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The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority

Published online by Cambridge University Press:  27 February 2017

David D. Caron
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Extract

The adoption by the International Law Commission (ILC) in 2001 of its articles on state responsibility is an achievement that presents a paradox. This essay is about the form and authority of the articles, and the paradox that they could have more influence as an ILC text than as a multilateral treaty. The essay addresses the questions of the appropriate authority to be given an ILC text, why undue influence may be attributed to an ILC text (particularly by arbitral tribunals), and how an arbitral tribunal should approach interpreting and applying the articles on state responsibility.

Type
Research Article
Information
American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 857 - 873
Copyright
Copyright © American Society of International Law 2002

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References

1 As to the institutional habits of the ILC, see generally the sources listed infra note 11. See, e.g., The International Law Commission and the Future OF International Law 22-23 (M.R. Anderson, A. E. Boyle, A. V. Lowe, & C. Wickremasinghe eds., 1998) [hereinafter B.I.I.C.L. Study Group Report] ; see also Edward McWhinney, United Nations Law Making: Cultural and Ideological Relativism and International Law Making for an Era of Transition 226-27 (1984). In addition, in areas of a fast-changing world requiring legal innovation, the ILC may not be the most appropriate forum since by both design and habit the Commission is not particularly responsive to changing conditions. David, D. Caron, The Frog That Wouldn’t Leap: The International Law Commission and Its Work on International Watercourses, 3 Colo. J. Int’l Envtl. L. & Pol’y 269 (1992)Google Scholar.

2 See Tomuschat, Christian, ILC—International Law Commission, in 1 United Nations: Law, Policies and Practice 705, 708 (Rüdiger, Wolfram & Philipp, Christine eds., rev. Eng. ed. 1995)Google Scholar (noting that “law-making [in general] under the auspices of the ILC is extraordinarily protracted” (emphasis omitted)).

3 A timely primary source on the recently adopted articles is James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text And Commentaries (2002). The official text and commentary appear in the ILC’s 2001 Report. Draft Articles on Responsibility of States for Internationally Wrongful Acts [hereinafter Draft Articles], 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 <http://www.un.org/law/ilc> [hereinafter ILC 53d Report].

4 See, e.g., Symposium, State Responsibility, 10 Eur. J. Int’l L. 339 (1999) (articles by Georges Abi-Saab, Christian Dominicé, Giorgio Gaja, Pierre-Marie Dupuy, Christine Chinkin, Andrea Gattini, Vaughan Lowe, Christine Gray, Alain Pellet, and James Crawford).

5 Under Article 23(1) of the Statute of the International Law Commission, infra note 7:

The Commission may recommend to the General Assembly:

  • (a)

    (a) To take no action, the Report having already been published;

  • (b)

    (b) To take note of or adopt the Report by resolution;

  • (c)

    (c) To recommend the draft to members with a view to the conclusion of a convention;

  • (d)

    (d) To convoke a conference to conclude a convention.

6 There are several histories, see, e.g., Dokhalia, R. P., The Codification of Public International Law (1970)Google Scholar; Cho, Minkyu, Codification of International Law, with Emphasis on the International Law Commission of the United Nations 57-107 (1974)Google Scholar (unpublished Ph.D. dissertation, University of Michigan). For a succinct and thoughtful overview with an extensive bibliography, see Rosenne, Shabtai, Codification of International Law, 1 Encyclopedia of Public International Law 632-40 (Bernhardt, Rudolf ed., 1992)Google Scholar.

7 Pursuant to the General Assembly’s mandate under the UN Charter, Article 13 (1) (a), the Assembly created the ILC via Resolution 174 (II) of Nov. 21, 1947. The original version of the ILC Statute was annexed to that resolution. Article 1 of the Statute charges the ILC with “the promotion of the progressive development of international law and its codification.”

8 De Visscher called the nineteenth century the “century of codification.” Charles, De Visscher, La Codification du droit international, 6 Recueil Des Cours 329 (1925 I)Google Scholar.

