. 74–76).

38. Fourth report, A/CN.4/517, para. 53.

39. The full text is reproduced in the ILC Report to the General Assembly on the Work of its 53rd Session (A/56/10), pp. 43–59 and is annexed to A/RES/56/83 (see supra n. 2).

40. See infra, p. 72.

41. Even France, a traditional adversary of the concept, at least in the case of Art. 53 of the Vienna Convention of 1969 on the Law of Treaties, seems to have revised its opinion as has often been demonstrated recently, particularly the counter-proposals made by this country to the draft articles provisionally adopted by the ILC Drafting Committee in 2000. France has not systematically contested the provisions referring to jus cogens (Arts. 21 and 51 (d)) (A/CN.4/488, pp. 68 and 140).

42. See for example Bowett, D., ‘Treaties and State Responsibility’, in Virally, M., ed., Le droit international au service de la paix, de la justice et du développement: melanges Michel Virally, (Paris, Pedone 1991) p. 137–145Google Scholar; Weil, P., ‘Droit des traités et droit de la responsibilité’ in de Arachaga, E. Jimenez and Rama-Montaldo, M., eds., Le droit international dans un monde en mutation -Liber Amicorum en hommage au professeur Eduardo Jimenez de Arechaga (Montevideo, Fundacion de cultura internacional 1994) pp. 523–543Google Scholar; Dupuy, P.M., ‘Droit des traités, codification et responsibilité internationale’, 43 AFDI (1997) pp. 7–30CrossRefGoogle Scholar or Weckel, P., ‘Convergence du droit des traités et du droit de la responsibilité internationale’, RCDIP (1998) pp. 647–684.Google Scholar

43. Concerns of this nature had already been expressed by certain authors before the adoption of the final draft by the ILC, in particular Abi-Saab, loc. cit. n. 15, at pp. 348–349; or Pellet (1997) op. cit. n. 30, at p. 306.

44. See Art. 33, para. 1 (‘The obligations of the responsible State set out in this Part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation breached and on the circumstances of the breach’) and Art. 48, para. 1(b)) (‘Any State other than the injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (…) (b) The obligation breached is owed to the international community as a whole’.

45. Cf., Pellet (1996) op. cit. n. 30, at pp. 7–32, in particular pp. 10–13.

46. The ILC is correct to speak of breaches of ‘obligations’ and not of ‘norms’; the norms do not cause any obligation which could give birth to an internationally wrongful act - cf., Art. 2(b) of the draft.

47. It also gives place to the international criminal responsibility of the individual who is the perpetrator - cf., the judgment of the Chamber of first instance of the International Criminal Tribunal for Former Yugoslavia of 10 December 1998 in the case Furundzija, IT-95–17/1-T, which defines the prohibition of torture as a norm which is peremptory erga omnes (paras. 151–157).

48. Grand Chamber, judgment of 28 July 1999, Selmouni, request No. 25803/94.

49. See supra n. 47.

50. Document, ILC (XLVIII)/CRD, 4/Add. 1. See also paras. 9 to 12 of the Commentary of article 51 of the draft articles in ILC Yearbook 1996, Vol. II, Part Two, p. 70.

51. In a more general manner, the Commission refused to include in its draft a part relating to the settlement of disputes, partly for the same reason.

52. Arbitral Award of 9 December 1978, Agreement relating to air services of 27 March 1946 (USA v. France), RIAA, Vol. XVIII, p. 443, para. 81.

53. The author of this article is in favour of allowing the ILC draft articles ‘to live their life’ for several years before undertaking, if necessary, their adoption as a convention: time will permit the passions that some of its provisions (in general, the most ‘progressive’) still excite to wane, and to separate ‘good law from bad’.

54. On this point, the author has changed his position from that expressed several years ago in another article (cf., Pellet (1997) op. cit. n. 30, at pp. 294–296).

55. It is striking that the draft articles on responsibility adopted in 2001 make several references to the concept of peremptory norms of general international law; in addition to Arts. 40 and 41, see Arts. 26 and 50, para. 1(d).

