British Institute of International and Comparative Law

The Continuing Debate on a Un Convention on State Responsibility

Author(s): James Crawford and Simon Olleson
Source: The International and Comparative Law Quarterly, Vol. 54, No. 4 (Oct., 2005), pp. 959-971
Published by: Cambridge University Press on behalf of the British Institute of International
and Comparative Law
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THE CONTINUING DEBATE ON A UN CONVENTION ON STATE

RESPONSIBILITY
At its 59th session in 2004, the GeneralAssembly revisitedthe questionof what should
be done with the Articles on Responsibilityof States for InternationallyWrongfulActs
('the Articles'), adopted by the InternationalLaw Commission ('ILC') in 2001. By
Resolution 59/35, adoptedby consensus on 2 December 2004 on the recommendation
of the Sixth Committee,1the General Assembly once again resolved to defer further
considerationand any decision on the final form of the Articles, postponingthe matter
to its 62nd session in 2007. It also asked the Secretariatto preparea compendiumof
jurisprudenceand State practiceto assist the Assembly in its considerationof the topic
at that time.

I. BACKGROUNDTO THE DEBATEIN THE SIXTH COMMITTEE

At its 56th session in 2001, the Sixth Committeehad consideredwhat action to take in
relationto the final Articlescontained(togetherwith the accompanyingCommentaries)
in the Reportof the ILC on its 53rd session.2
The questionwas a controversialone even before the Articles were finally adopted
on second reading in August 2001. Significant divisions existed within the ILC as to
what course of action should be recommended to the General Assembly. Some
members strongly supportedthe immediate convening of a diplomatic conference in
order to conclude a convention based on the Articles. Others, including the Special
Rapporteur,were of the view thatthe GeneralAssembly should simply take note of the
Articles, and that any decision as to the preparationof an internationalconvention on
the subject should be deferredfor a period of years in orderto allow States to become
familiar with the Articles in practice. A compromise was reached: the ILC recommended to the GeneralAssembly that it take note of the Articles and annex them to a
resolution, deferringto a later stage the question whetheran internationalconference
should be convened with a view to concluding a conventionon the topic.3
1 GeneralAssemblyResolution59/35, 2 Dec 2000;UN Doc A/RES/59/35,adoptedat the
65thplenarymeetingof theGeneralAssembly(see UN Doc A/59/SR.65).Forthereportof the
SixthCommittee,
see UN Doc A/59/505.
2 For the Articles and Commentariessee Reportof the InternationalLaw Commissionon the
Workof its Fifty ThirdSession, UN Doc A/56/10, Ch IV. The Articles and Commentariesare

in JamesCrawford
The
withan introduction
andaccompanying
analyticalapparatus
reproduced
ILC's Articles on State Responsibility;Introduction,Text and Commentaries(CUP Cambridge
2002); versions have been producedin French(Les articles de la C.D.I. sur la responsabilitkde
l'Etat; Introduction,texte et commentaires(Pedone Paris2003)) and Spanish(Los articulos de Ia
Comisidnde Derecho Internacionalsobre la responsabilidadinternacionaldel Estado: introduccidn, texto y comentario(Dykinson Madrid2005)); a Chinese version is in press.
3 Report of the InternationalLaw Commisionon the Workof its Fifty Third Session (n 2),
(??72-3); for the recordof the debatewithinthe ILC, see UN Doc A/CN.4/SR.2709 (9 Aug 2001).

of Statesfor
J Peel,andS Olleson'TheILC'sArticleson Responsibility
See also J Crawford,

InternationallyWrongfulActs: Completionof the Second Reading' (2001) 12 EJIL963, 969-70.

set by theGeneralAssemblyin relation

Therecommendation
by theILCfollowedtheprecedent
andStatesuccession.TheILChadrecomto the ILC'sdraftarticleson thetopicof nationality
[ICLQvol 54, October2005 pp 959-972]
simon.olleson@gmail.com

doi: 10.1093/iclqilei045

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960

Internationaland ComparativeLaw Quarterly

The differences of opinion in the ILC as to the most appropriatefinal form for the
outcome of its work on State responsibilitywere to a large extent mirroredin the Sixth
Committeewhen the Articles were first discussed in 2001. There were 52 statements
in the general debate of 2001, made by individualdelegations or on behalf of groups
of States(the Nordic groupandthe SouthernAfricanDevelopmentCommunitygroup),
in all representing68 governments.4The Articles were welcomed, and there was
general (althoughnot universal)supportfor the ILC's proposedtwo-stage approachto
implementation.But on the ultimateform of the Articles there was a clear division of
views: some governmentsthoughtthatthere was no prospectthatthe Articles could be
transformedinto a convention along the lines of the Vienna Conventionon the Law of
Treaties; the best course was not to adopt the Articles in any formal mannerbut to
allow them to exert an influence on the crystallizationof the law of State responsibility throughapplicationby internationalcourts and tribunalsand State practice.Others
thoughtthat a convention on State responsibilitywas both desirableand achievable.A
few governments thought the matter should be immediately referred to a working
group or even a diplomaticconference.
The views of the majorityof delegations who spoke, however, were against any
immediatemove to a convention, and the Sixth Committee'sdraftresolutionreflected
this position. Adoptedby the GeneralAssembly by consensus, Resolution 56/83 of 12
December2001 took note of the Articles, the text of which was annexedto the resolution, and 'commend[ed]them to the attentionof Governmentswithoutprejudiceto the
question of their futureadoptionor other appropriateaction'."By operativeparagraph
4, the General Assembly decided to include the topic 'Responsibility of States for
InternationallyWrongful Acts' in the provisional agenda for its 59th session in the
autumnof 2004.

