The impact and influence of the Articles on State Responsibility on the work of the International Law Commission and beyond

The International Law Commission’s (ILC or Commission) decision, 20 years ago, to suggest the General Assembly (UNGA) to simply “take note” of the draft articles on State Responsibility, instead of recommending their adoption as a treaty or the convening of a diplomatic conference, inaugurated a debate about “codification light”, “the paradox between form and authority” or “non-legislative codification”, to use some expressions from the literature.

As shown below, the decision has had an important impact on the Commission’s works. It also influenced the Sixth Committee’s approach to the outcomes of the Commission’s works, characterized by systematic “technical roll-overs” and postponed action.

The ILC has, partly in reaction to these developments, sought alternative outcomes for its work such as draft conclusions, principles, guidelines, or studies. It is nevertheless important that the Commission continues to contribute towards the formulation of international treaties.

The form of the draft articles and the compromise formula adopted

When the draft articles on State Responsibility were adopted on first reading in 1996, there seemed to be no question that they would eventually result in an international convention (see Special Rapporteur Arangio-Ruiz’s Eighth Report, at paras 28, 35, 43 and 62, and discussion at the Commission’s 48^th Session). But the matter was not settled, and it was brought up again by Special Rapporteur James Crawford on second reading. Crawford favored a different outcome: recommending the UNGA to take note of the draft articles and commend them to States, but avoiding “a lengthy and possibly divisive discussion of particular articles” (Fourth Report, para 26).

When the Commission discussed the issue in 2001, its members were sharply divided (Report at paras 61-67). Some favored a convention. They pointed to the tradition of major ILC drafts being adopted as international conventions and argued that a treaty would give the rules additional certainty, reliability, and binding force, while consolidating a fundamental pillar of international law. In their view, adoption by a UNGA resolution would detract from the ILC’s original intentions and cast doubt on the value of the text.

On the opposite side, others noted the risk of an unratified convention, which could weaken customary international law and result in “reverse codification”; they noted the uncertainty of the effects of such a convention for parties and non-parties, and the dangers posed by possible reservations. Furthermore, a diplomatic conference would involve another lengthy process, likely affecting the sensible balance of the Commission’s text. In contrast, a UNGA resolution would render the Commission’s work an “authoritative study of current rules”.

The views of States were also varied (see here).

Ultimately, the Commission recommended a compromise two-step approach: in the first instance, it recommended that the UNGA take note, and annex the text, of the draft articles in a resolution, with language emphasizing the importance of the subject;  and, at a later stage, that it consider the adoption of a convention on this topic, if appropriate (Report paras 72-73).

Three factors weighted in the final decision of the Commission. First, the International Court of Justice’s reliance on the draft articles before their conclusion in Gabčíkovo-Nagymaros (eg paras 47, 50-53) and Cumaraswamy (para 62), strengthened the argument that the articles would remain relevant even if they were not turned into a treaty.

Second, the precedent of UNGA Resolution 55/153 (2001), which, upon the Commission’s recommendation (here at 20, para 44) took note of the articles on Nationality of Natural Persons in Relation to the Succession of States, and decided to consider them again at a later session.

Third, the absence of dispute settlement provisions in the draft meant that the Commission had more flexibility in selecting the form. The dispute settlement provisions adopted on first reading in 1996 had proved controversial, and the Commission had decided to remove them from the draft. The Commission left it to the UNGA to decide whether to include a dispute settlement mechanism should a convention on the topic be adopted, while drawing the UNGA’s attention to the provisions already drafted.

The UNGA followed the Commission’s recommendation, and on 12 December 2001, adopted Resolution 56/83 taking note of the articles, annexing them to the resolution, commending them to the attention of Governments, and leaving open the question “of their future adoption or other appropriate action”. Ever since, the issue has been back on the agenda of the Sixth Committee every three years, but no decision to move towards the negotiation of a convention has been taken or seems within reach in the near future.

The impact of the two-step approach compromise formula and its influence on subsequent works of the Commission and of the Sixth Committee

Before the adoption of the draft articles on State Responsibility in 2001, the Commission had adopted sixteen sets of draft articles with the recommendation, followed in most cases, to the UNGA to take action towards concluding a convention. This was the case with the projects on: Reduction and Elimination of Future Statelessness (1954); Law of the Sea (1956); Diplomatic Intercourse and Immunities (1958); Consular Intercourse and Immunities (1961); Law of Treaties (1966 and 1982); Special Missions (1967); Representation of States in their relations with international organizations (1971); Prevention and punishment of crimes against diplomatic agents and other internationally protected persons (1972); State Succession in respect of Treaties (1974); Most-Favored Nation Clause (1978); State Succession in matters other than Treaties (1981); Status of the diplomatic courier and the diplomatic bag not accompanied by the diplomatic courier (1989); Jurisdictional Immunities of States and Their Property (1991); Law of the non-navigational uses of international watercourses (1994); and Statute for an International Criminal Court (1994)). In contrast, there were only two topics that were proposed in a different format: the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal (1950); and the Model Rules on Arbitral Procedure (1958).

