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Published online by Cambridge University Press: 27 February 2017
1 The Commission had decided at its 49th session to experiment with splitting its session into two parts. The precise timing was a function, inter alia, of the timing of the Rome Conference on a statute for an international criminal court (a 1995 draft prepared by the ILC was the basis, together with modifications made by the Preparatory Committee, for the conference’s work). The general sense of the members of the Commission was that the split session had been a good idea and the ILC is recommending that a split session be held again in the year 2000. It might also be noted that the attendance rate was markedly higher in New York than it has been in Geneva in recent years.
2 See Report of the International Law Commission on the work of its fiftieth session, UN GAOR, 53d Sess., Supp. No. 10, para. 546, UN Doc. A/53/10 and Corr. 1 (1998) [hereinafter 1998 Report].
3 First report on State Responsibility, UN Doc. A/CN.4/490 and Adds.1–6 (1998). Professor Crawford is the fifth special rapporteur for this topic, succeeding F. V. García Amador, Roberto Ago, Willem Riphagen and Gaetano Arangio-Ruiz.
4 See id., paras. 12–18. As stated by then Special Rapporteur Ago, “it is one thing to define a rule and the content of the obligation it imposes, and another to determine whether that obligation has been violated and what should be the consequence of the violation. Only the second aspect comes under the sphere of responsibility proper.” Report of the International Law Commission on the work of its twenty-second session, [1970] 2 Y.B. Int’l L. Comm’n at 271, 306, para. 66(c), UN Doc. A/CN.4/SER.A/1970/Add.1.
5 Part One of the draft on state responsibility, as it had emerged on first reading, consists of four chapters dealing with (1) factors that give rise to state responsibility, (2) the elements used to determine when to place responsibility on a particular state, (3) the distinctions among types of state responsibility, and (4) circumstances precluding wrongfulness. See Report of the International Law Commission on the work of its twenty-ninth session, [1977] 2 Y.B. Int’l L. Comm’n at 9, UN Doc. A/CN.4/SER.A/1977/Add.1 (Part 2) [hereinafter 1977 Report].
6 UN Doc. A/CN.4/488 and Adds.1–3 (1998). Comments were submitted per request of the General Assembly. GA Res. 51/160, para. 5 (Dec. 16, 1996).
7 William of Occam: Entia non sunt multiplicanda praeter necessitatem, or “Keep it simple.”
8 Technically, it is not proper to say that the Commission took any decisions concerning the draft articles since the commentaries were not ready and it is firm and wise policy for the Commission not to adopt articles without commentaries. The texts are dierefore as proposed by the Drafting Committee and noted by the plenary. They are likely to be formally adopted at the 1999 session of the Commission as is, once the commentaries are provided.
9 Article 2 read: “Every State is subject to the possibility of being held to have committed an internationally wrongful act entailing its international responsibility.”
10 An additional savings clause, entitled “Responsibility of or for conduct of an international organization,” to be inserted at the appropriate place, reads as follows: “These draft articles shall not prejudge any question that may arise in regard to the responsibility under international law of an international organization, or of any State for the conduct of an international organization.”
11 Former Articles 2, 6, and 11–14 were deleted.
12 These arguments are well summarized in the ILC 1998 Report, supra note 2. They are extensively discussed, inter alia, in Robert Rosenstock, An International Criminal Responsibility of States? in International Law on the Eve of the Twenty-First Century: Views from the International Law Commission 265, UN Sales No. E/F.97.V.4 (1997) (arguing for deletion); and by Alain Pellet, Vive le crime! Remarques sur les degrés de l’illicite en droit international, in id. at 287 (arguing for the retention of the notion of crimes by states).
13 1998 Report, supra note 2, para. 331.
14 Author’s summary of id., paras. 35–37.
15 For an excellent, succinct history of the item, see P. S. Rao, First report on prevention of transboundary damage from hazardous activities, UN Doc. A/CN.4/487 and Add.1 (1998). For a spirited and provocative argument to the effect that the initial decision to separate the issue from that of state responsibility was misguided, that there is no fundamental difference between liability and responsibility, and consequently that all subsequent work by the Commission on this topic is flawed, see Louise de La Fayette, 6 Reciel 322, 322–33 (1997). Basically, she argues that the obligation to prevent harm is an obligation of result and that if harm occurs there has been a breach, and then—presto—the law of responsibility applies.
16 Report of the International Law Commission on the work of its forty-ninth session, UN GAOR, 52d Sess., Supp. No. 10, at 130-31, UN Doc. A/52/10 (1997).
17 Supra note 15.
18 See Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, Annex 1, UN Doc. A/51/10 (1996).
19 Convention on the Law of Non-Navigational Uses of International Watercourses, GA Res. 51/229, annex (May 21, 1997), 36 ILM 700 (1997).
20 See UN Doc. A/CN.4/256 (1998).
21 1998 Report, supra note 2, paras. 46–54.
22 Transboundary harm is defined in Article 2 as “harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border.”
23 Article 3 states: “States shall take all appropriate measures to prevent, or to minimize the risk of, significant transboundary harm.”
24 See supra note 19.
25 UN Doc. A/CN.4/491 and Adds.1–6 (1998) [hereinafter Reservations Report].
26 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331; Vienna Convention on Succession of States in Respect of Treaties, Aug. 23, 1979, UN Doc. A/CONF.80/31, 17 ILM 1488 (1978); Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Mar. 21, 1986, UN Doc. A/CONF.129/15, 25 ILM 543 (1986).
27 1998 Report, supra note 2, para. 540.
28 Reservations Report, supra note 25. Paragraph 1.5 relates to statements designed to increase the obligations of their author, and 1.6 to statements designed to limit same.
29 See 1998 Report, supra note 2, para. 517, for a discussion of the two ways in which interpretive declarations differ from reservations, namely, the temporal and teleological—i.e., when the statement is made and, most fundamentally, the author’s purpose in making the statement.
30 The issues include:
(1) the precise meaning of the expression “compatibility with the object and purpose of the treaty.”
(2) Is an impermissible reservation null and void or can another state give it effect by consenting to it?
(3) May contracting states object to permissible reservations and what are the effects of such a reservation? How do they differ, if at all, from objections to an impermissible reservation?
(4) Can the objecting state exclude the applicability of treaty provisions?
Author’s summary of issues in UN Doc. A/CN.4/470 and Corr.1 (1998).
31 UN Doc. A/CN.4/484 (1998).
32 Author’s summary of 1998 Report, supra note 2, para. 108.
33 UN Doc. A/CN.4/486 (1998).
34 He excluded a long list of acts not meeting these criteria or otherwise outside the focus of this topic, including acts of international organizations, acts mat are wrongful and give rise to responsibility, acts that lead to the formation of customary law and acts in exercise of a power conferred by a treaty.
35 See 1998 Report, supra note 2, para. 196.
36 Id., para. 201.
37 Fourth report on Nationality in relation to the succession of States, UN Doc. A/CN.4/489 (1998).
38 See 1998 Report, supra note 2, paras. 460–68.
39 The recommendation for the topics was the result of examination of a range of possible future topics by a working group chaired by Ian Brownlie. In making its selection, the group was guided, inter alia, by the needs of states and the ripeness of the topic for progressive development and codification. The group identified several additional potential topics, which it will consider further during its 51st session on the basis of feasibility studies being undertaken by several Commission members. Id., para. 551.