II. THE 2004 SIXTH COMMITTEEDEBATE

At the 59th session of the General Assembly in 2004, the considerationin the Sixth
Committeeof the topic of 'Responsibilityof States for InternationallyWrongfulActs'

mendedthat the draftarticlesbe adoptedin the form of a declaration(see Reportof the

InternationalLaw Commissionon the Workof its Fifty First Session; UN Doc A/54/10 and Corr
1 and 2) (1999) 14 at 44). Initiallythe GeneralAssembly postponedany decision to the following

as to the possibilityof the conclusionof a

sessionand invitedcommentsfromgovernments
convention(GeneralAssemblyResolution54/112, 9 Dec 1999; UN Doc A/RES/54/112).
Subsequently it took note of the draft articles, which were annexed to the resolution, invited
governmentsto take the principlescontainedin the articlesinto account when dealing with questions of nationalityof personsin the context of State succession, and decided to returnto the question of their final form at its 59th session in 2004 (GeneralAssembly Resolution 55/153, 12 Dec
2000; UN Doc A/RES/55/153). In 2004, the GeneralAssembly again invited governmentsto take
the principlescontainedin the draftarticles into account, encouragedthe elaborationof regional
or sub-regional instrumentsaddressing the question (an implicit reference to the Council of
Europe'sdraftProtocolon the avoidanceof statelessnessin relationto State succession, currently
underdiscussion), and again invited States to submit comments as to the advisabilityof conclusion of a legal instrumenton the subject, and postponedfurtherconclusion to its 63rd session in
2008 (GeneralAssembly Resolution 59/34, 2 Dec 2000; UN Doc A/RES/59/34).
4 For the summary records of the debates at the 56th session, see UN Does

A/C.6/56/SR.
11-24,27.

5GeneralAssembly Resolution 56/83, 12 Dec 2001; UN Doc A/RES/56/83, ?3.

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UN Conventionon State Responsibility

961

took place at the same time as considerationof the Report of the ILC on its 56th
session.6 Statementson the topic were made at the 15th and 16th meetings on 28 and
29 October2004 by 28 representativeson behalf of, in all, 34 States.7
Given the previousdivergenceof views in 2001, it was to be expected thata number
of States would press for the convening of a diplomatic conference when the subject
returnedto the Sixth Committee.In the event only a relatively small numberof States
adoptedthis position. The views expressedby delegationsrangedacross a broadspectrumbut revealed essentially two opposing positions.
On the one hand, a numberof speakerssuggested that the only appropriatemeans
by which to reflect the importanceof the Articles was for them to be transformedinto
a convention. Some seem to have taken this position in order to provide a chance to
reopen certaincontroversialissues, in particularthe triadof countermeasures(Articles
49-54), invocationby States other thanthe injuredState (Article 48), and the question
of the 'aggravated'rdgime of responsibilityfor 'serious breaches' of obligations arising underperemptorynorms of general internationallaw (Articles 40-1). The Russian
Federation,while emphasizingthe balanceof the Articles in reflectingbasic principles,
and their status with the Commentariesas 'a very valuable aid', nevertheless stated a
numberof concernswith particularprovisionswhich, it suggested,could and should be
adjustedduringthe preparationof an internationallybindinginstrument.To this end, it
proposedthat a working group should be establishedin orderto consider the Articles.
Cuba expressed concern as to the three controversialaspects of the Articles already
mentioned, and emphasized the need for a convention to make provision for binding
dispute settlement:it likewise proposedthe creationof an ad hoc committee or working group. Belarus, although agreeing that the Articles were generally balanced, also
suggested that certain aspects of the Articles would be open to reconsiderationat a
futurediplomaticconference. It identified, again, the question of invocationby States
other than the injured State and the notion of obligations erga omnes ('owed to the
internationalcommunityas a whole') more generally;these provisionsshouldbe better
defined or even replacedwith referencesto peremptorynorms (jus cogens).8 In addition the necessity of a bindingdisputeresolutionmechanismin orderto preventabuses
of countermeasureswas emphasized.
On the other hand, a group of States expressed the view that the action of the
GeneralAssembly in 2001 in commendingthe Articles to the attentionof governments
was sufficient and that no furtheraction was necessary or desirable.Notably this was
the position taken by the United Kingdom and the United States of America. The
United Kingdomemphasizedthe fragility of the compromisesreachedin the final text
and warned against the reopening of old and fruitless debates which
of
the.Articles,
lead to the unravellingof the text and a conventionwhich would receive few raticould
6 Reportof the ILC on the Workof its Fifty Sixth Session; UN Doc A/59/10 (2004).
7 For the summary records of the two meetings, see UN Doc AiC.6/59iSR.15 (The
Netherlands,Brazil, Japan,China, the USA, Belarus, Israel, United Kingdom, Finland,Portugal,
Greece, Slovakia, Australia,Austria, Spain, Uruguay, Venezuela, and Guatemala)and UN Doc
A/C.6/59/SR.16 (Thailand,Cyprus, France, Jordan,Germany,Russian Federation,Switzerland,
Mexico, Italy, and Cuba). Finlandmade a statementon behalf of itself and the otherNordic countries (Denmark,Iceland, Norway, and Sweden), while Australiamade a statementon behalf of
itself and Canadaand New Zealand. The following summaryis based on the texts of the statements made available by the delegations, and summariesof the statementsby the other delegations, both on file with the authors.
8 UN Doc A/C.6/59/SR.15 ?63.

