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Introduction and Overview

Published online by Cambridge University Press:  27 February 2017

Daniel Bodansky  and
John R. Crook
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Extract

In August 2001, the International Law Commission (ILC) adopted its “Draft Articles on the Responsibility of States for Internationally Wrongful Acts,” bringing to completion one of the Commission’s longest running and most controversial studies. On December 12, 2001, the United Nations General Assembly adopted Resolution 56/83, which “commend [ed the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.”

Type
Symposium: The ILC’s State Responsibility Articles
Information
American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 773 - 791
Copyright
Copyright © American Society of International Law 2002

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References

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 [hereinafter ILC 53d Report], UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.un.org/law/ilc>. The articles are also annexed to GA Res. 56/83, infra note 2. The final articles, commentaries, prior drafts, tables showing the derivation of each provision, bibliography, and an informative introduction by the last special rapporteur on state responsibility, all appear 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 appear in the Commission’s 53d Report and Crawford’s volume, supra, will be identified below by article and paragraph number.

2 GA Res. 56/83, para. 3 (Dec. 12, 2001). Resolutions of the General Assembly since 1977 are available online at <http://www.un.org/docs>.

3 F. V. García-Amador, First Report on International Responsibility, [1956] 2 Y.B. Int’l L. Comm’n 173, 175, para. 6, UN Doc. A/CN.4/SER.A/1956/Add.l.

4 James, R. Crawford, Responsibility to the International Community as a Whole, 8 Ind. J. Global Legal Stud. 303, 304 (2001)Google Scholar (“the idea of a general law of international obligations does not strike any particular resonance in the common law mind”). For examples of reactions by common lawyers to the ILC’s work, see, for example, Myres S. Mcdougal, Harold D. Lasswell, & Lung-Chu Chen, Human Rights and World Public Order 762 n.92 (1980) (ILC’s work “at such a high level of abstraction as to shed but a dim light upon specific controversies”); Richard Kearney, [1970] 1 Y.B. Int’l L. Comm’n 217, UN Doc. A/CN.4/SER.A/1970 (abstract responsibility might prove too “metaphysical”); 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, 21 (Richard, B. Lillich ed., 1983)Google Scholar (ILC approach offers “little or no guidance”).

5 Allott, Philip, State Responsibility and the Unmaking of International Law, 29 Harv. Int’l L.J. 1, 2 (1988)Google Scholar.

6 Simma, Bruno, Remarks, in United Nations, The International Law Commission Fifty Years After: An Evaluation 43 (2000)Google Scholar .

7 Roberto Ago, Report of the Sub-Committee on State Responsibility, [1963] 2 Y.B. Int’l L. Comm’n 227, 228, para. 5, UN Doc. A/CN.4/SER.A/1963/Add.l [hereinafter Subcommittee Report].

8 C. Northcote Parkinson, Parkinson’s Law or the Pursuit of Progress 90 (1957) (“It is now known that a perfection of planned layout is achieved only by institutions on the point of collapse.”); id. at 92 (“By the year when [the League of Nations’] Palace was formally opened the League had practically ceased to exist.”).

9 The proliferation of tribunals, in particular, has been widely noted, see, e.g., Jonathan, I. Charney, The Impact on the International Legal System of the Growth of International Courts and Tribunals, 31 NYU J. Int’l L. & Pol. 697 (1999)Google Scholar; Jonathan, I. Charney, Is International Law Threatened by Multiple International Tribunals? 271 Recueil des Cours 101 (1998)Google Scholar; Pauwelyn, Joost, The Role of Public International Law in the WTO: How Far Can We Go ? 95 AJIL 535 (2001)CrossRefGoogle Scholar; Implications of The Proliferation of International Adjudicatory Bodies for Dispute Resolution, ASIL Bull., NO. 9, 1995, and has triggered expressions of concern in many quarters, not least by the president of the International Court of Justice, see Gilbert Guillaume, Speech to the General Assembly of the United Nations (Oct. 31, 2001), at <http://www.icj-cij.org>.

10 See, e.g., Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 7, 39-46, paras. 49-58 (Sept. 25). For other references to the articles by the International Court of Justice (ICJ) and other important tribunals, see Crawford, supra note 1, at 16 n.48.

