The ILC's work on State responsibility, 1996-2001

Before 1996

The topic of State responsibility has been on the agenda of the International Law Commission since 1949. At that time, the Commission confined the scope of the topic to the study of international responsibility of States for internationally wrongful acts, proposing a separate later study on the international responsibility of international organizations. In addition, the Commission concentrated its study on the determination of the principles which govern responsibility, the so-called "secondary rules", rather than the substantive rules which define international obligations in particular contexts.

After 1996

Forty-seven years later at its 48th Session in 1996 the Commission adopted, on first reading, an entire set of Draft Articles dealing with a range of legal issues, including the elements constituting an internationally wrongful act, the definition of an internationally wrongful act as an international crime or delict, the consequences resulting from such an act, and the defences or excuses that could preclude wrongfulness, such as distress, necessity and self-defence. The 1996 Draft Articles also defined the rights of a State that is injured, dealt with rights to reparation (by way of restitution, compensation or satisfaction), and provided for the possibility of resort to countermeasures.

The Commission then transmitted the Draft Articles to Governments for comments and observations. At the same session, Mr Gaetano Arangio-Ruiz announced his resignation as Special Rapporteur. At the 49th Session (1997), the Commission appointed a new Special Rapporteur, Professor James Crawford, and decided to give appropriate priority to the topic in its future work, so as to complete its second reading of the Draft Articles by the end of the next quinquennium (i.e. in 2001).

In 1998 Professor Crawford introduced his First Report to the Commission. This dealt with the notion of State crime and reviewed Chapters I (General Principles) and II ( the "Act of the State" under International Law) of Part One of the Draft Articles. The Second Report in 1999 dealt with Chapters III (Breach of an International Obligation), IV (Implication of a State in the Internationally Wrongful Act of Another State) and V (Circumstances Precluding Wrongfulness).

A provisional second reading of the Draft Articles was undertaken by the ILC Drafting Committee between 1998 and 2000. It consisted of a thorough review of the provisions adopted in 1996 on the basis of developments in State practice, jurisprudence and the comments by Governments made either to the Commission or in the Sixth Committee of the General Assembly.

At the end of this complete review, Part One retained its essential structure despite important modifications to the drafting of some of its provisions. By contrast, Part Two, formerly entitled "Content, Forms and Degrees of International Responsibility", underwent a substantial reshaping on second reading, along lines proposed in the Third Report (2000). It was divided into several distinct parts. The new Part Two dealt with the content of State responsibility and was redrafted in terms of the obligations of the State responsible for an internationally wrongful act (specifically, cessation and reparation in its various forms). It also provided for certain specific consequences entailed by serious breaches of obligations to the international community as a whole. A new Part Two bis was created to cover the implementation (mise en œuvre) of responsibility. It drew a distinction between injured States and other States interested in the performance of the obligation breached, which has important consequences as far as invocation of responsibility and resort to countermeasures are concerned.

On the basis of the Special Rapporteur's two Reports, the ILC's Drafting Committee provisionally adopted a complete text of the Draft Articles for the purposes of discussion in August 2000. Following consideration of further comments and suggestions made by Governments and others, the Draft Articles and Commentaries were adopted by the ILC in August 2001.

The Articles were transmitted to the Sixth Committee of the General Assembly. They were considered by the Sixth Committee of the General Assembly in October/November 2001. By Resolution 56/83 of 12 December 2001, the General Assembly took note of the Articles and recommended them to the attention of Governments, annexing the text of the Articles to the Resolution. The General Assembly also resolved to include on its Agenda for its 59th Session in 2004-2005 an item entitled "Responsibility of States for Internationally Wrongful Acts".