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962

Internationaland ComparativeLaw Quarterly

fications. However, it recognizedthe call by some Statesfor futureconsiderationof the

final form of the Articles, and proposedplacing the topic on the agendaof the General
Assembly for furtherconsiderationat the 63rd session in 2008. Finland also emphasized the risk that submittingthe Articles to a diplomaticconference would entail, in
particularthe risk that the restatementof the law contained in the Articles would be
'eroded by compromisesand package-dealsthat would be an evident part of a diplomatic conference aimed at producinga convention on the matter'.It too proposedthat
the topic shouldbe placed on the agendaof the GeneralAssembly in the future,but not
before 2008. The United States of America strongly opposed any moves towards a
diplomaticconference to adopt a convention, and emphasizedthe importantinfluence
that the Articles are already exerting in their present form as a guide for States and
tribunals.
A varianton this position was taken by Australia(on behalf also of Canada and
New Zealand) which opposed the adoptionof a convention on the basis that it would
be too risky, but which proposed that an appropriatestatus could be given to the
Articles if they were adopted as a resolutionby the General Assembly. A preference
was expressed for such a resolutionto be adoptedat the currentsession as a matterof
priority,thus disposing of the item so far as the GeneralAssembly was concerned.
The representativeof Thailandexpressed the view that the careful balance in the
text of the Articles would not benefit from a process of furthernegotiation of a text
which was unlikelyto be widely ratified.Guatemala,while expressingconcernsin relation to the modalitiesof invocationby a Stateotherthanthe injuredState, preferredthat
the Articles be left to become a partof customaryinternationallaw throughtheirapplication by internationalcourts and tribunals;this would be simplerthan the conclusion
of a convention, especially since the Articles were already moving in this direction.
Whereas a convention on State responsibility would only bind States parties, if the
Articles were left to matureinto customaryinternationallaw they would apply to all
States. Italy felt that a convention would not be adequateto preservethe achievement
of the ILC; internationalpractice should be allowed to furthercontributeto the development of customary internationallaw. Consistently with this view Italy proposed
asking the Secretariatto collate internationalpracticefor the informationof the Sixth
Committee.The mattershould not, in its view, returnto the GeneralAssembly before
the 63rd session in 2008.
Thus some States favoured the convening of a conference or the adoption of
measurespreparatoryto such a conference with the result, intendedor not, of reopening the text. On the other hand, there was strong opposition to any steps in the direction of a conference and a preferencefor leaving the Articles in their presentform. As
between these contrastingpositions, the lowest common denominatorwas one of 'wait
and see'- although there were variationseven on this theme, different views of how
long to wait, differentexpectationsof what would be seen at the end of waiting.
Cyprusstatedthat,given the time and effort which had gone into the preparationof
the Articles, the only appropriatefinal form was a convention.It was not clear to what
extent it expected that the Articles would be reopened at a diplomaticconference;on
the one hand a conference would 'enable States to have full input into the eventual
text'; on the other hand a working group within the Sixth Committee should only be
asked to formulatea preambleandfinal clauses (includingprovisionson disputesettlement).
A number of States, while expressing the view that a convention was the only

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UN Conventionon State Responsibility

963

appropriatefinal form for the Articles given the importanceof the topic, opposed any
change to the substantiveprovisions. This was the case with Greece, which expressed
the view thatthe adoptionof the Articles as a convention,even if ratifiedby few States,
would give them greaterauthoritythanthey could have in theirpresentform. Although
criticising the predominanceof the unilateralinstitutionof countermeasuresover any
system of dispute settlement in the Articles, Greece opposed any change to the
substance of the Articles and called for the constitution of a working group whose
mandatewas limited to three specific tasks: the draftingof a preamble,the draftingof
the final provisions, and the drafting of a dispute settlement mechanism. Germany
emphasizedthat in its view the Articles to a large extent reflected customaryinternational law and had been widely appliedby internationalcourts and tribunals.In accordance with this position the Articles were likely over time to receive even wider
recognition;pending such a development there was no need to rush to a convention.
Accordingly,the questionwhethera conventionshould be concludedshould be put off
for a numberof years. But in any event the eventualconclusion of a conventionshould
not lead to a renegotiationof the substantiveprovisions of the Articles.
Similarly, Austria emphasized the importanceof the Articles, drawing a parallel
between them and the work of the ILC resultingin the Vienna Conventionon the Law
of Treaties 1969. If they were not adoptedas a convention, some States might not feel
obliged to comply with the conceptionof State responsibilityembodiedin the Articles,
and this would be to the detrimentof the stability and predictabilityof the law. But
further work was needed, particularlyon the question of dispute settlement, and
accordingly a text could not be opened for signatureimmediately. In Austria's view,
the question should come back to the General Assembly no later than at its 62nd
session (in 2007); however, the Assembly should resist any attemptto make substantive changes to the text, which would jeopardize the careful balance achieved in the
text.
Jordanwas in favour of the conclusion of a convention;however, it was flexible as
to the final state of the Articles, as in its view, they alreadyreflected customaryinternational law and constituted a restatementof internationallaw on the topic of State
responsibility,including on the controversialissue of countermeasures.
Francewas more ambivalenton the extent to which the Articles reflected customary internationallaw. Given thatthe Articles went beyond merely codifying customary
internationallaw, a convention was the only realistic outcome; the Articles would
constitutean excellent startingpoint for such work. It was however open to the possibility of a furtherdelay to allow State practiceto mature.
A numberof delegationsexpressedsupportfor a conventionwith particularemphasis on the addition of a dispute settlement mechanism, but did not press for this to
happenat once. Brazil expressed the view that the only appropriateway to reflect the
importanceof the Articles was by way of a convention. Similar positions were taken
by Venezuela and Uruguay.Spain emphasizedthe importanceof the topic: in its view
only a treaty would offer full legal security; it proposed that the General Assembly
should reconsiderthe topic at its 62nd session in 2007 with a view to deciding whether
to proceed to a diplomaticconference.
A sizeable group of delegations did not rule out the possibility of a convention in
the future, but believed that furthertime was necessary for the Articles to become
widely accepted. Thus Israel questioned the wisdom of adopting the Articles in a
convention at least at the present stage: meanwhile it was necessary to test 'their