11 David, D. Caron, The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority, 96 AJIL 857 (2002)Google Scholar.

12 Article 13 of the UN Charter empowers the General Assembly to initiate studies and make recommendations for “the progressive development of international law and its codification.” The General Assembly created the ILC for this purpose at its second session in 1947. Statute of the International Law Commission, GA Res. 174 (II),UN GAOR, 2d Sess., Res. at 296, UN Doc. A/519 (1947). The ILC’s Statute gives as the Commission’s object “the promotion of the progressive development of international law and its codification.” Id., Art. 1(1).

13 David, J. Bederman, Counterintuiting Countermeasures, 96 AJIL 817 (2002)Google Scholar.

14 Shelton, Dinah, Righting Wrongs: Reparations in the Articles on State Responsibility, 96 AJIL 833 (2002)CrossRefGoogle Scholar.

15 Edith Weiss, Brown, Invoking State Responsibility in the Twenty-first Century, 96 AJIL 798 (2002)CrossRefGoogle Scholar.

16 Rosenstock, Robert, The ILC and State Responsibility, 96 AJIL 792 (2002)CrossRefGoogle Scholar.

17 Schachter, Oscar, The Invisible College of International Lawyers, 72 Nw. U. L. Rev. 217 (1977)Google Scholar.

18 E.g., McCaffrey, Stephen, Is Codification in Decline? 20 Hastings Int’l & Comp. L. Rev. 639, 643-48 (1997)Google Scholar (discussing unsuccessful ILC work on the status of the diplomatic courier and diplomatic bag and other ILC projects with limited influence).

19 See Symposium on Method in International Law (Steven, R. Ratner & Anne-Marie, Slaughter eds.), 93 AJIL 291 (1999)Google Scholar.

20 See, e.g., Eagleton, Clyde, The Responsibility of States in International Law (1928)Google Scholar.

21 As Ian Brownlie notes, standard nineteenth-century international law treatises such as Hall, Phillimore, and Calvo contained little or no discussion of state responsibility in this wider sense. Even in the twentieth century, Brierly’s famous treatise on international law did not address state responsibility as a distinct issue. Ian Brownlie, System of The Law of Nations: State Responsibility, PT. I, at 2, 7 (1983).

22 See, e.g., International Law of State Responsibility for Injuries to Aliens, supra note 4; Goldie, L. F. E., State Responsibility and the Expropriation of Property, 12 Int’l Law. 63 (1978)Google Scholar.

23 See Edwin, M. Borchard, “Responsibility of Slates “ at the Hague Codification Conference, 24 AJIL 517 (1930)Google Scholar; Green, H. Hackworth, Responsibility of States for Damages Caused in Their Territory to the Person or Property of Foreigners, 24 AJIL 500 (1930)Google Scholar. See generally Matsui, Y., The Transformation of the Law of State Responsibility, 20 Thesaurus Acroasium 1 (1993)Google Scholar. Ago’s first Report on state responsibility includes a useful compendium of the various codification efforts prior to World War II, including by the Institute of International Law and the International Law Association. Roberto Ago, First Report on State Responsibility: Review of Previous Work on Codification of the Topic of the International Responsibility of States, [1969] 2 Y.B. Int’l L. Comm’n 125,141-55, UN Doc. A/CN.4/SER.A/1969/Add.l.

24 Matsui, supra note 23, at 32-33.

25 See Zemanek, Karl, Responsibility of States: General Principles, 4 Encyclopedia of Public International Law 219, 228 (2000)Google Scholar- (central role of state responsibility makes codification “imperative”).

26 1949 Y.B. Int’l L. Comm’n 46, 49-50, UN Doc. A/CN.4/SER.A/1949.

27 García-Amador, supra note 3, at 176, para. 11.

28 Id.

29 García-Amador’s revised draft, “Responsibility of the State for Injuries caused in its territory to the person or property of aliens,” is set forth in his sixth Report, [1961] 2 Y.B. Int’l L. Comm’n 46, UN Doc. A/CN.4/SER.A/ 1961 /Add. 1; see also F. V. García-Amador, Louis B. Sohn, & R. R. Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens (1974).

30 E.g., Meron, Theodor, Human Rights and Humanitarian Norms as Customary Law 136 n.1, 157 n.68 (1989)Google Scholar.

31 Crawford, supra note 1, at 15 & n.45.

32 Id. at 2.

33 Subcommittee Report, supra note 7, at 228.

34 Id. at 253.

35 The commentaries describe Ago as the person “responsible for establishing the basic structure and orientation of the project.” Commentaries, Introduction, para. 2.