9 See, e.g., Tomuschat, supra note 2, at 705 (stating that” [t]he dichotomous mandate . . . is based on a clear intellectual distinction. The objective of codification is not the creation of legal rules, but rather the collection, sorting, and refinement of such.”)

10 See, e.g., Singh, Nagendra, The UN and the Development of International Law, in United Nations, Divided World 384, 403-04 (Roberts, Adam & Kingsbury, Benedict eds., 2d ed. 1993)Google Scholar.

11 As to the history and work of the ILC, see generally B.I.I.C.L. Study Group Report, supra note 1; Herbert, W. Briggs, The International Law Commission (1965)Google Scholar; Crawford, supra note 3; Goswami, Subir, Politics in Lawmaking (A Study of the International Law Commission of the UN) (1986)Google Scholar; Making Better International Law: The International Law Commission at 50(1998); Ramcharan, B.G., The International Law Commission: its Approach to The Codification and Progresspve Development of International Law (1977)Google Scholar; Sinclair, Ian, The International Law Commission (1987)Google Scholar; Watts, Arthur, The International Law Commission 1949-1998 (3 vols. 1999)Google Scholar; Cho, supra note 6, at 108-324. For an empirical analysis of the work of the ILC, see Jeffrey, S. Morton, The International Law Commission of the United Nations (2000)Google Scholar.

12 McWhinney cautioned amid the East-West conflict, for example, that an “era of transition or revolution, such as we live in today . . . , is hardly ripe for ventures in codification.” McWhinney, Edward, On the Vocation of Our Age for Lawmaking: Constitutional and International Codification in an Era of Transition and Rapid Change, In Legal Change: Essays in Honour of Julius Stone 241, 248 (Blackshield, A. R. ed., 1983)Google Scholar.

13 Savigny’s views were expressed in an essay entitled Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft (1814). For an English translation, see Frederick, Carl Von Savigny, Of The Vocation of Our Age for Legisiation and Jurisprudence (Hayward, Abraham trans., London, Littlewood 1831)Google Scholar.

14 In Savigny’s view,

[t]he danger from a foreign Code no longer existed; but there still existed the danger of a Code at all. The eminent lawyer Thibaut of Heidelberg advocated the establishment of a German Code, and Savigny determined to throw his great weight in the other scale and restore a natural evolution of law.

2 Great Jurists of The World 575 (MacDonell, John & Manson, Edward eds., 1914)Google Scholar.

15 Reimann, Mathias, The Historical School Against Codification: Savigny, Carter, and the Defeat of the New York Civil Code, 37 Am. J. Comp. L. 95, 98 (1989)Google Scholar (footnotes omitted).

16 Id.

17 Id. at 103. Carter argued in his 1884 essay that codification obstructs the evolution of the law: it results in “the arrest of the self-development of private law—its true method of growth.” Id. See generally James, C. Carter, The Proposed Codification of Our Common Law 92-117 (New York, B. Ass’n City of N.Y. 1884)Google Scholar.

18 McWhinney, supra note 12, at 242.

19 Id. at 249.

20 For a reference to the related view of Weber, see Allott, Philip, State Responsibility and the Unmaking of International Law, 29 Harv. Int’l LJ. 1, 9 (1988)Google Scholar.

21 A lack of consensus was cited by Western scholars (citing Savigny) and statesmen opposing as premature the Khrushchev-inspired push for a codification of the principles of peaceful coexistence. See, e.g., McWhinney, Edward, Peaceful Coexistence and Soviet-Western International Law 86-90 (1964)Google Scholar. An area without the necessary consensus may also benefit from a legal order, but a politically dominated legislative process rather than an expert dominated codification process will likely be perceived as more legitimate.

Lauterpacht offers a thoughtful discussion on the necessary conditions for codification by distinguishing between those situations where there is no consensus “due to conflicting interests,” and those where there is no consensus simply because there is—amid uncertainty—divergence of practice “of little moment” to the states. Lauterpacht, Hersch, Codification and Development of International Law, 49 AJIL 16, 23-27 (1955)Google Scholar. In this regard, see also Thirlway, H. W. A., International Customary Law and Codification 21-23 (1972)Google Scholar.

