ILC Articles on State Responsibility

Introduction

To argue that the ILC Articles on State Responsibility (ILC Articles) are the Napoleonic Code of international law is to say that they represent an exercise in comprehensive codification and unification of the principles of state responsibility in international law. The essay draws on critical academic commentary on ILC Articles to understand whether the ILC Articles led to the unification, codification and reformation of the principles of state responsibility.

ILC Articles on State Responsibility as the Napoleonic Code of international law

Before this essay delves into critical discussion on the ILC Articles, it would be useful to set the context and background of the Napoleonic Code in order to identify the latter’s principal characteristics that lend justification to the argument that the ILC Articles are like the Napoleonic Code.

The Code Napoleon or the Napoleonic Code refers to the French Civil Code of 1804, which led to the unification of the civil law. It was an exercise which saw four eminent jurists draft a comprehensive civil code with the aim to providing a clearly written and accessible law that could replace the fragmented feudal laws then existing for the regulation of civil laws. The principal characteristics of the Napoleonic Code are: written form, consolidation, unification, and reformation of the laws. The Napoleonic Code was the first of its kind in Europe; it was not only legislation, but a comprehensive rewriting of the existing rules to make it more rational, clearer and accessible.

Proceeding from this brief overview of the Code Napoleon, it can be summarised that in order to justify the statement that the ILC Articles are the Napoleonic Code of international law, it is essential to establish that the ILC Articles present a similar exercise in codification, unification and rationalisation of the international law of state responsibility.

The ILC Articles are the result of efforts of the ILC (International Law Commission), ILC groups like the Study Group on State Responsibility of the International Law Association (ILA), the Panel on State Responsibility of the American Society of International Law, and different government officials. Under these efforts the Draft Articles were published under the aegis of the United Nations.

The international law on state responsibility prior to the adoption of the ILC Articles, presented a state of underdevelopment because the principles of state responsibility in international law were fragmented and there was no unification of practice in this area, even under the customary law. Prior to the adoption of the ILC Articles, the term state responsibility itself was used only with reference to the responsibility of the State owed for the injury to aliens in its territory. The principles of state responsibility at this point related to issues like attribution and remedies for injuries

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1. Alain Levasseur, ‘Code Napoleon or Code Portalis’ (1968) 43 Tul. L. Rev. 762.
2. Robert B. Holtman, The Napoleonic Revolution (Baton Rouge: Louisiana State University Press, 1981).
3. Ibid.
4. Ibid.
5. David D Caron, ‘The ILC articles on State responsibility: The paradoxical relationship between form and authority’ (2002) 96(4) American Journal of International Law 857.
6. ILC Draft on State Responsibility (Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, Official Records of the General Assembly, Fifty-first Session, Supplement No. 10 (A/51/10).
7. Y Matsui, ‘The Transformation of the Law of State Responsibility’ (1993) 20 Thesaurus Acroasium 1.
8. Ibid.

caused to aliens as well as certain rights and duties of states, including the right of diplomatic protection. Efforts to codify this fragmented and sparse body of principles of state responsibility, were also made by the League of Nations. However, these efforts too were focussed on the principles related to responsibility of states for injuries to aliens and that too in limited contexts, such as, imputation.

Consequently, the issue of codification of principles of state responsibility was one that was prioritised even in the early days of the United Nations, with the ILC making its report to the General Assembly on this issue in 1949 itself.