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964

International and Comparative Law Quarterly

resilience through the crucible of internationaltheory and practice'. Switzerland

thoughtit prematureto move towardsan internationalconvention;more time should be
allowed for the law to develop on the basis of the Articles. China too thought that
conditions were not right for the convening of a diplomatic conference, but that the
topic should be includedannuallyor bienniallyin the agendaof the GeneralAssembly;
a working group should be set up to allow States 'to regularlyexchange views on all
relevantissues and on ways to solve those issues with a view to reachingan eventual
decision on actionto be takenwhen all conditionsare right'. Slovakia,while not rejecting the possibility of a convention, expressed the view that any immediate move to
convene an internationalconference would be premature,that more time was needed
for States to become familiar with the Articles and for them to decide on the best
approach to take. A period of three or four years was proposed. Similarly, the
Netherlandsexpressed doubts as to the usefulness of a convention, stressing the great
extent to which the Articles reflected customaryinternationallaw and the important
role they are playing in guiding State practicein those areaswhere they did not already
reflect customarylaw. In its view, the GeneralAssembly should returnto the question
no earlier than its 63rd session in 2008 in orderto allow States to gain wider experience of applyingthe Articles in practice.Mexico (althoughnot in principleopposed to
a convention) also took the position that it was too early to take a decision on the final
form of the Articles, and that the decision should be put off to a later session.
Japanexpressed no view as to the most appropriatefinal form of the Articles, and
merely arguedthatthe GeneralAssembly should returnto the questionin 4-5 years. It
emphasized the extent to which the Articles had already been cited by international
courts and tribunals.
Portugalemphasizedthe need for some action to be taken at the presentsession; as
opposed to the immediateconvening of a convention,it expressedthe view thatacceptable alternativesincludedthe settingup of an ad hoc committeeor requestingStatesfor
final commentson the subject,with a fixed deadline.
A draftresolutionwas introducedat the 25th meeting of the Sixth Committeeon 9
November 2004 by Trinidadand Tobago.9This was adoptedby the Sixth Committee
without a vote on 17 November 2004, to and was subsequentlyadoptedunchangedby
the GeneralAssembly as Resolution 59/35 on 2 December 2004.
Given the substantialnumberof States in favour of furtherpostponementof the
question (whetherfor a limited period, or permanently),no immediatedecision on the
question of convening a diplomatic conference for the purposes of concluding a
convention could be taken. Resolution 59/35, in additionto commendingthe Articles
once more to the attentionof States, again 'without prejudiceto the question of their
future adoptionor other appropriateaction',ll postponed furtherconsiderationof the
final form of the Articles in the GeneralAssembly until the 62nd session in 2007.12
At the same time the Secretary-Generalwas asked to seek writtencomments from
governments on any future action in relation to the Articles, to prepare 'an initial
compilationof decisions of internationalcourts, tribunalsand otherbodies referringto
see alsoUN Doc A/C.6/59/SR.25
for
9 Forthedraftresolution,see UN Doc A/C.6/59/L.22;
the introductionof the draft.
10 See UN Doc A/C.6/59/SR.26 and the report of the Sixth Committee to the General
Assembly on the topic: UN Doc A/59/505 (22 Nov 2004).
" Resolution 59/35 (n 1) ?1.
12 ibid ?4.

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UN Conventionon State Responsibility

965

the articles' and to invite governmentsto submit informationon their practicein relation to the Articles.13In introducingthe draft resolution in the Sixth Committee, the
representativeof Trinidad and Tobago, Ms Ramoutar,emphasized that it was not
intendedthat in so doing 'the Secretary-Generalshould make any attemptto interpret
the articles or any decision relating to them'.14The Resolution furtherrequestedthat
the materialthus collected be made availablewell in advanceof the Sixth Committee's
considerationof the topic in the autumnof 2007.
III. REFLECTIONSON THE DEBATE

As a matterof impressionthe numberof delegations supportingthe eventual elaboration of a conventionor at least preparedto keep thatoption open has increasedbetween
2001 and 2004, althoughit is difficult to be certaingiven thatnot all States which made
statementsin 2001 did so in 2004 (and vice versa). Whetheror not the numberof States
supportinga convention has increased,there now appearsto be only a small number
supportingthe reopeningof the compromisescontainedin the ILC's text or favouring
general revision of the Articles. Several States (eg Mexico, Guatemala)which might
have been interpretedas taking that position in 2001 appearto have shifted towards
supportfor the Articles as a whole.
An interestingaspect of the debate was the lack of a common position adoptedby
the Members of the European Union. Although all more or less supportive of the
Articles, they varied between being staunchly in favour of a convention (Spain,
France),opposed to a convention at least for the foreseeable future(United Kingdom,
Italy, the Nordic countries) or in favour of some intermediateposition (Germany,
Austria,the Netherlands,Slovakia). They were also divided on the extent to which the
Articles reflect existing customaryinternationallaw.
One may ask whethera preparatoryworkinggroup,for which a numberof delegates
called, would not tend to reopen the substanceof the Articles. Even though most such
calls were accompaniedby assurancesthatno fundamentalmodificationof the Articles
was envisaged, the consequence of resubmittingthe Articles to a generalized debate
may be the collapse of the delicate compromisesachieved duringthe second reading
process. It was no doubt because of such concerns that some delegations (eg Greece
and perhapsCyprus) proposed that the mandateof any working group be limited to
draftinga preamble,final sections, and possibly a dispute settlementmechanism.
On the otherhand,thereis a sizeable groupof States which, althoughsupportingor
remainingopen to the idea of an internationaldiplomaticconference,express the clear
view thatthe Articles as they standshould not be modified. For these States, as well as
for those which oppose any form of diplomaticconference,the Articles are for the most
parta reasonableworkingsummaryof the internationallaw of responsibility.Although
certain areas of controversy remain (in particular,third-partycountermeasures,the
regime of serious breaches and invocation by States other than the injured State), it
seems fair to infer that for this group of delegations the balance of the Articles as a
whole is acceptable.
Given the division of views between States, the request for a study by the
Secretariatof practiceandjudicial decisions relying on the Articles may serve several
13 ibid ??2 and 3.
14 See UN Doc: A/C.6/59/SR.25, ? 59.

