The ILC Articles on State Responsibility: Between Self-Help and Solidarity
38 NYU Journal of International Law & Politics 355 (2006)
18 Pages Posted: 29 May 2012
Date Written: 2006
International law is frequently distinguished by its lack of enforceability. To remedy this weakness, when proposing that the International Law Commission (ILC) undertake the project of State responsibility a half a century ago, Sir Hersch Lauterpacht viewed the treatment of breaches as a kind of ersatz criminal law. State responsibility, therein, was to solidify international law with an element of law-ness that was notably lacking during the inter-war period. This general approach was systematized by Special Rapporteur Roberto Ago in his 1969 ILC Report. There, he distinguishes between primary and secondary norms, i.e., between the obligations themselves and the consequences of breaching any such primary obligation. State responsibility falls into the latter category. As such, this dichotomy emphasizes that the State responsibility project is the international law equivalent of domestic sanctions (later called countermeasures). In 1998, by the time the ILC appointed James Crawford as the final Special Rapporteur of the project, the principle function of the ILC’s Articles on the Responsibility of States for Interna-tionally Wrongful Acts was to provide for the enforcement of international obligations. The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (“ILC Articles”) is the product of over five decades of ILC work and the ILC’s most ambitious venture since the Vienna Convention on the Law of Treaties of 1969. The State responsibility project sought to ensure the bindingness of international law — in other words, to provide for its enforcement without an international policing force. To this end, the book is a work of international law professionalism at its finest and is among the greatest single contributions to the field in the history of State responsibility. That said, the ILC’s omission of a democracy discourse in its final draft of the Articles seems odd. Contemporary international practitioners regularly invoke issues such as governance and legitimacy — issues that are likely to have effects on the validity and scope of countermeasures in practice. Yet, the final draft of the ILC Articles is silent on this matter. Below, I will assess the wisdom (and feasibility) of such a discourse.
Keywords: State Responsibility, International Law, Democracy
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