Symposium : State Responsibility

• Gray, C

Abstract

The recent case before the International Court of Justice, <it>Paraguay v. USA (Provisional Measures)</it>, highlights dramatically the fundamental uncertainties as to the availability of restitution in international law, and should serve as a warning to the International Law Commission not to be unduly dogmatic or over-ambitious in its quest for universal rules in its Draft Articles on the choice between restitution and compensation. The caution of the International Court of Justice in this and other cases provides a marked contrast to the ILC's 1996 Draft Articles. The current Draft Articles take a firm view on the primacy of restitution; this inevitably entails the need for limits and exceptions to the award of restitution. The ILC has run into difficulties in trying to provide for these while maintaining its distinction between primary and secondary rules. Moreover, if the exceptions are too wide they will offer loopholes to the wrongdoing states and undermine the primacy the ILC wants to assert; if the limits are too narrow they will be unrealistic. The reactions of states to the Draft Articles shows the need for the ILC to be flexible in its approach.