Furthermore, in a departure from the earlier conceptualisation of state responsibility as being largely related to injury to aliens, the ILC early on distinguished between state responsibility and treatment of aliens. In the context of the present essay, where one of the principal questions is whether the ILC Articles were concerned with clarifying the law and making it more accessible, it would be pertinent to note that the notion that the existing law of the time was uncertain and unclear was recognised early on with García Amador noting that "It would be difficult to find a topic beset with greater confusion and uncertainty” as compared to the international principles related to state responsibility. Therefore, it can be inferred that just like the civil law of France being in a state of confusion and fragmentation prior to the Code Napoleon, the international law of state responsibility too was beset by the same confusion and disarray. The question is whether it would be justified to argue that the ILC was able to achieve the clarity, unification and comprehensive codification of principles of state responsibility in a similar way as the Napoleonic Code was able to do for the civil law. The ILC Articles are considered to be sufficiently general in nature so that they are able to encompass different and many types of international obligations. The ILC Articles define state responsibility for internationally wrongful acts as arising where an internationally wrongful act is attributable to the state under international law and constitutes a breach of an internationalrnationallyational obligation of the state. The General

Commentary to the ILC Articles specifies that the aim of the articles is to “formulate, by way of codification and progressive development, the basic rules of international law concerning the responsibility of States for their internationally wrongful acts.” The commentary also notes that the focus of the Draft Articles is on the secondary rules of State responsibility which are related to the establishment of the general conditions for wrongful actions or omissions and their legal consequences; whereas the primary rules are not defined as this would require the restating of the substantive customary and conventional international law.

It may be mentioned that the mandate of the ILC was to codify and progressively develop international law, as a way of mirroring the General Assembly's authority under the UN Charter, and that this mandate related to the task of restating custom for making it more precise and certain. There are two tasks of the ILC within the

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9. Ibid.
10. Ibid.
11. ILC, Report to the General Assembly, (1949) Yearbook of the International Law Commission 227.
12. ILC, 1949 Year Book of the International Law Commission 46, 49-50, UN Doc. A/CN.4/SER.A/1949.
13. F. V. García Amador, ‘First Report on International Responsibility’ UN Doc. A/CN.4/SER.A/1956/Add.1 (1956) 2 Yearbook of the International Law Commission 173, 175.
14. James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002).
15. The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 2001.
16. Ibid.
17. UN Charter, Article 13(1) (a), the Assembly created the ILC via Resolution 174 (II) of Nov. 21, 1947.

mandate of development of international law, which are codification and progressive development, and these tasks are not the same in nature and scope: codification of international law relates to the work of experts who enunciate law which exists independently of articulation whereas the task of progressive development of the law relates to legislation) and this comes within the scope of governmental negotiation. The ILC has played a central role in codification as well as progressive development of the law of state responsibility. Indeed, the ILC had identified the task of codification and progressive development of international law of state responsibility as one of the fourteen tasks that it has prioritised.

It may be noted that the ILC has been successful in clarifying the law around state responsibility by drafting the articles that provide the secondary rules of State responsibility which are related to the establishment of the general conditions for wrongful actions or omissions and their legal consequences. However, this is not sufficient to equate the ILC Articles with the Napoleonic Code because the latter has binding effect whereas the former is not conceptualised as a treaty or convention. To put it another way, the Napoleonic Code is a source of law, whereas the ILC articles and commentary are considered to be evidence of source of law and under Article 38 (1) of the Statute of the International Court of Justice, as a "subsidiary means for the determination of rules of law." In other words, the ILC Articles may be equated with the writings of highly qualified publicists in the context of the former’s standing as a source of international law for the purposes of the International Court of Justice and not as direct source of law which is found in treaties and customary international law. This argument was made by Parry as well as Brownlie.

Caron argues that it is important to recognise that the ILC articles are not a source of law in themselves because if they are accepted as such then the arbitrators can “defer too easily and uncritically to them.” He himself provides some evidence of this in the attribution practice of the Iran-United States Claims Tribunal, where the latter just accepted the principles in the ILC Articles as given and without any critical appreciation. However, in the context of this essay, what Caron’s observation provides is an inference that there is a high degree of acceptance of ILC Articles as source of law and not merely as evidence of source of law. In other words, even if the ILC Articles are not meant to be binding, they do shape the interpretation of the law and in that sense there is some justification for supposing that the ILC Articles have led to the unification of the law on state responsibility. It may be mentioned here that the ILC Articles have been cited by the International Court of Justice (ICJ) in Gabčíkovo-Nagyamaros Project. In this case, the court referred to the principles codified by the ILC and observed that these represented the “most recent and authoritative attempt to codify the rules relating to countermeasures” whereas some of the provisions “may be viewed as not merely codifying, but also developing

