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The Fifty-Third Session of the International Law Commission

Published online by Cambridge University Press:  27 February 2017

Robert Rosenstock  and
Margo Kaplan
Robert Rosenstock
Affiliation:
International Law Commission, New York University School of Law Program
Margo Kaplan
Affiliation:
International Law Commission, New York University School of Law Program
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Type
Current Developments
Information
American Journal of International Law , Volume 96 , Issue 2 , April 2002 , pp. 412 - 419
Copyright
Copyright © American Society of International Law 2002

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References

1 The Commission wished to clarify that the topic of state responsibility does not include responsibility under internal law. Thus, the official title of the topic was changed to “Responsibility of States for internationally wrongful acts.” Report of the International Law Commission [ILC] on the Work of its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, para. 68, UN Doc. A/56/10 (2001) [hereinafter 2001 Report]. The ILC’s reports for the years from 1996 to 2001 are available online at <http://www.un.org/law/ilc>.

2 Judge Ago followed F. V. García-Amador as special rapporteur. The special rapporteurs who preceded Professor Crawford were Professors Willem Riphagen and Gaetano Arangio-Ruiz, each of whom made a significant contribution, as did other members over the years.

3 Report of the International Law Commission on the Work of Its Twenty-second Session, [1970] 2 Y.B. Int’l L. Comm’n 272, 306, para. 66(c), UN Doc. A/CN.4/SER.A/1970/Add.1 (Part 2). Judge Ago may have been influenced by Judge Max Huber who wrote, in British Claims in the Spanish Zone of Morocco: “La responsabilité est le corollaire nécessaire du droit. Tous droits d’ordre international ont pour conséquence une responsabilité internationale. La responsabilité entraine comme conséquence l’obligation d’accorder une réparation au cas où l’obligation n’auraitpas été remplie.” (Responsibility is the necessary corollary of aright. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparations.) Affaire des biens britanniques au Maroc espagnol, 2 R.I.A.A. 615, 641 (1925) (trans, by authors).

4 For additional discussion of the full text of the draft articles and the commentaries thereto, see 2001 Report, supra note 1, paras. 30-77.

5 Id., State responsibility Arts. 20-27.

6 For further explanation of the concept of countermeasures and the limits thereto, see id., para. 77, commentary to State responsibility Articles 22 and 50.

7 Id., State responsibility Arts. 51-53.

8 Id., State responsibility Art. 50.

9 Id., State responsibility Art. 54. The case of genocide by a state against its own people was widely accepted as a compelling example.

10 Id., State responsibility Arts. 34-39. It is noteworthy, if not odd, that the notion of assurances and guarantees of nonrepetition is unique in that the 2001 Report contains absolutely no precedent, judicial or arbitral, for an obligation to make any such commitment byway of satisfaction, although states often demand it.

11 Id., State responsibility Art. 42.

12 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 60(2) (c), 1155 UNTS 331. This phrasing results in a narrower definition of the injured state than that in the previous draft, which used the phrase “[i]s of such a character as to affect the enjoyment of the rights or the performance of the obligations of all the States concerned.” International Law Commission, Draft Articles Provisionally Adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L.600, Art. 43 (2000). Because Article 50 only expressly allows for injured states to take countermeasures, the change in phrasing of Article 42 (b) (ii) consequently narrows the category of states that may take countermeasures under Article 50.

13 2001 Report, supra note 1, pt. II, ch. III, Arts. 40-41.

14 Article 53 of the Vienna Convention on the Law of Treaties, supra note 12, defines a peremptory norm of general international law as one that is “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

15 State responsibility Art. 41 and commentary thereto, 2001 Report, supra note 1, para. 77.

16 After the Commission decided to reject the notion of so-called state crimes (former Article 19) in 1998, a modified standard of obligations erga omnes, “serious breaches of obligations to the international community as a whole,” was considered in its place, as well as the simple deletion of the neologism. The phrase, however, was considered too vague and lacking in precedent. For further discussion of this topic, see id., para. 77, commentary to Articles 40-41.

17 Id., para. 77, commentary to Art. 41.

18 See id., para. 77.

19 See, e.g., Gabčikovo-Nagymaros Project (Hung./Slovk.), 1997ICJ Rep. 7, 38-42, 54-56 (Sept. 25); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, 188, 377-78 (June 27).

20 While the Commission’s text for what became the Vienna Convention on the Law of Treaties, supra note 12, contained no dispute settlement provisions, the final text included a role for the International Court of Justice. The draft articles on state responsibility submitted by the Commission in 1996 contained exceptionally well-crafted articles on dispute settlement, which states might find useful in other contexts. Report of the International Law Commission on the Work of Its Forty-eighth Session, UN GAOR, 51st Sess., Supp. No. 10, para. 65, UN Doc. A/51/10 (1996).