56. See supra n. 31.

57. It goes without saying that, in the process of codification entrusted to the Commission, the states have the last word which is as it should be. But the ILC has the right and the duty to propose to the states, completely independently and in all conscience, drafts which are complete, consistent and take into consideration changes in the international community and its law. What happens subsequently with its drafts is no longer its own business.

58. See supra n. 38.

59. ‘An international crime entails all the legal consequences of any other internationally wrongful act and, in addition, such further consequences as are set out in articles 52 and 53.’ Text in ILC Yearbook (1996) Vol. II, Part Two, p. 70.Google Scholar

60. ‘Where an internationally wrongful act of a State is an international crime: (a) an injured state's entitlement to obtain restitution in kind is not subject to the limitations set out in subparagraphs c and d of article 43 [according to which the restitution would not involve a burden out of all proportion to the benefit which the injured State would gain from obtaining restitution in kind instead of compensation or would not seriously jeopardize the political independence or economic stability of the State which has committed the internationally wrongful act]; (b) an injured State's entitlement to obtain satisfaction is not subject to the restriction in paragraph 3 of article 45' (which prohibits the injured State from formulating ‘demands which would impair the dignity of the State which has committed the internationally wrongful act’) - text ibid.

61. A/CN.4/507/Add.4, para. 408.

62. See n. 12.

63. The previous Art. 53 distinguished between the obligation ‘to cooperate with other States in carrying out the obligations under subparagraphs a and b’ (obligations of non-recognition and non-assistance) (paragraph c) and that of ‘to cooperate with other States in the application of measures designed to eliminate the consequences of the crime’ (paragraph d). That was uselessly complicated and, in any case, paragraph c had no real substance distinct from that of paragraphs a and b.

64. Which, for that matter, does not exist in internal law either from which it is excluded by the idea that no one is supposed to mete out justice to himself; conversely, at the heart of the state, citizens have an obligation to cooperate with the forces of order and justice (as states must lend their aid to the Security Council in the excercise of its principal responsibility in the matter of maintaining peace and international security), but this is no longer a problem of the law of responsibility but of maintaining pubic order.

65. The current author is not convinced, in the circumstances in which it took place, that the NATO operation cannot be seen as lawful (see Pellet, A. ‘La guerre du Kosovo - Le fait rattrapé par le droit’, 1 Forum du Droit international (1999) pp. 160–165).CrossRefGoogle Scholar

66. Cf., Rosenstock, op. cit. n. 11, at p. 284.

67. See n. 54.

68. Cassese, A., ‘Remarks on the Present Legal Regulation of Crimes of States’, in Le Droit international a l'heure de sa codification - Etudes en l'honneur de Roberto Ago (Milan, Giuffre 1987) p. 50.Google Scholar

69. Ibid.

70. See Coulée, F., Droit des traités et non-réciprocité - Recherches sur l'obligation intégrale en droit international public, thesis (Paris II 1999).Google Scholar

71. If ‘the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group’ (para. a).

72. Para. b.

73. The Commission had left in abeyance the question of assurances and guarantees of non-repetition pending the judgment of the ICJ in the La Grand (Germany v. USA) case (see document A/CN.4/L.602, notes 6 and 8); after the judgment was given, on 27 June 2001, the Commission definitely adopted this formulation even though it can be maintained that it does not fit with the Court's Judgment which implies that assurances and guarantees of non-repetition are part of the satisfaction (see e.g., paras. 121–127 of the Judgment).

74. See in particular, the examples of countermeasures by states not directly injured (which the Special Rapporteur incorrectly terms ‘collective countermeasures’) in the third report of James Crawford on the responsibility of states, A/CN.4/507/Add. 4, paras. 391–394).

75. A/CN.4/507/Add.4, para. 409; but see n. 84.

76. Draft article 50B, ibid., para. 413.

77. See the ILC Report on the proceedings of its 52nd session, General Assembly, Official Documents, 55th session, supplement No. 10 (A/55/10), p. 120.

