Still Going Strong: Twenty Years of the Articles on State Responsibility’s ‘Paradoxical’ Relationship between Form and Authority

The year after the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) were completed, David Caron wrote an insightful piece decrying the ‘paradoxical relationship’ between form and authority that he thought the Articles embody. He believed that the Articles were destined to become influential even though they are not formally binding and contain provisions involving a measure of progressive development of the law, and described that ‘influence amid controversy’ as a paradox. Caron’s prediction has come to pass: in the past two decades, not only have the Articles been extensively cited by international courts and tribunals, they have also had – potentially controversial provisions included – a profound influence on how we learn, teach and think about state responsibility.

The ARSIWA are no doubt one of the crowning achievements of the International Law Commission (ILC). Marvelling at their success, one runs the risk of overlooking the four decades of false starts, reboots and disagreement that preceded their completion. One also risks neglecting the rather unfavourable circumstances through which the codification movement had to navigate at the turn of the century. The appetite for concluding and ratifying codification conventions, which had peaked in the 1960s, was in steep decline. That led the ILC to change gear in the late 1990s. As Patricia Galvão Teles describes in her post , the Commission stopped recommending that draft articles be sent to a conference of states for adoption as a treaty, at least in the first instance. What could at first glance be perceived as capitulation, a recognition of the Commission’s diminishing role, proved instead to be a savvy move. By overstepping the traditional process, the ILC killed two birds with one stone: it managed to avoid the risk of failed codification conventions while furthering its own authority as an expert body. It championed a new blueprint of ‘soft codification’, or ‘codification light’, to meet the challenges of a more pluralistic and fragmented globe.

While solving some problems, this shift in emphasis creates others. As I had the chance to discuss elsewhere, the fact that codification instruments such as the ARSIWA have become shortcuts for the identification of international custom gives rise to a rule of law dilemma. Unlike in domestic systems, where codifications acquire content-independent authority when enacted by a legislature, the authority of international law codifications is typically content-dependent. Codification conventions often fail to attract widespread (let alone universal) participation and are thus most successful when viewed as reflecting customary international law. And because ‘soft codifications’ such as the ARSIWA are never formally binding, any legitimate authority that they can claim is contingent upon whether they restate (or are perceived to restate) existing custom. But as the history of any codification project shows, behind every rule drafted on the basis of state practice, judicial precedent and academic commentary lie varying degrees of uncertainty and disagreement. To produce instruments that are sufficiently neat, prescriptive and comprehensive to be useful, the codifying agency has to make choices about how lingering disagreement is to be resolved. Even when those choices are justifiable or persuasive, they are never conclusive. The upshot is that the international lawyer is placed in a precarious position, where reasons to defer to conclusions reached by the codifying agency must be balanced against the intellectual duty to satisfy oneself that the codifying agency has actually done a good job. That can be particularly challenging in areas where the codifying agency purports to follow existing precedent but states themselves continue to disagree (as has been the case with the law of countermeasures). In the end, international codifications cannot dispel all the uncertainty that inheres in the process of formation of international custom.

Caron was worried that the international legal profession, and in particular arbitrators without a solid background in public international law, would end up giving too much authority to the ARSIWA, failing to abide by the intellectual imperative to critique the ILC whenever appropriate. And the picture that emerges from the practice of the past twenty years is indeed one in which deference has prevailed over contestation. A striking example is provided by the International Court of Justice’s reliance on draft article 33 (now Article 25) on the defence of necessity in the Gabčíkovo-Nagymaros Project case. But do we have to regard this as a bad outcome? In other words, if some of the rules that the Commission articulated against a backdrop of disagreement are now more widely accepted, is that to be viewed as a regrettable development? My tentative answer is in the negative, for two main reasons.

