The ILC’s work on State responsibility: personal reflections

In 1995, the English version of the Commentary on the UN Charter I had organized and edited at the initiative and with the support of the German Foreign Office was presented to the UN in New York. Shortly thereafter, I got a phone call from an official of the UN Department at the Foreign Office who, after expressing the thanks of his Office for my  involvement with the project, continued by remarking  “I think we owe you something”. Jokingly, I replied that Carl-August Fleischhauer, the German Judge at the ICJ at the time, had recently been elected for a second term, so that job was not available. But what then turned out in the further, more serious, course of our conversation was that the International Law Commission was a possibility: Christian Tomuschat, after having served ten years on the Commission, had signalled that he did not want to run for a third term and was I interested in the job? I did not hesitate for a moment and two years later I was preparing for my first summer with the Commission in Geneva.

At that time, I was a member of the UN Committee on Economic, Social and Cultural Rights established in the mid-1980s as a means for the International Covenant devoted to these rights to catch up with other modern UN human rights treaties as concerned monitoring States parties’ performance. Coping with the challenge of devising a meaningful, transdisciplinary tool box for that purpose, with international lawyers being a small minority in the Committee, I soon came to see my task as that of defending the legal core of economic and social rights, of being a much-needed lawyer among 18 “droits-de-l’hommistes” representing a colourful, but not always transparent variety of backgrounds and expertise. I must confess that  during my in years in the Committee I spent one or the other hour on little escapes to Salle 22 in the Geneva Palais des Nations, where the ILC was meeting and where I felt professionally more at home than in the slippery world of “my” human rights.

Then, from 1997 to 2002, Salle 22 became my own workplace for the summer. And while before, in the UN’s human rights community, I had regarded it as my task to function like the Committee’s “in-house”(generalist international) lawyer, now in the ILC, of which at the time I was the only member with a UN human rights “past”, I soon discovered that I now felt the other way round, namely having to protect “my” human rights against attempts by certain fellow ILC members, as this endangered species’ potential false friends, to turn these rights into “bureaucratic small-change”, to use Philip Allott’s words (Eunomia.New Order for a New World, p. 288 [1991]). Thus, during my time in the ILC, reflexes acquired in ten years in the UN human rights world kept me constantly on guard and sensitive vis-à-vis the appropriation of  human rights by the international law “mainstream”.

The 1997 session of the Commission was a great time to start for a “droits-de-l’hommiste”. Not yet in the context of State responsibility, in regard to which the most important step was the appointment of James Crawford as Special Rapporteur for the topic, but for a grand, and sometimes quite heated, debate on the positioning of human rights treaties in the Vienna Convention’s law on reservations.  State responsibility in substance re-entered the stage in 1998 and from then on occupied pride of place in the ILC’s attention until 2001, when the Commission delivered its final product to the General Assembly. “Re-entered” the stage, because this last great, but also most controversial, chapter of the body of general international law had already been on the ILC’s agenda for decades, cultivated by no less than four Special Rapporteurs. The first reading of a set of draft articles had been concluded in 1996; on the one hand giving provisional blessing to veritable paradigm changes in the field (like the distinction between “primary” and “secondary” rules and the development of State responsibility from a system of contract – tort thinking to a system with more objective, public-law features by placing traditional elements like fault and damage into the realm of the first of these categories – developments decisive for  a sufficient coverage of international human rights law), but on the other hand also leaving in place some juridical time bombs, above all the concept of “international crimes of states”. It was now the task of the Commission to bring the topic to fruition and the new Special Rapporteur made clear from the outset that the second reading had to be completed within four years. I am still full of admiration for the intellectual courage and resolve by which James led the Commission to reach this goal.

As to human rights, I dare say that the spirit of making the new draft a place for the systematic integration of these  rights was present – mostly implicit, sometimes outspoken – at all the major steps the Commission now took towards the modernization of State responsibility (for a fuller description see the contribution to this Symposium by Helen Duffy). I myself published an article on “Human Rights and State Responsibility” in A. Reinisch and U. Kriebaum (eds.),The Law of International Relations. Liber Amicorum Hanspeter Neuhold, Utrecht, 2007, pp. 359 – 381).