22 Accord B.I.I.C.L. Study Group Report, supra note 1, at 25-26.

23 See Cho, supra note 6, at 21.

24 See generally De Visscher, supra note 8, at 378—79; Stone, Julius, On the Vocation of the International Law Commission, 98 Colum. L. Rev. 16, 31-32 (1957)Google Scholar.

25 Georges Abi-Saab, Presentation, in Making Better International Law, supra note 11, at 73; accord Bruno Simma, Presentation, id. at 77.

26 State responsibility was one of the fourteen topics originally selected by the Commission for “codification and progressive development” in 1949. 1949 Y.B. Int’l L. Comm’n 281, UN Doc. A/CN.4/SER.A/1949.

27 For example, the ILC work on rules of arbitral procedure was adopted as “Model Rules of Arbitral Procedure.” More recently, the ILC used the form of a commentary in addressing certain questions regarding reservations. Although there are some exceptions, I do not see a trend away from the dominant form. However, it is difficult to draw a strong conclusion.

28 See, e.g., Thomas, M. Franck & Mohamed, ElBaradei, The Codification and Progressive Development of International Law: A UNITAR Study of the Role and Use of the International Law Commission, 76 AJIL 630, 638 (1982)Google Scholar (summarizing the influential, but not readily accessible UNITAR study of the ILC, which recommended, inter alia, that having “too long focused virtually exclusively on codification—producing draft articles for international conventions—the Commission should consider other kinds of output, including ‘model rules,’ restatements, and analyses of emerging trends in state and interstate practice” (footnote omitted)). For the original study, see ElBaradei, Mohamed, Thomas, M. Franck, & Trachtenberg, Robert, The International Law Commission: The Need for a New Direction (UNITAR Policy Efficacy Studies No. 1, 1981)Google Scholar. See also B.I.I.C.L. Study Group Report, supra note 1, at 23-24.

29 Goswami, supra note 11, at 162 (noting that “the distinction . . . cannot be strictly maintained” and that the Commission “has, thus, generally considered that its drafts constitute both codification and progressive development of international law”); Ramcharan, supra note 11, at 104-05 (noting that” [w] here the Commission puts forward a draft convention . . . , it is possible to avoid distinguishing . . .”); Tomuschat, supra note 2, at 706 (noting that “it soon became apparent that a precise definition of the boundary between the two fields within the context of each and every project would be impossible . . . . The practice of separating the two procedures for every draft topic was therefore discontinued after only a few years.”); Robert, Y. Jennings, Development of International Law and Its Codification, 1947 Brit. Y.B. Int’l L. 301, 317 Google Scholar.

30 See, e.g., Sinclair, supra note 11, at 39.

31 James Crawford, First Report on State Responsibility, UN Doc. A/CN. 4/490, para. 41 (1998) [hereinafter Crawford, First Report]. Professor Crawford’s four Reports to the Commission are available online at <http:// www.un.org/law/ilc>.

32 Franck & ElBaradei, supra note 28, at 638.

33 James Crawford, Fourth Report on State Responsibility, UN Doc. A/CN. 4/517, para. 22 (2001).

34 Id., para. 23.

35 Id., para. 25.

36 ILC 53d Report, supra note 3, at 38, para. 61.

37 Id. at 38, para. 62.

38 Id.

39 Id. at 39, para. 62.

40 Id., para. 63.

41 Id. As for the suggestion that the ILC could instead recommend the adoption of a nonbinding declaration by the General Assembly endorsing the articles, some viewed this course as problematic because it implied that the topic was of minor normative significance. Moreover,” [i]t would be unrealistic to expect the General Assembly to adopt the text as a declaration without first substantially amending the draft articles,” and “ [t]here was no guarantee that States would not attach interpretative declarations to the instrument.” Id. at 40, para. 65. In short, “a declaration entailed the same problems as a convention, but without the advantages.” Id.