First, the ARSIWA’s long gestating period seem to have resulted in a set of provisions and commentaries that make a genuine and competent attempt either to restate existing law or to provide a grounded rationalisation of existing practice and principle. While the mandate of the ILC comprises not only the task of codifying the law but also that of contributing to its progressive development, non-binding instruments such as the ARSIWA can only make a significant contribution to practice if they comprise a claim to codify the law. The ILC has traditionally (and strategically) kept an ambivalent position as to the legal status of the rules it articulates, but it is clear, in the case of the Articles, that the aspiration was to produce a set of provisions that could be plausibly invoked as lex lata. It was in that spirit that the Commission eliminated from the project, on second reading, the concept of ‘crimes of state’ that had proved polarising from the outset. The appearance of moderation that the Commission conveyed by getting rid of that controversial notion has perhaps made it easier for it to ‘sell’ the more progressive elements in the ARSIWA – for example, Article 41, on consequences arising for all states from serious breaches of jus cogens, and Article 48, on standing to invoke responsibility for breaches of obligations erga omnes and erga omnes partes. It was as if the Commission was assuring stakeholders that instead of suggesting big leaps forward it was simply joining the dots between the law of state responsibility and the proposition that certain international obligations are established in the collective interest. It is telling, in this connection, that the Commission made a point to concede, employing very careful language, that a couple of ancillary aspects of Articles 41 and 48 might amount to progressive development (namely, the obligation to co-operate in the suppression of serious jus cogens breaches and the right to ask for reparation for the beneficiaries of obligations owed to the international community as a whole).

Secondly, the participants in the decentralised international legal system have an interest in processes that allow for certain disagreements to be solved over time, wherever the chips may fall. That may be particularly true in the case of ‘secondary rules’ that, for all their systemic importance, do not concern the types of conduct of which states are most jealous. The advantage of ‘soft codification’ is that states get to delegate the hard work of research and analysis to an expert body, which they can steer while reserving a degree of plausible deniability. On the one hand, successful codifications such as the ARSIWA benefit states by making legal regimes more coherent, determinate and user-friendly. On the other hand, states retain the option of challenging individual provisions by retracing the Commission’s steps and finding fault with them. Of course, doing so may become increasingly difficult, especially when the provision is later applied and endorsed in the case law. But that doctrinal path remains open, as exemplified by Serbia’s critique of Article 10(2), on attribution of conduct in a situation of state succession, in the Croatia v. Serbia case. Often, by choosing not to take that path, states quietly allow codified provisions to consolidate.

The solid case that the ARSIWA makes to restate the law and the interest of states in having a robust systematisation of the rules of state responsibility may be part of the explanation for the Articles’ successful run in the past twenty years. One may even question whether the relationship between form and authority in them is that ‘paradoxical’ after all. But if that relationship accounts for the strength of the Articles, it also points to their inherent vulnerability. For one, some states seem to be growing warier of ‘soft codifications’ produced by the ILC. The Commission is under greater pressure to be more transparent in commenting on the legal status of individual provisions, and it has been even suggested that comments made by states ought to be published together with (and as a counterweight to) the Commission’s outputs. In addition, the ARSIWA themselves are being targeted by an increasingly large and vocal group of states advocating for a diplomatic conference to adopt a convention on state responsibility, which would allow for a re-examination of the ILC rules.

At a time of political volatility, it is hard to predict how the ARSIWA will fare in the next twenty years and beyond. The adoption of a convention on state responsibility might side-line the Articles, but it could equally cement their legacy while allowing them to enjoy a dimmed (but still relevant) existence as an interpretative aid, much like the 1966 draft articles that provided the negotiating text for the 1969 Vienna Convention on the Law of the Treaties. If the convention were to depart substantially from the Articles, the latter’s fate would depend on the former’s success: a widely ratified convention would undermine the Articles while a divisive convention might create an incentive to continue referring to them as a starting point for the identification of custom. But though it is impossible to know what the future holds, there are few observers who believe that the basic structure and content of the ARSIWA are at serious risk. Even states pushing for a diplomatic conference praise the Articles and recognise that the ILC has struck a balance that deserves to be preserved. The authority that the Articles have been enjoying is not only real: it also feels earned.