Work on the topic in 1998 was primarily devoted to the elimination of the  famous/infamous concept of “international crimes of states” (draft article 19), which had almost monopolized, and politicized, the discussion on the responsibility project since the 1970s.  The way the Special Rapporteur drove this incubus out of the draft was undeniably  robust,  but he managed to combine this with the conservation of “ce qui reste des crimes”, as Alain Pellet  called it, in a mini-chapter on “serious breaches of obligations under peremptory norms of general international law” (Articles 40 and 41).

I dare say that the deletion of the “crimes” concept from the revised draft had no adverse effect whatsoever on the applicability of the final Articles to human rights violations.

Moving on,  I remember the 1999 session of the ILC for  my (successful) resistance against the one and only proposal by the Special Rapporteur with which I could not agree, namely to add to the “circumstances precluding wrongfulness” taken over from the first reading text a provision entitled “Non-compliance caused by prior non-compliance by another State”, which would have justified immediate reciprocal non-performance of international obligations stemming from any source. I regarded such instant reciprocity as an unacceptable step backwards from the – modest enough – limitations developed in the law on reactions to treaty breaches and countermeasures (for a more comprehensive analysis see my Separate Opinion in the ICJ case of the Application of the Interim Accord of 13 September 1995 (The former Yugoslav Republic of Macedonia v. Greece, I.C.J.Reports 2011, pp. 695 – 708).

What I consider to be the decisive step in the direction of including human rights violations into the system of countering “internationally wrongful acts” established by our Articles followed at the Commission’s session in 2000, in the course of its second reading of provisions on the implementation of State responsibility. In traditional, bilateralist, law, the invocation of responsibility, the request for reparation and, if necessary, the enforcement of a return to legality by reprisals/countermeasures, was available only to a State directly injured by a breach. Such direct injury will occur only rarely in case of human rights violations, most of which are committed by a State against its own people, and if it does, it will allow recourse to diplomatic protection. No injury, no responsibility. And here, the Special Rapporteur, followed by the Commission, achieved a great leap forward by allowing the invocation of responsibility not only to (traditionally) injured States (Article 42), but also to “other than injured States” in case of breaches of obligations erga omnes or erga omnes partes (Article 48). If States choose this path, they may claim cessation of the wrongful act, assurances and guarantees of non-repetition and, most importantly, reparation, in a human rights scenario obviously in the interest of the affected individuals. I remember extended thought processes devoted to the question of how to call these “third” States, ending up accepting the  term “other than injured”, correct and bloodless at the same time. There was quite a portion of progressive development embodied in the Article 42/48 distinction and it is thus quite remarkable that the ICJ has been ready to give it judicial blessing in two contentious cases involving human rights, at the first instance where the Court had the possibility to apply the concept,  in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), decided in 2012, and then again in Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (The Gambia v. Myanmar), currently pending –  a landmark example of joint law-making by the Commission and the Court.

Let me finish this brief tour d’horizon by strongly disagreeing with criticism of the 2001 Articles as being old-fashioned and backward looking (unsurprisingly expressed by several US authors), but particularly with the view that the State responsibility end-product does not go far enough in the concern for human rights. The ILC might not have met this challenge in all respects to the full satisfaction of the human rights “community”, but I have the personal impression that it went to the limit of what was acceptable to its “customers”, the member States of the United Nations. This became transparent in the opposition of significant States to the ILC’s original intention of entitling also Article 48 category-States to take countermeasures, which led the Commission to retreat from this idea.

After the ILC had completed its work on State responsibility, I was fortunate to move from Geneva to The Hague.  Looking back at the years I spent in these two cities, I confess that I remember the Commission as the place in which I felt happier and more excited, probably due to my earlier life as a scholar with all its freedoms, particularly the free choice of topics and projects for which I felt passionate. The “humanization” of State responsibility was such a project, a generalist’s dream.