42 Id. at 39, para. 63. This view has also been voiced by Professor Stephen C. McCaffrey, a former member of the ILC. Stephen, C. McCaffrey, Is Codification in Decline? 20 Hastings Int’l L. Rev. 639, 650-51 (1997)Google Scholar.

43 ILC 53d Report, supra note 3, at 40, para. 66.

44 Presumably, the phrase “takes note” means the General Assembly takes a position neither in agreement nor in opposition to the articles.

45 The resolution is brief and reads as follows:

The General Assembly,

Having considered chapter IV of the Report of the International Law Commission on the work of its fifty-third session, which contains the draft articles on responsibility of States for internationally wrongful acts,

Noting that the International Law Commission decided to recommend to the General Assembly that it take note of the draft articles on responsibility of States for internationally wrongful acts in a resolution and annex the draft articles to that resolution, and that it should consider at a later stage, in the light of the importance of the topic, the possibility of convening an international conference of plenipotentiaries to examine the draft articles with a view to concluding a convention on the topic,

Emphasizing the continuing importance of the codification and progressive development of international law, as referred to in Article 13, paragraph 1 (a), of the Charter of the United Nations,

Noting that the subject of responsibility of States for internationally wrongful acts is of major importance in the relations of States,

  1. 1.

    1. Welcomes the conclusion of the work of the International Law Commission on responsibility of States for internationally wrongful acts and its adoption of the draft articles and a detailed commentary on the subject;

  2. 2.

    2. Expresses its appreciation to the International Law Commission for its continuing contribution to the codification and progressive development of international law;

  3. 3.

    3. 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;

  4. 4.

    4. Decides to include in the provisional agenda of its fifty-ninth session an item entitled “Responsibility of States for internationally wrongful acts”.

GA Res. 56/83 (Dec. 12, 2001), available at <http://www.un.org/docs> (footnotes omitted). The ILC articles are annexed to the resolution.

46 International Law Association Study Group on the Law of State Responsibility, First Report, para. 10 (June 1, 2000), available at <http://www.ila_hq.org/html/layout_committee.htm>. That paragraph reads in part (footnote omitted):

Third, there is the problem of insufficient input by states into the work of the ILC. Comments by states are relatively few in number, are submitted more by a certain group of states than by other groups, and mostly address more basic issues than entering into specific details of the draft articles. In 1998, only sixteen states had commented. In 1999, the number increased only to 21 states.

47 Sinclair, supra note 11, at 47; accord Goswami, supra note 11, at 259.

48 For an overview of such international lawmaking options, see Paul, C. Szasz, General Law-Making Processes, in 1 United Nations Legal Order 35 (Schachter, Oscar & Christopher, C. Joyner eds., 1995)Google Scholar.

49 Tomuschat, supra note 2, at 706.

50 Id.

51 See Tomuschat, Christian, International Law, in The United Nations at Age Fifty: A Legal Perspective 281, 296 (Tomuschat, Christian ed., 1995)Google Scholar (stating that “[a]cademic skills must be matched by a vivid sense of political acceptability”).

52 Parry, Clive, The Sources and Evidences of International Law 23-24, 114 (1965)Google Scholar.

53 Brownlie, Ian, Principles of Public International Law 26 (3d ed. 1979)Google Scholar.

54 Parry, supra note 52, at 114. See also as to a higher status, Mark E. Villiger, customary international law and treaties 79 (1985).

55 See, e.g., Survey of International Law in Relation to The Work of Codification of the International Law Commission, UN Doc. A/CN.4/Rev. 1, at 15-18 (1949), UN Sales No. 1948.V. 1(1) (“Most probably their authority would be considerably higher.”).

56 On the point of compromise, it is illuminating to review the early discussions as to whether members had the right to add dissenting opinions or reservations to the annual Reports of the ILC, See Briggs, supra note 11, at 254-75.

57 Ramacharan, supra note 11, at 25.

Morton conducted a content empirical analysis of the ILC, concluding that “the political arena in which nation-states compete for the attainment of their vital interests has penetrated the International Law Commission to such [an] extent that commission debate is a microcosm of world politics A pristine, insulated chamber composed of independent legal experts simply does not exist.” Morton, supra note 11, at 102-03. This conclusion could likely be reached about publicists generally and points to the care to be exercised generally when looking to the writings of publicists.

