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.
Type Research Article Information American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 874 - 890 Copyright © American Society of International Law 2002Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
1 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 . The final text with commentary and apparatus is in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002). References to, and quotations of, the articles, as well as the official ILC commentaries to the articles, which also appear in the Commission’s Fifty-third Report, supra, will be identified below by article and paragraph number.
2 See Crawford , James , On Re-reading the Draft Articles on State Responsibility , 92 ASIL Proc . 295 ( 1998 )Google Scholar ; Crawford , James , Revising the Draft Articles on State Responsibility , 10 Eur. J. Int’l L . 435 ( 1999 )Google Scholar ; Crawford , James , Bodeau , Pierre , & Peel , Jacqueline , The ILC’s Draft Articles on State Responsibility: Toward Completion of a Second Reading , 94 AJIL 660 ( 2000 )Google Scholar ; Crawford , James , Peel , Jacqueline , & Olleson , Simon , The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading , 12 Eur. J. Int’l L . 963 ( 2001 )CrossRefGoogle Scholar .
3 In his contribution to this symposium, David Caron points out in general terms the interaction between ILC and government Representatives. As will be clear from the text, I do not agree with his view that “relatively few governments offered comments on ILC drafts.” David , D. Caron , The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority , 96 AJIL 857, 865 ( 2002 )Google Scholar .
4 E.g., Article 53 (termination of countermeasures), which was first suggested by France in 1999.
5 See the contribution to this symposium by David Bederman for this process as it affected the articles on countermeasures. David , J. Bederman , Counterintuiting Countermeasures , 96 AJIL 817 ( 2002 )Google Scholar . In fact, government comments on the countermeasures articles were of greater significance than the Court’s statements, useful as the latter were in providing support and occasional language for the text.
6 Fifty-two statements were made. Two of these were made on behalf of groups of states (Norway on behalf of the Nordic Group, and South Africa on behalf of the Southern African Development Community (SADC)).
7 Bodansky , Daniel & John , R. Crook , Introduction and Overview , 96 AJIL 773 , 773 , 790 ( 2002 )Google Scholar .
8 Commentaries, para. 2 (quoting Roberto Ago, Second Report on State Responsibility, [1970] 2 Y.B. Int’l L. Comm’n 177, 306, UN Doc. A/CN.4/SER.A/1970/Add.1).
9 Bodansky & Crook, supra note 7, at 780 n.51.
10 For an account in the field of civil obligations, emphasizing the interweaving of theory and practice, see David Ibbetson, A Historical Introduction to The Law of Obligations (2001).
11 Brownlie , Ian , Causes of Action in the Law of Nations , 1979 Brit. Y.B. Int’l. L . 13 Google Scholar , is an exercise in classification, not historical exegesis.
12 [1957] 1 Y.B. Int’l L. Comm’n 154-68, UN Doc. A/CN.4/SER.A/1957 (413th-416th meetings).
13 Commentary to pt. 1, ch. IV, para. 1.
14 Article 102 of the UN Charter says that treaties and international agreements entered into by member states “shall as soon as possible be registered with the Secretariat.” It has never been suggested that noncompliance with Article 102 produces responsibility. Compare, however, The Charter of The United Nations: A Commentary 1282 (Bruno Simma ed., 2d ed. 2002): “Art. 102 contains an absolute obligation on UN members and does not have a discretionary character. . . . Art. 102 must not be misunderstood as a mere provision setting out the conditions under which an international agreement may be invoked before an organ of the UN” (footnote omitted). This text fails to discuss the consequences of noncompliance, other than the inability to invoke the treaty or agreement before any organ of the United Nations.
15 Bodansky & Crook, supra note 7, at 781 (footnote omitted).
16 Certain French authors, e.g., Brigitte Stern, Le Préjudice Dans la Théorie de la Responsabilité Internationale (1973), have argued for such a general rule, as did France in its commentaries on the draft articles. In truth, however, the range of possible situations of breach escapes classification in terms of any noncircular definition of “damage,” as the Rainbow Warrior arbitration showed. Rainbow Warrior (NZ/Fr.), 20 R.I.A.A. 217, 266-67, paras. 107-10 (1990).
17 Article 1(1) provides:
For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1460 UNTS 112 (emphasis added).