Symposium : State Responsibility

• Abi-Saab, G

Abstract

In his First Report to the International Law Commission as Special Rapporteur on State Responsibility, Professor Crawford severely criticizes the category of 'crime of state' and the attendant dual regime of responsibility introduced by Article 19 of the Draft Articles; he proposes to set it aside. This essay endeavours to respond to these criticisms by distinguishing the 'text' of Article 19 from the 'concept' behind it. Admitting the shortcomings of the 'text', it is argued that these can be easily perfected through good draftsmanship, making it more rigorous and giving if full effect throughout the Draft Articles. The concept behind the text remains of major importance, however, reflecting as it does in the field of state responsibility the emergence in contemporary international law of a hierarchy of norms ensuing from the recognition by the international community of the pre-eminence of certain common interests and values and the consequent necessity of surrounding them with maximum legal protection. The criticism of the concept of 'crime of state' based on the 'domestic analogy' ignores its specificity in international law. The recommended alternative course of action of reverting to a unitary regime while making special allowance for the effects of violating <it>jus cogens</it> norms (and <it>erga omnes</it> obligations) would necessarily reintroduce a binary regime. Moreover, it is feared that the abandonment of the dual regime of responsibility would be largely perceived as a setback in the evolution of general international law.