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966

Internationaland ComparativeLaw Quarterly

purposes. On the one hand, for those States in favour of the conclusion of a convention, this may be seen as a concretesign thatsome action is being takento thatend. For
those States opposed to the conclusion of any instrument,the study may reveal the
extent to which the Articles arebeing relied upon in practiceby internationalcourtsand
tribunals,as well as by States themselves, and could provide supportfor the argument
that no furtheraction is necessary
The value of the Secretariatstudy will be limited to a degree in that there is to be
no questionof the Secretariatinterpretingthe Articles themselves or the decisions relying on them. It appearsthat the study will simply be a collection of decisions referring
to the Articles. Althoughthere are a large numberof cases which have made reference
to various provisions of the Articles, others may be interpretedas supportingsome of
the choices made by the ILC, particularlyin relationto the more controversialissues.
In any event it is clear that litigants are increasingly relying on the Articles and
commentaries,and that internationalcourts and tribunalsare treatingthem as a source
on questions of State responsibility.This had been the case with the Draft Articles as
adopted on first reading, which were referredto on a number of occasions by the
InternationalCourtof Justice15as well as other courts and tribunals.16Since 2001 the
numberof such referenceshas increased,extendingin a few cases to domestic courts.17
In its AdvisoryOpinionon TheWall,the International
Courtreferredto the Articlesin
the contextof its discussionof necessity.'8In addition,althoughwithoutspecificmention
of the Articles, the Courtapparentlydrew on the regime of potentialconsequencesfor
third States deriving from 'serious breaches' codified in Articles 40 and 41 (the
obligationof non-recognition,the prohibitionof aid and assistance,andthe obligationof

5 See, eg, Gab_ikovo-NagymarosProject (Hungary/Slovakia)[1997] ICJRep 7 at 38, 39-41,

46, 54, 55-6 (??47, 50-3, 58, 79, and 83); 'DifferenceRelating to Immunityfrom Legal Process
of a Special Rapporteurof the Commissionon HumanRights' [1999] ICJRep 62 at 87 (962); see
also, eg, the dissentingopinions of Judge Schwebel in Militaryand ParamilitaryActivities in and
against Nicaragua (Nicaragua v United States of America), 'Jurisdiction and Admissibility'

[1984]ICJRep392 at 607-8 (?74);and'Merits'[1986]ICJRep 14 at 377-8 (??232-3);andthe

in CertainPhosphateLandsin Nauru(Nauruv.
SeparateOpinionof JudgeShahabuddeen
Australia) 'PreliminaryObjections' [1992] ICJRep 240 at 283-4.
16 See, eg, the ArbitralTribunalin Rainbow Warrior(New Zealand/France),RIAA,vol XX,

217 (1990);the International

Tribunalfor the Lawof the Sea in TheM/V'Saiga'(No2)(Saint
Vincentand the Grenadines v Guinea), (1999) 38 InternationalLegal Materials 1323, at 1345,

1351-2 and 1357 (??98, 133, and 171) and the brief referenceof the Panel in European
Communities-Regimefor the Importation,Sale and Distributionof Bananas, Complaintby the

UnitedStates,WT/DS27/R/USA,
reportof 22 May 1997,n 361. See also the PanelReportin
Turkey-Restrictions on Imports of Textile and Clothing Products, report of 31 May 1999,

WT/DS34/R,??9.42-9.43.

17 See, eg, the discussion of Art 4 in the decision of the United States Courtof Appeals for the
Second Circuit,in CompagnieNoga D'Importationet D'Exportation,SA v Russian Federation,
361 F.3d 676 (2004) at 689.
18 'Legal Consequences of the Constructionof a Wall in the Occupied Palestine Territory'
[2004] ICJ Rep 136 at 194-5 (? 140); see also the 'Declaration of Judge Buergenthal' [2004] ICJ
Rep at 241 (?4), referringto the formulationof the rightof self-defence as a circumstanceprecluding wrongfulnessin Art 22 of the Articles. Judge Simma had alreadyreferredto the Articles in
his SeparateOpinionin Oil Platforms(United States ofAmerica v Iran) on the questionsof countermeasuresand pluralityof responsibleStates: [2004] ICJRep 161 at 332 (? 12, footnote 19), and
358-9 (??75-8). In relationto the latterpoint, Judge Simma referredto the Articles as constituting an 'authoritativesource' of the law (ibid at 358, (?75)).

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UN Conventionon State Responsibility

967

cooperation),19although maintainingits existing practice of referringto obligations

