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

• Klein, Pierre

Abstract

Discussions surrounding the concept of the international state crime have focused to a large extent on the mode of reaction to breaches of peremptory norms of the international legal order. In particular, the question arose whether UN mechanisms aimed at preserving international peace and security should be regarded as a privileged — or even exclusive — means to implement this type of ‘aggravated’ responsibility. Drawing on Security Council practice, Special Rapporteurs Ago and Riphagen suggested that UN organs should play a central role in such a situation. Ascribing a central function to UN organs in reaction to international crimes has, however, drawn criticism on several grounds, such as the limits to the Security Council's <it>ratione materiae</it> competence and its lack of legitimacy in representing the international community. Proposals to develop new institutional mechanisms, put forward by Arangio&hyphen;Ruiz, have, however, proved no more successful, and have been condemned as ‘utopian’. Article 54 of the final version of the Articles on State Responsibility appears to leave the question open, since, following Special Rapporteur Crawford, the ILC chose not to exclude any specific mode of reaction to serious breaches of peremptory norms of international law, whether carried out within or outside existing international institutions. This probably better reflects the present state of institutionalization of the international society.