The International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts Adopted on Second Reading

Leiden Journal of International Law

Volumn 15, Issue 4, 2002, Pages 891-919

  Wittich, Stephan ^a  

^a UNIVERSITY OF VIENNA   (Austria)

Author keywords

articles on state responsibility; codification and progressive development; International Law Commission

Indexed keywords

EID: 85011463066     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156502000390     Document Type: Article

References (80)

1. The text of the Articles and the commentaries thereto are reproduced in Report of the International Law Commission on the Work of its Fifty-third session, UN Doc. A/56/10, paras. 76 and 77 (2001). See http://www.un.org/law/ilc.
2. UN Doc. A/RES/56/83 (2001).
3. Report of the ILC on the Work of its 48th Session, 1996 YILC, Vol. II (Part Two), 1, at 58.
4. See J. Crawford, First Report on State Responsibility, UN Doc. A/CN.4/490 and Add. 1-7 (1998); J. Crawford, Second Report on State Responsibility, UN Doc. A/CN.4/498 and Add. 1-4 (1999); J. Crawford, Third Report on State Responsibility, UN Doc. A/CN.4/507 and Add. 1-4 (2000); J. Crawford, Fourth Report on State Responsibility, UN Doc. A/CN.4/517 and Add. 1 (2001).
5. For comments on the second reading see J. Crawford, Revising the Draft Articles on State Responsibility, 10 EJIL 435 (1999); J. Crawford & P. Bodeau, Second Reading of the Draft Articles on State Responsibility: A Progress Report, 1 ILF 44 (1999); J. Crawford & P. Bodeau, Second Reading of the I.L.C. Draft Articles on State Responsibility: Further Progress, 2 ILF 45 (2000); J. Crawford, P. Bodeau & J. Peel, The ILC's Draft Articles on State Responsibility. Toward Completion of a Second Reading, 94 AJIL 660 (2000); J. Crawford, J. Peel & S. Olleson, The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading, 12 EJIL 963 (2001); J. Crawford, The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries 1-60 (2002). A valuable comparison of the text of the Articles at the various stages in 1996, 2000 and 2001 as well as the proposals of the Special Rapporteur during the process of the second reading is provided by G. Hafner, The Draft Articles on the Responsibility of States for Internationally Wrongful Acts-The Work of the International Law Commission, 5 ARIEL 189-270 (2000).
6. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Judgment of 27 July 1986, 1986 ICJ Rep. 14, at 62, para. 109 and at 65, para. 115 (emphasis added).
7. Commentary to Article 8, para. (3).
8. Commentary to Article 8, para. (5).
9. Unless of course there is a lex specialis rule on the subject, which however was neither argued by the ICTY nor is it stated in the commentary with regard to the discrepancy between the two approaches in Nicaragua and Tadíc.
10. Commentary to Article 11, para. (1). Cases of acknowledgement and adoption are to be distinguished from cases of mere support, approval or endorsement of ‘private’ conduct. This is indicated by the phrase “acknowledges and adopts the conduct in question as its own”, see id., at para. (6) (emphasis added).
11. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 24 May 1980, 1980 ICJ Rep. 3, at 35, para. 74. Note, however, that the Court found Iran already responsible for its failure to take any appropriate steps to prevent an attack against the premises and the staff or to compel the militants to withdraw and to free the staff, see id., at 31-33, paras. 63-68. While the Court considered the later acknowledgement and adoption a separate violation of international law, such prior responsibility is not necessary for the purposes of Art. 11. See commentary to Article 11, para. (4).
12. Cf. Crawford, Second Report, Case Concerning United States Diplomatic and Consular Staff in Tehran note 5, at paras. 141-147. See also S. Wittich, Direct Injury and the Incidence of the Local Remedies Rule, 5 ARIEL 121, at 165-167 (2000).
13. Commentary to Article 12, paras. (3)-(10). In the first reading text, these two aspects were dealt with in Arts. 17(1) and 19(1).
14. See, e.g., Elettronica Sicula S.p.A. (ELSI) (USA v. Italy), Judgment of 20 July 1989, 1989 ICJ Rep. 15, at 46-48, paras. 59-63. See, generally, C.F. Amerasinghe, Local Remedies in International Law 319-358 (1990).