36 During the second reading, the second part was divided into two parts, one dealing with the legal consequences of an unlawful act for the state committing the breach, the other with “implementation of state responsibility” by other states. This approach had been contemplated by Ago, who identified a potential “third task” of “implementation” and “questions concerning settlement of disputes” in his 1970 Report. He noted that this third task could be considered after the first two tasks—concerning the origins and forms of international responsibility— were completed. Roberto Ago, Second Report on State Responsibility, [1970] 2Y.B. Int’l L. Comm’n 177, 178, para. 8, UN Doc. A/CN.4/SER.A/1970/Add.l.

37 Report of the International Law Commission on the Work of Its Fifteenth Session, [1963] 2 Y.B. Int’l L. Comm’n 187, 224, para. 55, UN Doc. A/CN.4/SER.A/1963/Add.l.

38 Roberto Ago, First Report of the Special Rapporteur, [1969] 2 Y.B. Int’l L. Comm’n 125, UN Doc. A/CN.4/ SER.A/1969/Add.l.

39 Report of the International Law Commission on the Work of Its Thirty-second Session, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2, at 26, 30, UN Doc. A/CN.4/SER.A/1980/Add.l (Part 2).

40 Crawford, supra note 1, at 2, 3.

41 Willem Riphagen, Second Report on the Content, Forms and Degrees of International Responsibility, [ 1981 ] 2 Y.B. Int’l L. Comm’n, pt. 1, at 79, 82, UN Doc. A/CN.4/SER.A/1981/Add.l (Part 1) (“[T]he manner in which the ‘primary rules’ are established and the different functions of those ‘primary rules’ cannot but influence both the various contents of ‘State responsibility’ and the modalities of its ‘implementation’.”).

42 Art. 55.

43 Gaetano Arangio-Ruiz, Preliminary Report on State Responsibility, [1988] 2 Y.B. Int’l L. Comm’n, pt. 1, at 42, UN Doc. A/CN.4/SER.A/1988/Add.l (Part 1).

44 Gaetano Arangio-Ruiz, Second Report on State Responsibility, [1989] 2 Y.B. Int’l L. Comm’n, pt. 1, at 23-30, UN Doc. A/CN.4/SER.A/1989/Add.l (Part 1).

45 For the articles as adopted on first reading, see Draft Articles on State Responsibility Provisionally Adopted by the International Law Commission on First Reading, in Report of the International Law Commission on the Work of Its Forty-eighth Session, [1996] 2Y.B. Int’l L. Comm’n, pt. 2, at 58, UN Doc. A/CN.4/SER.A/1996/Add.l (Part 2), Reprinted in Crawford, supra note 1, at 348 [hereinafter First Reading Articles].

46 A very useful table tracing the ILC’s consideration of the articles from their first through their second reading can be found in Crawford, supra note 1, at 315-46.

47 GA Res. 50/45, para. 3 (Dec. 11, 1995).

48 As the Commission noted, “ [I] t 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 consequences of the violation.” Report of the ILC on the Work of Its Twenty-second Session, [1970] 2 Y.B. Int’l L. Comm’n, supra note 36, at 271, 306, para. 66(c). Ago’s distinction between primary and secondary rules differs from the dichotomy drawn by H. L. A. Hart, who characterized secondary rules as rules about rules, addressing the creation, interpretation, and enforcement of the primary rules of obligation. H. L. A. Hart, The Concept of Law 91-92 (1961). In Hart’s conception, the Vienna Convention on the Law of Treaties would set forth secondary rules of how key international law primary rules (treaties) are formed, interpreted, and terminated. For more on the ILC’s primary/ secondary distinction, see infra notes 56-61 and accompanying text.

49 Crawford, supra note 1, at 12.

50 The rules enunciated in the draft articles are intended to reflect a “single general régime of State responsibility.” Commentaries, Art 12, para. 5. The one exception to the uniformity of the régime involves serious breaches of peremptory norms under Articles 40 and 41—the remaining vestige of the category of state crimes—which the ILC acknowledges “necessarily affect the vital interests of the international community as a whole and may entail a stricter régime of responsibility than that applied to other internationally wrongful acts.” Id., para. 7.

51 One of the few exceptions in the common law is civil procedure, which sets forth a distinctive set of rules that apply across the various substantive areas of law—although the common law still distinguishes civil procedure from criminal and administrative procedure and thus does not treat procedure as a fully homogeneous field.