erga omnes ratherthan to peremptorynorms.20
The Articles and commentarieshave continuedto be widely cited by other international bodies, includingthe ArbitralPanels and the AppellateBody operatingunderthe
dispute settlementmechanismof the WTO,21the EuropeanCourtof HumanRights,22
ICSID and other tribunalsdealing with investmentdisputes,23and other international
19 Legal Consequences(n 18) at 199-200 (??154-60), in particularat 200 (?? 159 and 160).
cf the SeparateOpinion of Judge Kooijmans, dissenting on this point, discussing Art 41 of the
Articles: ibid at 230-2 (8?37-45).
20 The Courtemphasizedthe erga omnes natureof the right to self-determinationand certain
rules of humanitarianlaw (ibid at 199-200 (??156-8)); it then observed that '[g]iven the character and the importanceof the rightsand obligationsinvolved', certainconsequenceswere involved
for other States (ibid, at 200 (?159). Although the most naturalreadingof the Court'sjudgment
is that it is the erga omnes natureof the rightsand obligationswhich producethese consequences,
given that the rights in question also undoubtedlyform part of jus cogens, it is possible that the
Courtwas referring(in an extremely elliptical manner)to the peremptorycharacterof the norms.
For criticismof the Court's approachon this point, and in particularlyits apparentreliance on the
erga omnes characterof the normsin question, see the SeparateOpinionof Judge Higgins, ibid at
216-17 (??37-9).
21 See, eg, the decisions of the Appellate Body in United States-Transitional Safeguard
Measureon CombedCottonYarnfrom Pakistan,reportof 8 Oct 2001, WT/DS192/AB/R, ?120 and
UnitedStates-Definitive SafeguardMeasureson Importsof CircularWeldedCarbonQualityLine
of counPipe From Korea,reportof 15 Feb 2002, WT/DS202/AB/R,?259 (Art51 (proportionality
termeasures));the decision of the arbitratorin UnitedStates--Tax TreatmentFor 'Foreign Sales
Corporations',WT/DS108/ARB, decision of 30 Aug 2002, ?5.26 (Art 51, proportionality)and
?5.58-5.60 (Art 49(1); object and purpose of countermeasures);and the Report of the Panel in
Measures Affecting The Cross-BorderSupply Of GamblingAnd Betting Services, WT/DS285/R,
reportof 10 Nov 2004, ??6.128-6.129 (Art 4; attributionof organsof the State;7-9.130). See also
recentlyEuropeanCommunities-MeasuresAffectingTradeIn CommercialVessels, reportof 22
Apr2005, WT/DS301/R,wherethe Articleswere reliedon heavily in argumentby parties.
22 See, eg, Ila_cu and Othersv Moldova and Russia (Meritsand Just Satisfaction)Application
No 48787/99, judgment of the Grand Chamber of 8 July 2004, ? 319 (ultra vires acts) and
8?320-1 (continuingwrongful acts) (available at <http://www.echr.coe.int>).
23 See, eg, the awardof the tribunalin MondevInternationalLtd v UnitedStates of America,
ICSIDCaseNo. ARB(AF)/99/2,awardof 11 Oct 2002, ICSIDReports,vol 6, 192, at 208,222 (??68,
115); the decision on annulmentof the ad hoc committeein Compariidde Aguas del AconquijaSA
and VivendiUniversalv ArgentineRepublic,ICSID Case No ARB/97/3, decision of 3 July 2002,
ICSIDReports,vol 6, 340 at 346, 366 (8? 16 (footnote17), 95, 97); andthe awardsof the tribunalsin
ADF GroupInc v UnitedStates ofAmerica, ICSIDCase No ARB(AF)/00/1,Awardof 9 Jan 2003,
ICSIDReports,vol 6, 470, at 522, 533 (??166, 190);TheLoewenGroupInc. andRaymondL Loewen
v UnitedStatesofAmerica,ICSIDCase No ARB(AF)/98/3,Awardof 26 June2003, ICSIDReports,
vol 7, 442, at 470-1 (?149); CMSGas TransmissionCompanyv RepublicofArgentina,ICSIDCase
No ARB/01/8, Decision on Objectionsto Jurisdictionof 17 July 2003, ICSIDReports,vol 7, 492 at
517 (?108); SGS Socidt6Gendralede SurveillanceSA v Republicof the Philippines,ICSIDCase No
ARB/02/6, Decision on Objectionsto Jurisdictionof 29 Jan2004, ICSIDReports,vol 8, 518 at 552
(?122); TokiosTokelesv Ukraine,ICSID Case No. ARB/02/18, Decision on Jurisdictionof 29 Apr
2004, 8102 (availableat <http://www.investmentclaims.com/decisions/Tokios-Ukraine-Jurisdiction29Apr2004.pdf>)Impregilo SpA v Islamic Republic of Pakistan (ICSIDCase No ARB/03/3)
Decision on Jurisdictionof 22 Apr 2005, ??312-313 (availableat <http:i//www.investmentclaims.
EurekoBV v Republicof Poland,
com/decisionslImpregilo-Pakistan-Jurisdiction-22Apr2005.pdf>;
PartialAward of 19 Aug 2005, ??128, 130-132, 187-188 (availableat <http://www.investmentand the Award of 12 May 2005 in the
caims.com/decisions/Eureko-Poland-LiabilityAward.pdf>);
CMS v Argentinacase (availableat <http://www.investmentclaims.com/decisions/CMS-ArgentinaFinalAward-12May2005.pdf>),referringextensivelyto Arts 25 and 27 in relationto necessity as a
circumstanceprecludingwrongfulness,andArts 34-6 of the Articlesin relationto reparation.

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968

Internationaland ComparativeLaw Quarterly

tribunals.24Further,it may be that certain aspects of the HumanRights Committee's

General Comment No 31, adopted on 29 March 2004 were draftedwith the Articles
and Commentariesin mind.25
Thus there is an ongoing process of consolidationof the internationalrules of State
responsibility as reflected in the Articles. In many cases (eg attribution,continuing
wrongful acts, the componentsof reparation)the Articles have been generallytakento
reflect customaryinternationallaw. But references, direct or indirect,have also been
made to other more controversialprovisions, includingArticles 40, 46, and 51.
One groundgiven by a numberof delegationsfavouringa conventionincorporating
the Articles concerned the need for a dispute-resolutionmechanism. But there is a
dilemma here. It is of course fundamentalto the strategyunderlyingthe Articles that
they do not seek to articulatethe so-called primaryor substantiveobligationsof States,
but form a frameworkfor the applicationof these obligations, whateverthey may be.
This point is made in the very first paragraphof the commentaries:
The emphasisis on the secondaryrulesof Stateresponsibility:
thatis to say,the general
conditionsunderinternational
law forthe Stateto be considered
for wrongful
responsible
actionsoromissions,andthelegalconsequences
whichflowtherefrom.
Thearticlesdonot
attemptto definethecontentof theinternational
obligationsbreachof whichgivesriseto
Thisis thefunctionof theprimary
wouldinvolve
rules,whosecodification
responsibility.
international
andconventional.26
law,customary
restatingmostof substantive
This being so, a dispute over some issue of responsibilitywill rarely be limited to a
question concerning the Articles as such; it will extend to the substantiveobligation
breachof which is said to give rise to responsibility.It is truethat in the LaGrandcase,
the United States accepted that there had been a breach of Article 36 of the Vienna
Conventionon ConsularRelations,27and the questions for the Courtratherconcerned
the remedialconsequencesof thatbreach(as well as the questionof liability for breach
of the provisionalmeasuresearlierindicatedby the Court).But even then, it was still
necessary for the Courtto interpretand apply the Convention (which, in conjunction
with the OptionalProtocol,was the sourceof its jurisdictionover the dispute).28As the
24 See, eg, PermanentCourt of Arbitration;Dispute concerning Access to Informationunder
Article 9 of the OSPARConvention(Ireland v UnitedKingdom)Final Award,2 July 2003 (2003)