21 Robert Q. Quentin-Baxter, Third Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, [1982] 2 Y.B. Int’l L. Comm’n, pt. 1, at 60, para. 41, UN Doc. A/CN.4/SER.A/1982/Add.1 (Part 1). Professor Quentin-Baxter drew upon various sources, including the principle sic utere tuo ut alienum non laedus. See UN Conference on the Human Environment, Stockholm Declaration, June 16, 1972, UN Doc. A/CONF.48/14, princ. 21, 11 ILM 1416 (1972) [hereinafter Stockholm Declaration].

22 [1982] 2 Y.B. Int’l L. Comm’n, pt. 1, at 60, para. 41.

23 Id. at 57, para. 24.

24 Id.

25 Id. at 57, para. 25. The commitment to make reparation, according to Quentin-Baxter, was both created and limited by shared expectations, a concept that gave states the flexibility to distribute costs and benefits depending upon what was mutually acceptable in the circumstances. Shared expectations, under section 4(4) of the schematic outline, included expectations expressed in correspondence between states or those “implied from common legislative or other standards or patterns of conduct normally observed by the States concerned, or in any regional or other grouping to which they both belong, or in the international community.” Id. at 63.

26 For further discussion and the complete text of the articles with commentaries thereto, see 2001 Report, supra note 1, paras. 78-98.

27 Id., para. 98, Hazardous activities Art. 2.

28 For further discussion of due diligence, see id., para. 98, commentary to Article 3.

29 Id., para. 98(10), commentary to Art. 3.

30 Id., para. 98(17), commentary to Art. 3; see also Stockholm Declaration, supra note 21, princ. 22; UN Conference on Environment and Development, Rio Declaration on Environment and Development (June 13, 1992), UN Doc. A/CONF.151/5/Rev.1, princ. 11, 31 ILM 874 (1992).

31 Mohamed Bennouna served as special rapporteur for the topic until his election to the International Criminal Tribunal for the Former Yugoslavia in 1999.

32 The rule on continuity of nationality, as defined by Oppenheim, states that

[f]rom the time of the occurrence of the injury until the making of the award the claim must continuously and without interruption have belonged to a person or to a series of persons (a) having the nationality of the state by whom it is put forward, and (b) not having the nationality of the state against whom it is put forward.

1 Oppenheim’s International Law 512-13 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) (citation omitted).

33 UN Doc. A/CN.4/SR.2685, at 3 (2001).

34 R, John. Dugard, , Second Report on Diplomatic Protection, UN Doc. A/CN.4/514, paras. 7–10 (2001)Google Scholar, available at <http://www.un.org/law/ilc/sessions/53/53docs.htm>.

35 UN Doc. A/CN.4/SR.2689, at 16 (2001).

36 For the full text of these guidelines and commentaries thereto, see 2001 Report, supra note 1, para. 157.

37 The concern was not with the special rapporteur’s position on the substance of the issue but, rather, the encouragement such proposals gave to permissible but, as everyone agreed, undesirable practices. The current guidelines subject the practice of late reservations to strict limitations, requiring either a clause expressly authorizing the late formulation of reservations or the unanimous tacit consent of the other contracting parties.

38 For the full discussion of these guidelines, see Alain Pellet, Sixth Report on Reservations to Treaties, UN Doc. A/CN.4/518/Add.1, paras. 40-133 (2001), available at <http://www.un.org/law/ilc/sessions/53/53docs.htm>. Because priority was given to other topics, the Drafting Committee was not able to address these guidelines at the fifty-third session.

39 The Human Rights Committee in effect called for a special regime for reservations to human rights treaties, see General Comment No. 24, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994), notwithstanding the provisions to the contrary of the Vienna Convention on the Law of Treaties, supra note 12, Articles 19-23, laying out the fundamental role of consent. The Committee’s general comments are available online at <http://www.unhchr.ch/tbs/doc.nsf>.

40 For the full text of the proposed articles, see Victor Rodríguez Cedeno, Fourth Report on Unilateral Acts of States, UN Doc. A/CN.4/519, para. 154 (2001), available at <http://www.un.org/law/ilc/sessions/53/53docs.htm>.

41 Id., paras. 9-10.

42 Id., paras. 101-52. For the draft articles, see id., para. 154.

43 2001 Report, supra note 1, para. 25.

44 For a full discussion of the long-term program of work, see id., paras. 255-60.