The ILC articles on state responsibility: the paradoxical relationship between form and authority

摘要

The adoption by the International Law Commission (ILC) in 2001 of its articles on state responsibility is an achievement that presents a paradox. This essay is about the form and authority of the articles, and the paradox that they could have more influence as an ILC text than as a multilateral treaty. The essay addresses the questions of the appropriate authority to be given an ILC text, why undue influence may be attributed to an ILC text (particularly by arbitral tribunals), and how an arbitral tribunal should approach interpreting and applying the articles on state responsibility. The many members of the ILC, learned groups such as the Study Group on State Responsibility of the International Law Association (ILA) and the Panel on State Responsibility of the American Society of International Law, and government officials deserve our thanks for these articles. Probably no person deserves more credit for the thrust and content of the articles than Roberto Ago, one of the many special rapporteurs on the topic. Special thanks for the efforts of Professor James Crawford, the last special rapporteur, are also particularly appropriate. In addition, thinking about Crawford's achievement yields an important insight. He, like Ago, made a major contribution to the content and integrity of the articles, in his case primarily through streamlining the rules and making them more coherent. But perhaps even more important, Crawford deserves credit for getting the task done: for closing the deal. That the adoption in itself was such a major achievement testifies to the unwieldy nature of the ILC and the controversial nature of some of the articles. Indeed, the scope of the issues addressed by these articles, the controversies, both scholarly and governmental, that surrounded certain provisions, and the cumbersome nature of the ILC had led many to conclude that its consideration of this topic could go on indefinitely. Crawford not only concluded the work; he did so professionally and with a minimum of diplomatic bloodshed, all the while coordinating the ILC effort with virtually every interested organization.