42 International
LegalMaterials1118,at 1144(?145).

25 Human Rights Committee, General CommentNo 31, General Commenton Art 2; The
Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc

29 Mar2004. See,eg, ?2:'Whilearticle2 is couchedin termsof the

CCPRIC/21/Rev.1/Add.13,
underthe Covenant,every
obligationsof StatePartiestowardsindividualsas the right-holders
StatePartyhas a legalinterestin the performance
by everyotherStatePartyof its obligations.
commends
to StatesPartiestheviewthatviolationsof Covenant
[...] theCommittee
rightsby any
StatePartydeservetheirattention.
To drawattention
to possiblebreachesof Covenantobligations
by otherStatesPartiesandto callon themto complywiththeirCovenantobligationsshould,far
frombeingregarded
as anunfriendly
act,be consideredas a reflectionof legitimatecommunity
interest.'
26 See, eg, Reportof the ILC on the Workof its 53rd Session (n 1) at 59; CrawfordThe ILC's
Articles (n 1) at 74.
27 LaGrand(Germanyv United States of America), ICJ Reports 2001, 466, at 481 (?39); the

waslimitedto theinjuryto Germany

as such,anddidnotextendto theclaimsof violaacceptance
tionof the individualrightsof theLaGrand
brothers,in relationto whicha jurisdictional
objectionwastaken.
to thequestionof whethertheConvention
28 ibidat480-3 (??37-42),in relation
grantedrights
to individuals.

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UN Conventionon State Responsibility

969

PermanentCourt stressed in the ChorzdwFactory case, jurisdictionin respect of an

internationallywrongful act extends to consequential issues of State responsibility,
including the form and extent of reparation.29But the question must be asked whether
the converse is not also true, that is, whetherjurisdictionover a dispute concerningthe
interpretation or application of the Articles on Responsibility of States for
InternationallyWrongful Acts (assuming some version of those Articles were to be
turned into a convention) would not entail jurisdiction over the primaryobligation
breachof which is said to give rise to responsibility.
Evidently the answer will depend on the terms of any dispute settlementclause to
be includedin the Convention.But thereis a dilemmahere for States. Eitherthe clause
is formulatedin broadterms or an attemptis made to limit its focus to specific issues
arising under the Conventionon State Responsibility as such. In the former case, the
jurisdictionwill extend to any claim that the respondentState has violated an international obligation and that the applicant State is entitled to invoke its responsibility
therefor. Such a jurisdiction is virtually coextensive with that referredto in Article
36(2) of the Statuteof the InternationalCourt.30Of course not all internationaldisputes
concernresponsibility-land or maritimeboundarydisputes,for example, need not do
so. But even in the case of a boundarydispute it is common for there to be ancillary
claims of violation of the boundary--as for example in the Aegean Sea31 and
Cameroon/Nigeria32cases. The same is true as concerns disputes over the extent of a
State's jurisdictionto prescribeor enforce--The Lotus, for example,33or the various
29 Factory at Chorzdw,Jurisdiction, 1927, PCIJ, Series A, No 9, at 21: 'It is a principle of
internationallaw that breach of an engagementinvolves an obligation to make reparationin an

thereforeis the indispensable

adequateform. Reparation
complementof a failureto applya
convention and there is no necessity thatthis be statedin the conventionitself. Differences relating to reparations,which may be due by reason of failureto apply a convention, are consequently
differencesrelatingto its application.'
30 See Crawford,Peel, and Olleson 'The ILC's Articles ...' (n 3) at pp. 967-968. For more
detailed discussion in relation to the dispute resolution provisions included in the draft Articles

adoptedin 1996on firstreading,see ibidat pp966-969.

31 Aegean Sea ContinentalShelf, ICJ Reports 1978, 3; see in particularthe request made in

Greece'sApplication
(quotedat 6-7 (? 12))thatthe Courtdeclarethat'(v) thatthe activitiesof

Turkey [...] constitute infringementsof the sovereign and exclusive rights of Greece to explore
and exploit its continentalshelf or to authorizescientific researchrespectingthe continentalshelf'.
32 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria;

[2002]ICJRep303;theCourtdisposedof theclaimsandcounter
EquitorialGuineaintervening)
claims of violations of the border somewhat summarily.It dismissed Cameroon's claim for a
declarationthat Nigeria was obliged to withdrawtroops from the Bakassi peninsulaand the area
near Lake Chad awardedto Cameroon,and for guaranteesof non-repetitionin thatregardon the
basis that having delimited the boundaryit could not 'envisage a situation where either Party
[...]would fail to respect the territorialsovereignty' of the other Party (ibid at 452 (?318)); the
Court continued that moreover 'In the circumstancesof the case [...] by the very fact of the
present Judgmentand of the evacuation of the Cameroonianterritoryoccupied by Nigeria, the
injury suffered by Cameroonby reason of the occupation of its territorywill in all events have
been sufficiently addressed.The Court will not thereforeseek to ascertainwhether and to what
extent Nigeria's responsibilityto Cameroonhas been engaged as a resultof thatoccupation'(ibid,
at 452 (?319)). The Court furtherheld that Cameroonhad failed to prove its allegations as to
breachby Nigeria of the ProvisionalMeasures(ibid, at 453 (?322)), and furtherheld that neither
partyhad establishedthe facts supportingtheirclaims in relationto borderincidentsor had proved
that those acts were imputableto the other party(ibid, at 453 (?324)).
33 The 'Lotus', 1927 PCIJ Series A No 10; it was expressly contemplatedin the compromis
submitting the case to the PermanentCourt that if the Turkish exercise of jurisdiction over