78. The terms of paragraph 2 of this provision: ‘Satisfaction may take the form of one or more of the following: (…) c) in cases of gross infringement of the rights of the injured State, damages reflecting the gravity of the infringement’ - text in ILC Yearbook (1996) Vol. II, Part Two, p. 63.Google Scholar

79. Cf., the fourth report. See however, the second report on the responsibility of states by Professor Gaetano, Arangio-Ruiz in ILC Yearbook (1989) Vol. II, Part One, p. 41, paras. 139–140.Google Scholar

80. On this point see above, p. 58

81. See n. 78.

82. Fourth report, A/CN.4/517, para. 45.

83. But this should not allow a mechanism of the ‘civil’ type to be seen in international responsibility. See n. 17.

84. See the thematic summary of the debates of the Sixth Committee during the 55th session of the General Assembly, A/CN.4/513, paras. 110–112.

85. Text in the ILC Report on the proceedings of the 52nd session, General Assembly, Official Documents, 55th session, supplement No. 10 (A/55/10), p. 139.

86. Ibid.

87. Cf., the thematic summary of the debate in the Sixth Committee during the 55th session of the General Assembly, A/CN.4/513, paras. 174–182.

88. See the ambiguous defence of this provision by the Special Rapporteur in his fourth report, A/CN.4/517, paras. 70–74.

89. A note at the bottom of the page stated: ‘The term “crime” is used for consistency with article 19 of part one of the articles. It was, however, noted that alternative phrases such as “international wrongful act of a serious nature” or “an exceptionally serious wrongful act” could be substituted for the term “crime”, thus, inter alia, avoiding the penal implication of the term.’

90. Text in ILC Yearbook 1996, Vol. II, Part Two, p.63.Google Scholar

91. Ibid.

92. See supra p. 72.

93. See ibid.

94. For the complete text see supra p. 68.

95. This specific safeguard clause is additional to those in Part Four. Art. 55 (‘Lex specialis’) preserves the applicability of special rules relating to the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a state. (In his contribution to Festschrift Roberto Ago - see supra n. 68 -Antonio Cassese, on the basis of practice, demonstrated superbly the principles especially applicable to serious breaches of obligations essential for safeguarding the right of peoples to self-determination - pp. 51–54 - and of those relating to the protection of fundamental human rights - pp. 54–62). Moreover, in pursuance of Art. 56, ‘the applicable rules of international law continue to govern questions concerning the responsibility of a State for an internationally wrongful act to the extent that they are not regulated by these articles’.

96. See Pellet (1997) op. cit. n. 30, at pp. 310–312.

97. Contra Barboza, op. cit. n. 11, p. 360, fn. 10.

98. See supra p. 60.

99. See supra pp. 70–71.

100. This concept could have been omitted from the draft: in so far as it raises the issue of Charter law and not that of responsibility.

101. See supra p. 76.

102. ‘The wrongfulness of an act of a State is precluded if the act required in the circumstances by a peremptory norm of general international law’ - text in ILC Report on the proceedings of its 52nd session, General Assembly, Official Documents, 55th session, supplement No. 10 (A/55/10), p. 129.

103. This is also done by Art. 51, para. 1, which is particularly poorly drafted and which concerns countermeasures: ‘Countermeasures shall not involve any derogation from: (a) The obligation to refrain from the threat or use of force as embodied in the Charter of the United nations; (b) Obligations for the protection of fundamental human rights; (c) Obligations of a humanitarian character prohibiting any form of reprisals against persons protected thereby; (d) Other obligations under peremptory norms of general international law; (e) Obligations to respect the inviolability of diplomatic or consular agents, premises, archives and documents.’

104. It is not without interest to note that the last two ILC Special Rapporteurs on the subject, both of whom were more than sceptical in this respect at the beginning, have finally been won over, if not to the word at least to the idea. This is to their credit.