52 See supra note 4 and corresponding text; see also Allott, supra note 5, at 12; Baxter, R. R., Reflections on Codification in Light of the International Law of State Responsibility for Injuries to Aliens, 16 Syracuse L. Rev. 745, 748 (1964-65)Google Scholar (“The circumstances under which responsibility attaches and the remedies to be provided for violations of the rules of law cannot be divorced from the substantive rules of conduct themselves.”); Gray, Christine, Is There an International Law of Remedies? 1986 Brit. Y.B. Int’l L. 25, 27 Google Scholar.

53 Matsui, supra note 23, at 55.

54 Recognizing that none of the articles is sacrosanct, the ILC in its second reading moved the provision allowing lex specialis from the section addressing the consequences of breach to the general provisions that apply to the text as a whole. See Crawford, supra note 1, at 336 (drafting history of Article 55).

55 But see Simma, Bruno, Self-Contained Régimes, 1985 Neth. Y.B. Int’l L. 111 Google Scholar (questioning whether these régimes are fully self-contained).

56 Although the Commission’s rules permit voting, and informal straw polls do occur, its general practice is to pursue a final result that reflects a consensus among the members. This was the case for the state responsibility articles as well. On matters involving significant divisions of opinion on the Commission (for example, Articles 40 and 41), the commitment to consensus decision making probably created additional space within which the special rapporteur could try to devise compromise outcomes acceptable to contending camps.

57 Brownlie, supra note 21, at 36, 163.

58 Chinkin, Christine, A Critique of the Public/Private Dimension, 10 Eur. J. Int’l L. 387, 395 (1999)CrossRefGoogle Scholar.

59 Crawford, James, Revising the Draft Articles on State Responsibility, 10 Eur. J. Int’l L. 435, 439 (1999)CrossRefGoogle Scholar.

60 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (May 24); see infra notes 73-74 and corresponding text. Federalism clauses are considered by the draft articles to be lex specialis, qualifying the general secondary rule of Article 4 that states are responsible for acts of territorial units, rather than an element of the primary rule’s specification of the duties owed by federal states. See Commentaries, Art. 4, para. 10.

61 Commentaries, Art. 2, paras. 3, 10.

62 See, e.g., Crawford, supra note 59, at 437.

63 Guido Calabresi & A. Melamed, Douglas, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972)Google Scholar.

64 For example, in response to criticisms that the draft articles allow countermeasures in response to any breach of international law, Crawford provides a formalistic rather than a functional response: “state responsibility covers the whole field of the primary norms of international law.... It follows that the régime of countermeasures covers that whole field as well.” Crawford, James, On Re-Reading the Draft Articles on State Responsibility, 92 ASIL Proc. 295, 298-99 (1998)Google Scholar.

65 Crawford, Remarks, in United Nations, supra note 6, at 52, 53.

66 Crawford, supra note 1, at 12-14.

67 Article 8 makes conduct by a person or group attributable to the state if the person or group “is in fact acting on the instructions of, or under the direction or control of, that State.”

68 The commentaries note the different approaches to the meaning of “control” taken by the International Court of Justice in its 1986 Nicaragua Merits Judgment (imposing a rather high test for determining whether conduct by the contras was attributable to the United States), as compared with the seemingly less demanding standard applied by the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Tadić in assessing individual criminal responsibility. Commentaries, Art. 8, paras. 4, 5.

69 Commentaries, Art. 4, para. 11.

70 Commentaries, Art. 5, paras. 1-7.

71 Other new articles added in the later stages of the ILC’s deliberations include Articles 26 (peremptory norms), 33 (scope of obligations covered), 40 (breaches of obligations under peremptory norms), 43 (notice of claim), 45 (loss of right to invoke responsibility), 47 (plurality of responsible states), 53 (termination of countermeasures), 54 (measures by states other than injured states), and 58 (individual responsibility). Crawford, supra note 1, at 315-46.

72 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (May 24).

73 See Gordon, A. Christenson, Attributing Acts of Omission to the State, 12 Mich. J. Int’l L. 312 (1991)Google Scholar.

74 See, e.g, Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16,1987,1522 UNTS 3, 26ILM 1550 (1987); Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 ILM 22 (1998) (draft version), available at <http://www.unfccc.de/> (final version). These agreements contain what Ago characterized as “obligations of result.”

75 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, Art. 2(d), 660 UNTS 195; see also Velásquez Rodríguez Case, Inter-Am. Ct. H.R. (ser C) No. 4 (1988), 28 ILM 291 (1989) (duty to ensure full enjoyment of human rights to all within territory).

76 See, e.g., SC Res. 1373, para. 2 (Sept. 28, 2001), Reprinted in 40 ILM 1278 (2001) (prohibiting states from harboring terrorists).