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970

International and Comparative Law Quarterly

Fisheries Jurisdiction34or Arrest Warrant35cases. Virtually any dispute concerning

the rights and obligationsof States can be presentedas one concerningState responsibility, even if a merely declaratoryremedy is sought. And if there is any doubt about
the matterit can always be resolved in favourof jurisdictionby one State takingaction
to enforce its contestedrights,for example, by infringingthe contestedboundary,exercising the contestedjurisdictionor taking countermeasuresin response to the conduct
of the other State. No doubt the dispute will be aggravatedthereby-but it will incontestably become a dispute concerning State responsibility, whatever the underlying
cause may be.
Thus either the dispute settlementclause will confer a very broadjurisdictionover
claims of breaches of internationalobligations, or it will be artificially confined to
secondary questions with the consequence that the court or tribunalwill be disabled
from completely addressingthe dispute.To be useful in practice,dispute settlementin
State responsibilitycases needs to be broad-yet it is very doubtfulwhetherStates are
ready to accept such a broad jurisdiction, unlimited as to the subject matter of the
primaryobligation.
It is truethatmany Stateshave acceptedcompulsoryjurisdictionin relationto given
classes of dispute, for example underthe Law of the Sea Conventionand the covered
agreementsof the World TradeOrganization.But it is one thing to acceptjurisdiction
over a specified class of primaryobligations in some given field and anotherthing to
accept a generaljurisdictionundertreatiesand customaryinternationallaw. The latter
would amount to a furtherversion of jurisdictionunder Article 36(2) of the Statute,
acceptableperhapsto States which alreadyaccept the OptionalClause (but why should
they do so twice?), unlikely to be acceptableto those which do not. And this analysis
leaves to one side questions of the relationshipbetween existing jurisdictions which
Courtshould
Lieutenant
Demonswas foundto be contraryto international
law, the Permanent
waspayablein thosecircumthengo on to considerthequestionof whetherpecuniary
reparation
stances,andif so, in whatamount(ibidat 5).
34 Fisheries Jurisdiction(Spain v Canada), Jurisdictionof the Court [1998] ICJRep 432; see

the declaration
in particular
soughtin the SpanishApplication(quotedibid at 437 (?10)) that
outsideitsexclusiveeconomiczone,
Canadawasboundto refrainfromtheexerciseof jurisdiction
in theformof 'anindemnitytheamountof whichmustcover
andwasboundto offerreparation
all injuriesanddamagesoccasioned',andthatthe boardingof theEstaibreachedinternational
law. See also Fisheries Jurisdiction (Federal Republic of Germany v United Kindom),Merits
[1974] ICJRep 3; Fisheries Jurisdiction(Federal Republicof Germanyv Iceland), Merits [1974]

ontheMeritshadrequested
ICJRep175;theUKin its Memorial
(quotedibidat7 (?11)),a declawithfishingvesselwereunlawfulandthat'Icelandis
rationthatIceland'sactivitiesin interfering
thereforto theUnitedKingdom(theformandamount
underanobligationto makecompensation
betweentheParties,in suchmannerasthe
to be assessed,failingagreement
of suchcompensation
thatIceland'sacts
Courtmayindicate)';similarly,Germanyhadrequesteda similardeclaration
thereforto the
wereunlawful,and 'thatIcelandis underan obligationto makecompensation
FederalRepublicof Germany'(ibidat 179(?12)).TheUK settledthatpartof its claimpriorto
withdrewit (ibidat 7 (?12)),whiletheCourtrefusedto
thehearingon themeritsandaccordingly
accedeto Germany'sclaimon the basisthattherewas no concreteclaimfor damagesuffered
theCourtto assessthequantum
by detailedevidence,andGermanyhadnotrequested
supported
in a separatephaseof theproceedings
(ibidat 204-5 (?76)).
35 Arrest Warrantof 11 April 2000 (DemocraticRepublicof the Congo v Belgium) [2002] ICJ

(quotedibidat 8-9 (?12))

Rep3. Notetherequestin theDRC'sMemorialandoralsubmissions
of thatactconstitutes
an
fora declaration
that'a formalfindingby theCourtof theunlawfulness
for the consequentmoralinjuryto the
formof satisfaction,providingreparation
appropriate
DRC'.

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UN Conventionon State Responsibility

971

encompass issues of responsibility- whether for breaches of human rights or investment protectionor world tradeor law of the sea obligations--and the regime of dispute
settlementundera general convention on state responsibility.
On balance, the better course of action remains that adopted by the General
Assembly in 2001 and again in 2004 in putting off any decision on the final form of
the Articles until a later date.36At present the Articles are performinga constructive
role in articulatingthe secondaryrules of responsibility.It may seem paradoxicalthat
this role can only be preservedby keeping the possibility of a convention open while
perpetuallypostponing a decision on the conclusion of such a convention. But given
the alternativesand the dangerof the Sixth Committee'sreplicatingthe ILC's 40 years
of work on the subject,perhapsto lesser effect, this seems to be the only way forward.
In the meantime,it may be expected thatthe position of the Articles as partof the fabric
of generalinternationallaw will be furtherconsolidatedandrefinedthroughtheirapplication by internationalcourts and tribunals.
JAMES CRAWFORD* AND SIMON OLLESON**

36 cf the view of ShabtaiRosenne 'State Responsibility-Festina Lente' (2004) 75 British

Law 363, at 371 'Resolution56/83 gives the draftarticleson the

Yearbookof International
of Statesfor internationally
responsibility
wrongfulactsa firmerstandingthantheywouldhave
hadhadtheynotbeenso annexed,andthisstandingis increased
59/35.TheGeneral
by Resolution
Statesattempting
to
Assemblyin factis invitinglawapplyingorgans,andthatincludesindividual
resolvea disputein whichissuesof Stateresponsibility
arerelevant,to lookto thedraftarticles
of thelaw on thematter.Timewill tell howeffectivethisnew methodof codifyas a statement
ing a difficultbranchof thelaw will be.'
* LLD (Cantab),SC, FBA; Whewell Professorof InternationalLaw, Universityof
formermemberof the International
Law Commissionand SpecialRapporteur
on
Cambridge;
StateResponsibility
(1997-2001).
** MA(Cantab),
LLM(NYU),DipIntLaw(Cantab);
13OldSquare,Lincoln'sInn,
Barrister,
London.

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