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.

Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:

The 1994 Uruguay Round revision of the dispute settlement mechanism under the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) has made it a forum both for traditional trade issues and for interests ranging from environmental protection to national security. The limits of GATT jurisdiction have become important issues of dispute settlement within the WTO, especially as the emergence of the WTO and its rule-based, quasi-obligatory dispute settlement system has spurred a significant shift toward legalism. Constitutional structures are developing much faster in international trade law than in any other area of international law and, in the aftermath of the Uruguay Round, are integrating ever more aspects of economic relations among states. Within the WTO regime the dispute settlement mechanism established by the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) plays a prominent role in enforcing its rules and reconciling a wide array of the members’ interests. The limits of the reach of the dispute settlement mechanism, given its obligatory character, are, to a certain degree, the limits of the constitutionalization of the organization as a whole.

When Sulaiman Al-Adsani traveled from the United Kingdom to Kuwait to repel Saddam Hussein’s invasion in 1991, he never dreamed he would depart with bruises and burns inflicted by the very government he had sought to defend. According to Al-Adsani, his troubles began when he was accused of releasing sexual videotapes of Sheikh Jaber Al-Sabah Al-Saud Al-Sabah, a relative of the emir of Kuwait, into general circulation. After the first Gulf war, with the aid of government troops, the sheikh exacted his revenge by breaking into Al-Adsani’s house, beating him, and transporting him to a Kuwaiti state prison, where his beatings continued for days. Al-Adsani was subsequently taken at gunpoint in a government car to the palace of the emir’s brother, where his ordeal intensified. According to Al-Adsani, his head was repeatedly submerged in a swimming pool filled with corpses and his body was badly burned when he was forced into a small room where the sheikh set fire to gasoline-soaked mattresses.

At the twentieth anniversary of the World Trade Organization (WTO), the WTO’s dispute settlement system is celebrated as one of the organization’s biggest achievements. Although powerful members such as China, the European Union (EU), and the United States are regularly on the losing side of WTO trade disputes, overall support for the system remains high. If anything, it has increased over time, with early criticism by civil society waning. Compare this situation to investor-state dispute settlement (ISDS), centered around the World Bank’s International Centre for Settlement of Investment Disputes (ICSID). ISDS, which started in earnest around the same time that the WTO was created, is under fire not only in capital-importing countries ranging from Ecuador, Indonesia, and South Africa but also in capital-exporting nations such as Australia, Germany, and the United States. Indeed, in the ongoing EU-U.S. negotiations over a Transatlantic Trade and Investment Partnership (TTIP), ISDS emerged as one of the biggest bones of contention.

On August 2,1990, Iraqi forces invaded and occupied Kuwait, beginning a seven-monthlong series of events that would come to be known as the Persian Gulf war. Perhaps the most thoroughly examined of these events was the thirty-eight-day air campaign, which began on January 17,1991, and marked the beginning of the offensive by the coalition of states arrayed against Iraq, which ended after the latter’s withdrawal from Kuwait. Much has been written about the air campaign and its objectives, its implications for the future use of military force, and the extent to which it conformed to international law. Although this article will focus on the last of these topics, a contextual understanding of the air campaign is essential to a serious consideration of the military necessity and proportionality issues that lie at the heart of the legal analysis.

Some of the worst human rights catastrophes of the twentieth century were famines created or manipulated by governments. In 1932 at least five million Ukrainians starved to death, while hunger was largely unknown across the border in Russia.The Soviet government imposed disastrous grain quotas on the Ukraine, then let its own citizens literally collapse in the streets while it exported grain to further its “revolutionary” objectives.The Ethiopian famine of 1983-1985, preserved in popular memory as a natural disaster of biblical proportions, most fiercely struck those parts of the country that harbored irredentist movements. In a stunning, but telling, rejoinder to international pity for the purportedly hapless Ethiopian government, the Ethiopian foreign minister told a U.S. chargé d’affaires that “food is a major element in our strategy against the secessionists.” Since 1994, more than two million out of a population of twenty-two million in North Korea have starved to death, while South Koreans, affected by similar weather patterns, have remained completely untouched by famine. Nongovernmental organizations (NGOs), trying to distribute aid earmarked for famine victims, have watched helplessly as the government callously interfered and have arrived at the conclusion that “the authorities are deliberately depriving hundreds of thousands of truly needy Koreans of assistance.”