77 E.g., International Crimes Of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Weiler, Joseph, Cassese, Antonio, & Spinedi, Marina eds., 1989)CrossRefGoogle Scholar; Georges, Abi-Saab, The Uses of Article 19, 10 Eur. J . Int’l L. 339 (1999)Google Scholar; Pellet, Alain, Can a State Commit a Crime? Definitely, Yes! id. at 425 Google Scholar.

78 The debate proceeded on various levels, of both substance and rhetoric, but generally without reference to contemporary legal scholarship in other areas. Recently, some scholars have suggested that the most fundamental difference between civil and criminal liability may be that between pricing and prohibiting. See, e.g., John, C. Coffee Jr., Paradigms Lost: The Blurring of the Criminal and Civil Law Models—and What Can Be Done About It, 101 Yale L.J. 1875 (1992)Google Scholar. From this perspective, even without Article 19, the régime of state responsibility seems in some respects more akin to criminal than to civil responsibility. Civil law addresses behavior that has both social costs and benefits, with the goal of deterring rather than prohibiting conduct, through pricing of instances where the costs of the behavior outweigh its benefits. Criminal law, in contrast, seeks to prohibit certain behavior completely. Determining which paradigm fits international law is difficult, but its characterization of conduct as “unlawful” and its focus on cessation, restitution, and pacta sunt servanda, rather than on money damages, suggest that international law seeks to prohibit, rather than to price, conduct. See Shelton, supra note 14. Of course, international law lacks notions of punitive damages or punishment—two mechanisms commonly used by the criminal law to deter illegal conduct. However, it does employ other deterrent mechanisms more characteristic of criminal than of civil law, namely social stigma and pressure. And, like criminal law, it seeks to influence behavior through education and socialization. All of this suggests that perhaps what needs further development in international law is not a concept of criminal responsibility, as proponents of Article 19 suggested, but of civil responsibility—that is, responsibility for acts that cause injury (and should therefore be compensated for) but are not prohibited. The treatment of injurious acts not prohibited by international law has been the subject of a separate ILC study, the first phase of which was also completed in 2001. International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law (Prevention of Transboundary Harm from Hazardous Activities), ILC 53d Report, supra note 1, at 366. However, the Commission was not lured by the siren song of law and economics, instead developing a draft that “focused on a régime of prevention.... emphasizing risk management, cooperation, and consultation by states.” Rosenstock, Robert & Kaplan, Margo, The Fifty-third Session of the International Law Commission, 96 AJIL 412, 416 (2002)CrossRefGoogle Scholar.

79 Abi-Saab, supra note 77.

80 Commentaries, Art. 40, paras. 1,4,5. Dinah Shelton’s essay suggests reservations about the prominence given to peremptory norms in Article 40. Shelton, supra note 14, at 841-44.

81 At the final stages of its deliberations, the Commission deleted a related provision dealing with damages reflecting the gravity of such breaches. ILC 53d Report, supra note 1, para. 49.

82 See, e.g., Crawford, supra note 1, at 25, 38-39.

83 See Wesley, Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913)Google Scholar.

84 Crawford, supra note 1, at 11 (noting the rejection of proposals for Article 1 to qualify the term “obligation” by “towards another State” or “to an injured State”); see, e.g., Article 12 (breach of an obligation occurs whenever there is nonconforming conduct, regardless of the origin or character of the obligation).

85 Art. 33(2).

86 Barcelona Traction, Light & Power Co. (Belg. v. Spain), New Application, 1970 ICJ Rep. 4, 32 (Feb. 5).

87 Art. 30.

88 Arts. 31, 35-37. Notwithstanding the seemingly absolute wording of these articles, Crawford argues that they are intended to preserve the ability of claimant states “to elect as between the available forms of Reparation. Thus it may prefer compensation to the possibility of restitution . . . . [o]r it may content itself with declaratory relief.” Crawford, supra note 1, at 44.

89 Arts. 40, 41.

90 Although the articles do set forth certain limited consequences for grave breaches of peremptory norms, these consequences pertain to other states (primarily not to recognize as lawful the situation created by the unlawful act), not to the breaching state itself. See supra note 81 and corresponding text.

91 Chorzów Factory (Ger. v. Pol.), 1928 PCIJ (ser. A) No. 17 (Sept. 13).

92 See Calabresi & Melamed, supra note 63; Cooter, Robert, Prices and Sanctions, 84 Colum. L. Rev. 1523 (1984)CrossRefGoogle Scholar.

