Symposium : State Responsibility

• Lowe, V

Abstract

The International Law Commission's Draft Articles on State Responsibility propose to characterize wrongful conduct in respect of which there exist exculpatory circumstances as 'not wrongful'. The Commission could have characterized them as wrongful but excused. This paper explores the theoretical differences between those alternatives and, in particular, the distinction between the right of an injured state to waive its entitlement to reparation and the right of an injured state to release other states from their obligation to obey the law. It argues that even if the creation of international legal obligations is, by virtue of the principle of opposability, an essentially bilateral matter, violation of those obligations engages a wider community interest and is not a matter of concern to the law-breaker and the injured state alone. The paper suggests that, as a matter of policy, it would be preferable to regard such conduct as 'wrongful but excused'. That might in practice strengthen the normative pull of rules, and make it easier to deal with situations where third state rights are affected by violations of international law.