The problem of recognition of states and governments has neither in theory nor in practice been solved satisfactorily. Hardly any other question is more controversial, or leads in the practice of states to such paradoxical situations.The reason for this lies in the fact that the term recognition points to twoentirely different acts, not clearly separated either in theory or in practice. A codificationof the norms of general (common) international law concerning recognition must above all furnish a clear distinction between the two functions known as recognition.

Temporary protection of refugees (TP) gained surprising prominence during the 1990s as a response to forced migration, at times seeming poised to displace the regime based on the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. The unprecedented Humanitarian Evacuation Programme to airlift Kosovar refugees to temporary safety in European and more distant states exemplifies TP’s appeal and adaptability. The Kosovo experience, by restoring faith that some mass influxes are genuinely temporary, may reinvigorate enthusiasm for TP, which had flagged during the endgame to the Bosnian refugee crisis.

Thirty-three years ago I published an article in this Journal entitled Who Killed Article 2 (4)? or: Changing Norms Governing the Use of Force by States, which examined the phenomenon of increasingly frequent resort to unlawful force by Britain, France, India, North Korea, the Soviet Union, and the United States. The essay concluded with this sad observation:

The failure of the U.N. Charter's normative system is tantamount to the inability of any rule, such as that set out in Article 2(4), in itself to have much control over the behavior of states. National self-interest, particularly the national self-interest of the super- Powers, has usually won out over treaty obligations. This is particularly characteristic of this age of pragmatic power politics. It is as if international law, always something of a cultural myth, has been demythologized. It seems this is not an age when men act by principles simply because that is what gentlemen ought to do. But living by power alone ... is a nerve-wracking and costly business.

It is a commonplace observation that the world arena today exhibits a number of systems of public order, each demanding and embodying the values of human dignity in very different degree.

Since the 19th century, governments have joined to create specialized international organizations to control the effects of new technologies and to regulate increased economic ties between nations. The number of such organizations has increased dramatically since the Second World War, and it is likely that this approach to international problem solving through permanent, specialized agencies will continue. Yet for nations to act effectively in concert, the organization through which they act must command the respect of its members, and they must abide by the organization’s decisions. Moreover, the way in which these decisions are made—the formal procedures and informal practices followed by the organization’s members—will have a direct and immediate effect on the members’ observance of them. Even the generally accepted substantive rules of an organization are not likely to be observed if they are perceived as arbitrarily applied without proper voting safeguards.

Critiques of decision making in international organizations are often framed in terms of the democratic deficit. Leveled against the United Nations Security Council, the charge has become more pointed in light of recent quasi-legislative and quasi-judicial acts—most notably the adoption of Resolutions 1373 and 1540 on the financing of terrorism and the spread of weapons of mass destruction, respectively, and the Resolution 1267 sanctions regime, which targets individuals suspected of involvement in terrorism. With the first two resolutions, the Security Council imposed general obligations on all states for an indefinite period; with the third, it set up a sanctions committee that has courtlike powers to identify and freeze the assets of individuals, groups, and corporations. Despite broad sympathy among the UN membership for collective counterterrorist action in the aftermath of the attacks of September 11, 2001, a degree of skepticism accompanied these initiatives from the start and grew with the diplomatic debacle surrounding the war in Iraq. Some critics asked whether an “imperial” Security Council had become an instrument for the imposition of “hegemonic international law.” The Council has moved to address these concerns, but they remain serious enough that the regimes established under Resolutions 1267, 1373, and 1540 are at risk of collapsing.