15. See commentary to Article 19, paras. (1)-(4).
16. This intention of Art. 25 is affirmed by the commentary to Article 25, para. (2), which provides that “necessity consists […] in a grave danger either to the essential interest of the State or of the international community as a whole.”
17. The initial proposal of the Special Rapporteur was quite different. He proposed as an additional circumstance precluding wrongfulness the case that the wrongful act is required in the circumstances by a peremptory norm of general international law. See Crawford, Second Report, This intention of Art. 25 is affirmed by the commentary to Article 25 note 5, at paras. 306-313.
18. See commentary to Article 50, para. (9).
19. By contrast, the Special Rapporteur proposed to limit the issue of compensation to distress and necessity, see Crawford, Second Report, commentary to Article 50 note 5, at paras. 341-345.
20. Similarly, though with respect to former Art. 35, K. Zemanek, The Legal Foundations of the International System, 266 RCADI 9, at 264-165, para. 551 (1997). A further problem is that Art. 19 is not in tune with Art. 27(2).
21. See former Art. 46 and G. Arangio-Ruiz, Second Report on State Responsibility, UN Doc. A/CN.4/425, 1989 YILC, Vol. II(1), 1, at 56, para. 191, Art. 10.
22. Commentary to Article 30, para. (1).
23. Id., at paras. (7) and (8). In this respect, much will depend on the interpretation of the relevant primary norm at stake, see Rainbow Warrior case (New Zealand v. France), Arbitral Tribunal, Award of 30 April 1990, 20 RIAA 217, at 264-266, paras. 102-106, and 267-271, paras. 111-115 (1994).
24. LaGrand (Germany v. USA), Merits, Judgment of 27 June 2001, paras. 124-127 (not yet published). The ILC had decided to postpone any decision on assurances until the Court rendered its judgment in that case. On the divided views within the ILC on the reading of the LaGrand Judgment with regard to assurances of non-repetition see Crawford, Peel & Olleson, this respect, much will depend on the interpretation of the relevant primary norm at stake note 6, at 987.
25. Crawford, Third Report, On the divided views within the ILC on the reading of the LaGrand Judgment with regard to assurances of non-repetition see Crawford note 5, at paras. 53-59.
26. See H. Grotius, De iure belli ac pacis libri tres, reproduced and translated by F.W. Kelsey & J.B. Scott (Eds.), The Classics of International Law, Book II, Chapter XVII, Sec. II, at 430 (1913).
27. See, e.g., B. Graefrath, Responsibility and Damages Caused: Relationship between Responsibility and Damages, 185 RdC 8, at 35 (1984 II); Crawford, First Report, The Classics of International Law note 5, at para. 105.
28. For instance, the term direct damage refers to the question of restricting indemnifiable damage by requiring a sufficient factual, causation-related link between the wrongful act (i.e. the injury) and the loss or harm suffered (i.e. the damage). By contrast, direct injury-inasmuch as it concerns the incidence of the local remedies rule-refers to the breach or the nature of the illegality of the act itself, regardless of the factual detrimental consequences (i.e. the damage) of the act. Another example is the general conceptual distinction between state responsibility for internationally wrongful acts (i.e. injury) and liability for damage resulting from acts not prohibited by international law.
29. On the question of damage and injury see also Crawford, The International Law Commission's Articles, For instance, the term direct damage refers to the question of restricting indemnifiable damage by requiring a sufficient factual, causation-related link between the wrongful act (i.e. the injury) and the loss or harm suffered (i.e. the damage). note 6, at 29-31.
30. Commentary to Article 31, paras. (9)-(13).
31. See infra Section 2.3.1.
32. Cf. commentary to Article 35, para. (3).
33. Commentary to Article 36, para. (5).
34. Cf. commentary to Article 37, para. (5). The most common form of satisfaction in international judicial practice, viz. the declaration of wrongfulness of the act by a competent court or tribunal, is not listed because such declaration must emanate from a judicial organ with jurisdiction, and the Articles are not concerned to specify such an organ or to deal with issues of judicial jurisdiction. Id., at para. (6).