58 See Meron, Theodor, Human Rights and Humanitarian Norms as Customary Law 137 (1989)Google Scholar (“[T]he work of the ILC should not be regarded only as a manifestation of teachings of publicists. Additionally, it constitutes a stage in the UN work of codification and progressive development of international law and as such it may demonstrate practice of states and of international organizations.” (emphasis added)).

Similar statements have been made regarding the authority of restatements of the American Law Institute in U.S. courts. See, e.g., Harold, G. Maier, The Utilitarian Role of a Restatement of Conflicts in a Common Law System: How Much Judicial Deference Is Due to the Restaters or “Who are these guys, anyway?”75 Ind. L.J. 541, 548 (2000)Google Scholar (stating that “no restatement is ever ‘law.’ It has no legal force. It is, in theory, an educated analysis . . .”).

59 David, D. Caron, The Basis of Responsibility: Attribution and Other Trans-substantive Rules, in The Iran-United States Claims Tribunal: Its Contribution To The Law Of State Responsibility 109, 181 (Richard, B. Lillich, Daniel, Barstow Magraw, & David, J. Bederman eds., 1998)Google Scholar.

60 Id. at 181-82 (footnote omitted).

61 Id. at 182 (footnote omitted).

62 Compare Reisman’s comment on the use by tribunals of unperfected legal acts: “Scholars may cautiously reconstruct unperfected legal acts in international law. Judges and arbitrators, I submit, should not.” Michael Reisman, W., Unratified Treaties and Other Unperfected Acts in International Law, 35 Vand. J. Transnat’l L. 729, 747 (2002)Google Scholar.

63 [1982] 1 Y.B. Int’l L. Comm’n 40, para. 14, UN Doc. A/CN.4/SER.A/1982.

64 Combacau, Jean &c Alland, Denis, “Primary” and “Secondary” Rules in the Law of State Responsibility: Categorizing International Obligations, 1985 Neth. Y.B. Int’l L. 81 Google Scholar.

65 Richard, B. Lillich, The Current Status of the Law of State Responsibility for Injuries to Aliens, in International Law of State Responsibility for Injuries to Aliens 1, 19-20 (Richard, B. Lillich ed., 1983)Google Scholar.

66 Caron, supra note 59, at 110.

67 Crawford, First Report, supra note 31. According to Crawford:

  1. 14.

    14. The distinction between primary and secondary rules has had its critics. It has been said, for example, that the “secondary” rules are mere abstractions, of no practical use; that the assumption of generally applicable secondary rules overlooks the possibility that particular substantive rules, or substantive rules within a particular field of international law, may generate their own specific secondary rules, and that the draft articles themselves fail to apply the distinction consistently, thereby demonstrating its artificiality.

  2. 15.

    15. On the other hand, to abandon the distinction, at the current stage of the work on the topic, and to search for some different principle of organization for the draft articles, would be extremely difficult. It would amount to going back to the drawing board, producing substantial further delays in the work. Moreover, it is far from clear what other principle of organization might be adopted, once the approach of selecting particular substantive areas for codification (such as injury to aliens) has been abandoned.

68 Tomuschat, supra note 2, at 711.

69 Loewen Group v. United States, Competence and Jurisdiction, ICSID Case No. ARB(AF)/98/3 (Jan. 5,2001) (Anthony Mason (Pres.), L. Yves Fortier, & Abner J. Mikva, arbs.), available at <http://www.naftaclaims.com>. The author provided an expert opinion to the respondent in the proceeding. This aspect of the decision is not recounted in order to question the decision but, rather, to use one aspect of a complex question to demonstrate the difficulty in applying an abstract document such as the draft articles.

70 North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex„ Art. 1101 (1), 107 Stat. 2066, 32 ILM 296,605 (1993).

71 Loewen, supra note 69, para. 46.

72 Id., para. 47.

73 Id., para. 54.

74 Draft Articles, supra note 3, Art. 55.