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

• Wyler, Eric

Abstract

The article endeavours to determine whether there has been any substantial change in the law of state responsibility brought about by the ILC through the replacement of the concept of ‘crime’ in old Article 19 by that of ‘serious breach’ in Article 40. Restricting the analysis to the viewpoint of international legality, it is argued that this new concept follows the line sketched out by Roberto Ago, as the new concept also aims at reinforcing international legality particularly through collective intervention based on the idea of states' legal interests whenever a serious breach of a peremptory norm of general international law occurs. Furthermore, the ILC commentary shows that serious breaches hardly differ from crimes <it>ratione materiae</it>. Similarly, a serious breach should be interpreted by recourse to the same criteria as those used by Article 19, namely, the essential importance of the obligation violated and the serious nature of the breach. Finally, when comparing the legal consequences of serious breaches to those of crimes, it seems legitimate to draw the conclusion that the former is the twin brother of the latter.