35. Crawford, First Report, The Responsibility of States for International Crimes 299-314 and the references in Crawford note 5, at paras. 52-60.
36. Crawford, Third Report, The International Law Commission's Articles note 5, at paras. 76-101.
37. The commentary lists the following examples of obligations under peremptory norms: the prohibitions of aggression, slavery, slave trade, genocide, racial discrimination, apartheid, and of torture, the basic rules of international humanitarian law applicable in armed conflict, and the obligation to respect the right of self-determination, see commentary to Article 40, paras. (4) and (5). Note that Article 41(1) as provisionally adopted by the Drafting Committee in 2000 referred to obligations erga omnes, i.e. obligations “owed to the international community as a whole,” a phrase coined by the ICJ in its famous dictum in Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, 1970 ICJ Rep. 3, at 32, para. 33. This phrase however proved to be too general and was not accepted in the context of Part Two, Chapter III. It nevertheless reappears in Arts. 42 and 48. See infra Section 2.3.1.
38. Commentary to Article 40, para. (8).
39. Commentary to Article 41, para. (3).
40. Commentary to Article 41, para. (14).
41. UN Doc. A/CN.4/L.600 (2000).
42. The Special Rapporteur emphasised the distinction between aggravated, afflictive or exemplary damages on the one side, and punitive damages on the other side, in order to justify the inclusion of the former in the text. See, e.g., Crawford, Third Report, UN Doc. A/CN.4/L.600 note 5, at paras. 189-191; Crawford, The International Law Commission's Articles, UN Doc. A/CN.4/L.600 note 6, at 36. However, while this subtle distinction may be established in some domestic legal systems, it can hardly be maintained in international law. Where damages are payable according to the seriousness of the wrong done and in principle regardless of the actual harm suffered, such damages necessarily will have a strong punitive connotation, whether they are called punitive damages proper or not. Even in common law the terms punitive, exemplary, afflictive, aggravated or vindictive damages are generally used interchangeably, see, e.g., B.A. Garner, Black's Law Dictionary 396 (1999). On the issue of punitive damages in international law in general see N.H.B. Jørgensen, A Reappraisal of Punitive Damages in International Law, 68 BYIL 247 (1997); S. Wittich, Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility, 3 ARIEL 101 (1998).
43. It is interesting to note that the text provisionally adopted in 2000 spoke of the obligation to “cooperate as far as possible to bring the breach to an end,” see Art. 42(2)(c), UN Doc. A/CN.4/L.600 (2000). It would appear that under this provision the other states would have had more freedom of action with regard to the continuing breach.
44. Cf. C. Annacker, The Legal Régime of Erga Omnes Obligations in International Law, 46 AJPIL 131, at 151 (1994); K. Sachariew, State Responsibility for Multilateral Treaty Violations: Identifying the ‘Injured State’ and its Legal Status, 35 NILR 273, at 282-283 (1988).
45. See also Crawford, The International Law Commission's Articles, The Legal Régime of Erga Omnes Obligations in International Law note 6, at 38-45.
46. See infra Section 2.3.2, Arts. 49 and 54.
47. 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.
48. The examples par excellence are the 1961 Vienna Convention on Diplomatic Relations, 500 UNTS 95, and the 1963 Vienna Convention on Consular Relations, 596 UNTS 261. Other examples of strictly bilateral obligations are those established by unilateral commitment made by one state to another or by a binding judgment of an international court or tribunal. See commentary to Article 42, paras. (6)-(10).
49. Thus Art. 42(b)(i) draws the analogy to Art. 60(2)(b) of the Vienna Convention on the Law of Treaties.
50. The commentary to Article 42, at para. (12), mentions violations of Art.194 of the 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3, which may have particular adverse effects on individual states.
