Symposium : Assessing the Work of the International Law Commission on State Responsibility

• Dupuy, Pierre-Marie

Abstract

The multilateral dimension of a number of international obligations raised the need for a review of the classical law of state responsibility, originally designed in the context of bilateral inter‐state relationships. In this lengthy process, the International Law Commission sought to enhance the function of the responsibility of states as an instrument for restoring international legality. This tendency was reinforced by the introduction in its Draft Article 19 (1976–1996) of two categories of international wrongful acts: ‘delicts’ and ‘crimes’ of states. The final solution adopted by the ILC had to take into account the negative reactions of several states to this distinction. It thus maintains the distinction, while abandoning the ambiguous term of ‘crime of state’. However, it consequently fails to differentiate the legal regime of obligations of the state responsible for the violation of ‘obligations under peremptory norms of general international law’; the ILC substantially clarifies the notion of ‘injured state’. Regrettably, criticism by some states of the draft as adopted in August 2000 resulted in the consolidation, or even introduction, of some incongruities in the final Draft Articles. Nevertheless, the final text constitutes a major contribution to the consolidation of the international law of state responsibility as a tool for the reparation of international wrongs and the restoration of international legality. Its weaknesses are not those of its authors but primarily of states and their political incapacity to develop the international institutions required by the normative design of new concepts such as ‘peremptory norms of international law’.