After 2001, the Commission concluded sixteen topics:

• 4 sets of draft articles were recommended for a convention: Prevention of transboundary damage from hazardous activities (2001); Diplomatic Protection (2006), Protection of Persons in the Event of Disasters (2016); Crimes against Humanity (2019).
• 8 topics resulted in a different format: Conclusions of the Study Group on the Fragmentation of International Law (2006); Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations (2006); Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities (2006); Guide to Practice on Reservations to Treaties (2011); Final report on the obligation to extradite or prosecute (aut dedere aut judicare) (2014); Most Favored Nation clause (2015); Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties (2018); and Draft conclusions on identification of customary law (2018); and,
• 4 topics were further adopted as draft articles, with a recommendation that the UNGA takes note, and considers the possibility of a convention at a later stage: Draft articles on the law of transboundary aquifers (2008); Draft articles on the effects of armed conflicts on treaties (2011); Draft articles on the responsibility of international organizations (2011); and Draft articles on the expulsion of aliens (2014).

The statistics are very clear: after the experience of 2001 with State Responsibility, half of the topics concluded were recommended to the General Assembly for the conclusion of an international treaty, and half of that was subject to the two-step approach recommendation, while the remaining half were subject to a format other than draft articles.

At the same time, only 1 convention has been concluded on the basis of Commission’s draft articles since 2001: the 2004 Convention on Jurisdictional Immunities of States and their Property.

The Sixth Committee, for its part, examines on a periodical basis all other proposals for conventions made by the ILC but postpones their consideration at regular intervals without taking action.

As of 2021, in the current agenda, six topics are being developed as guidelines (Provisional Application of Treaties and Protection of the Atmosphere), conclusions (Peremptory norms of general international law (jus cogens) and General Principles of Law), principles (Protection of the environment in relation to armed conflicts) or in the format of a Study Group (Sea-level Rise in relation to International Law), whereas only two are being prepared as draft articles (Immunity of States Officials from Foreign Criminal Jurisdiction and State Succession in respect of State Responsibility). In these two cases, it is not yet clear whether the Commission will recommend adoption in treaty form.

Regarding the topic of Immunities of State Officials from Foreign Criminal Jurisdiction, the issue of form and the possible need for a compromise are increasingly evident as the first reading is being finalized. Contrary to State Responsibility, a “reverse” compromise might likely be adopted on second reading: namely, to move towards a clear proposal for an international treaty.

It is also worth noting that while the compromise reached for ARSIWA was very much tailored to this project, the approach was then used in 4 other topics between 2008 and 2014 but was not resorted to in the last 2 sets of draft articles completed by the Commission on Protection of Persons in the Event of Disasters (2016) and Crimes against Humanity (2019).

If, on the one hand, the work on State Responsibility has left an indelible mark on the work of the ILC in many aspects, it is not a given that the two-step compromise solution above discussed will be used again soon, at least with regard to the topics that are currently on the agenda and while the Sixth Committee continues its practice of periodical technical roll-overs in respect of proposals for conventions made by the Commission that it has before it.

The future of the International Law Commission’s work

20 years after the adoption of ARSIWA and with the impact and influence that the solution followed by the Commission and the further behavior of the UNGA Sixth Committee have had on the two institutions, it is important that both – individually and jointly – take stock.

There is no doubt that the future and continued relevance of the ILC depends on the topics it chooses, how they are chosen, and the reception of its work by States, international organizations, international courts and tribunals, and other relevant stakeholders.

While the ILC has been seeking alternative outcomes for its work, it is important that it keeps performing its task of codification and progressive development of international law also by drafting articles for future treaties that respond to the needs of States and of the international community.

For that purpose, increased self-reflection on the part of the Commission, but also more dialogue with its “clients” for the identification of relevant topics, i.e. the UN member States in the framework of the Sixth Committee, are of the utmost importance for successful exercises of international multilateral treaty-making and for the United Nations to continue to play its fundamental role of a global legal forum and for the continued development of international law.