51. As to these terms see id., at para. (5), n. 706. Art. 42(b)(ii) is the parallel provision to Art. 60(2)(c) of the Vienna Convention on the Law of Treaties.
52. Commentary to Article 42, para. (13).
53. Commentary to Article 48, para. (6).
54. Barcelona Traction case, Id. note 45, at 32, para. 33.
55. Id., at 32, para. 34. The right to self-determination of peoples as entailing an obligation erga omnes was added by the Court in the East Timor case (Portugal v. Australia), Judgment of 30 June 1995, 1995 ICJ Rep. 90, at 102, para. 29.
56. Commentary to Article 48, para. (11).
57. The Special Rapporteur held the view that the limited entitlement of the other states to cessation, satisfaction and assurances against repetition in case of victimless breaches of community obligations was significant in itself. Crawford, Third Report, Commentary to Article 48 note 5, at para. 379.
58. The Special Rapporteur held the view that the limited entitlement of the other states to cessation, satisfaction and assurances against repetition in case of victimless breaches of community obligations was significant in itself. note 45, at paras. 33-35.
59. Commentary to Article 40, para. (7). See also Wittich, The Special Rapporteur held the view that the limited entitlement of the other states to cessation, satisfaction and assurances against repetition in case of victimless breaches of community obligations was significant in itself. note 45 note 15, at 165-167.
60. South West Africa, Second Phase (Ethiopia/Liberia v. South Africa), Judgment of 18 July 1966, 1966 ICJ Rep. 1, at 47 (emphasis added).
61. As to the debate on these issues see in detail Crawford, The International Law Commission's Articles, “involves a measure of progressive development, which is justified since it provides a means of protecting the community or collective interest at stake.” note 6, at 48-56.
62. Commentary to Article 49, para. (3).
63. As the commentary points out, “[t]he word ‘only’ in paragraph 1 applies equally to the target of the countermeasures as to their purpose.” Id., at para. (4).
64. Id., at para. (7). The latter aspect is explicitly set out in Art. 53 according to which countermeasures shall be terminated as soon as the responsible state has complied with its obligations under Part Two in relation to the internationally wrongful act.
65. Commentary to Article 50, para. (9).
66. Cf. id., at para. (1).
67. See introductory commentary to Part Three, Chapter II, para. (5).
68. Air Services Agreement of 27 March 1947 (United States v. France), 18 RIAA 417, at 444, para. 83 (1978).
69. Commentary to Article 53, paras. (4) and (5).
70. The commentary gives the example that the responsible state might withdraw its assets from banks in the injured state, id., at para. (6).
71. For a review of the sparse state practice in the field see commentary to Article 54, paras. (3)-(5).
72. It also provided that where more than one state took countermeasures, the states concerned had to cooperate in order to ensure that the conditions for the taking of countermeasures were fulfilled. UN Doc. A/CN.4/L.600.
73. See the sarcastic remark by the Special Rapporteur that this argument “was a purely historical justification” of Draft Article 54, while “[n]ow that the proposed position was clarified, article {54} needed substantive justification.” Crawford, The International Law Commission's Articles, It also provided that where more than one state took countermeasures, the states concerned had to cooperate in order to ensure that the conditions for the taking of countermeasures were fulfilled. note 6, at 55.
74. See introductory commentary to Part Three, Chapter II, para. (3).
75. Thus, the International Tribunal for the Law of the Sea referred to the Article 42(1) 1996 Draft (now Art. 34), Saiga case, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights note 93, at para. 171.
76. Commentary to Article 41, para. (3).
77. Commentary to Article 48, para. (12).
78. Crawford, The International Law Commission's Articles, Commentary to Article 48 note 6, at 20-23.
79. See, e.g., the text accompanying notes 23, 51-53 and 72.
80. See, e.g., Allott, the text accompanying notes 23 note 3, passim.