93 Art. 52(1), (3).

94 Bederman, supra note 13, at 817 (citing Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (2001)Google Scholar).

95 First Reading Articles, pt. 3 [Arts. 54-60 & Annexes I, II], Reprinted in Crawford, supra note 1, at 362-65.

96 Rosenstock, Robert, The Forty-seventh Session of the International Law Commission, 90 AJIL l06, 107 (1996)Google Scholar (“American readers of a certain age may recall the name Rube Goldberg in connection with the proposed mechanism.”)

97 Cf. Bederman, supra note 13, at 824.

98 ILC 53d Report, supra note 1, para. 60.

99 See Bederman, supra note 13, at 819-22 (discussing “feedback loops” between the ILC and the ICJ).

100 See, e.g., Oppenheim, Lassa, International Law 298-99 (Lauterpacht, Hersch ed., 8th ed. 1955)Google Scholar.

101 See, e.g., 1 Rousseau, Charles, Droit International Public 141-42, sec. 118 (1970)Google Scholar.

102 Rainbow Warrior (N.Z./Fr.), 20 R.I.A.A. 217, 254, 82 ILR499, 555 (1990); Commentaries, Art. 25, para. 10.

103 Commentaries, Art. 25, para. 5. The commentary uses a key authority in an unfamiliar way; Secretary of State Webster’s exchange with the British minister following the 1837 Caroline incident is invoked to support a necessity defense, even though it is more commonly understood as having to do with self-defense. Jennings, R. Y., The Caroline and McLeod Cases, 32 AJIL 82, 91 (1938)Google Scholar.

104 Roberto Ago, Eighth Report on State Responsibility, [1979] 2 Y.B. Int’l L. Comm’n 51, para. 81, UN Doc. A/CN.4/SER.A/1979/Add.l (Part I).

105 Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 4, 39-45 (Sept. 25).

106 Id. at 40, 42, paras. 51, 54.

107 Commentaries, Art. 25, para. 14; see Stephen, M. Schwebel, The Influence of the International Court of Justice on the Work of the International Law Commission and the Influence of the Commission on the Work of the Court, in Making Better International Law: The International Law Commission at 50, at 161, 163 (1998)Google Scholar.

108 E.g., Art. 19 (Articles 16-18 are “without prejudice to” a state’s responsibility where another state aids or assists, directs and controls, or coerces it in performing a wrongful act). There are clauses with similar effect in Articles 27, 33, 41, 50, 54, 55, 56,57, 58, and 59. Articles 55 and 56 are “supersaver” clauses, confirming the continued operation of lex specialis rules and other legal rules affecting state responsibility.

109 “[ T ] n e current state of international law on countermeasures taken in the general or collective interest is uncertain Chapter II includes a saving clause which reserves the position and leaves the resolution of the matter to the further development of international law.” Commentaries, Art. 54, para. 6. The Commission was similarly careful in not attempting to list norms regarded as peremptory. Id., Art. 40, para. 6.

110 See supra notes 67-69 and corresponding text.

111 Commentaries, Art. 25, para. 15.

112 “There is a breach of an international obligation . . . when such conduct constitutes ‘a breach of an international obligation . . .’.” Id., pt. 1, ch. III, para. 1.

113 For example, the commentary to Article 36 is a splendid little essay on key issues in compensation.

114 Commentaries, Art. 16, para. 3.

115 Id., Art. 10, para. 7.

116 The commentaries make substantial use of awards and decisions of the Iran-United States Claims Tribunal; the table of cases in Professor Crawford’s excellent volume cites twenty-eight Tribunal awards. Crawford, supra note 1, at xv-xxxiii. This confirms the view of the late Professor Lillich and others who have argued that the Tribunal is important in the development of international law, and is not a lex specialis backwater. Tribunal awards are cited with particular frequency on attribution issues, since the 1979 Islamic Revolution in Iran was frequently accompanied by exercises of public authority by actors not conforming to conventional conceptions of the state.

117 See International Incidents: The Law That Counts in World Politics (Michael Reisman, W. & Andrew, R. Willard eds., 1988)Google Scholar.

118 Higgins, Rosalyn, Problems and Process: International Law and How We Use It 168 (1994)Google Scholar.

119 See Commentaries, Art. 31, paras. 9-10.

120 See Caron, supra note 11, at 861-66 (indicating the ILC’s reasons for recommending that the Assembly simply note the articles).