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18. David D Caron, ‘The ILC articles on State responsibility: The paradoxical relationship between form and authority’ (2002) 96(4) American Journal of International Law 857, 860.
19. Ibid.
20. 1949 Y.B. Int'l L. Comm'n 281, UN Doc. A/CN.4/SER.A/1949.
21. David D Caron, ‘The ILC articles on State responsibility: The paradoxical relationship between form and authority’ (2002) 96(4) American Journal of International Law 857, 867.
22. Clive Parry, The Sources And Evidences Of International Law (Manchester University Press 1965).
23. Ian Brownlie,Principles Of Public International Law (Oxford University Press 1979).
24. David D Caron, ‘The ILC articles on State responsibility: The paradoxical relationship between form and authority’ (2002) 96(4) American Journal of International Law 857, 867.
25. Ibid.
26. Gabčíkovo-Nagyamaros Project (Hungary/Slovakia) 1997 I.C.J. 7.

customary rules relating to countermeasures (or reprisals).” It is important to emphasise the word ‘authoritative’ that is used by the International Court of Justice in reference to the ILC Articles as this word clearly demonstrates that in the opinion of the International Court of Justice, the ILC Articles present an authoritative source of law on state responsibility. Therefore, regardless of the fact that the ILC Articles were not conceived or presented as a treaty or convention, the ICJ views this as an authoritative source.

Another point to consider is whether the ILC Articles present a comprehensive code on state responsibility to justify calling it a Napoleonic Code of international law. At this point, it may be mentioned that as expressly recognised in Article 55, lex specialis is not excluded as Article 55 provides that the articles do not apply “where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law”. This would suggest that the ILC Articles are not comprehensive and do not apply to cases where special rules of international law are applicable even where a state has committed an internationally wrongful act. Thus, where the ILC Articles do contain the lex generalis, they do not contain the lex specialis. At the very least then, it can be argued that the ILC Articles do not present a comprehensive code on state responsibility and is more focussed on the abstract and general principles of international law of state responsibility and not all the principles.

The ILC Articles and commentary explains that the articles are concerned with the whole field of State responsibility and are not limited to breaches of obligations of a bilateral character for which purpose the States are free to make specific laws and rules as provided in Article 55. This however, ought not to mean that the ILC Articles lack the quality to be considered a code because in the context of secondary principles (to which the ILC Articles are related), the articles are fairly comprehensive and contain principles related to a wide variety of acts and omissions that can be considered to be breaches of state responsibility generally in international law. The ILC has also provided the clarity and accessibility to the law on state responsibility which hitherto was missing because the law was fragmented and contained in a number of sources, which included customary rules as well as decisions of courts. At the same time, it cannot be said that the ILC Articles do not contain primary rules at all because there are some inclusions of normative content in the ILC Articles as noted by Nissel. He writes that while it was possible to argue that the ILC Articles lacked legitimacy discourse if they were entirely composed of secondary norms and devoid of normative content, it is not appropriate to make that argument now because there are some primary norms in the ILC Articles. An example is Article 50, which relates to obligations not affected by countermeasures. Thus, where the ILC appears to have ignored primary rules for the greater part, it did include some primary and normative content as well. Article 50 itself provides that there are certain obligations the performance of which may not be affected adversely by

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27. Ibid, [227].
28. The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 2001.
29. Tzvika Nissel, ‘The ILC Articles on State Responsibility: Between Self-Help and Solidarity’ (2006) 38 New York University Journal of International Law and Politics 355.
30. Ibid.
31. Ibid.

countermeasures and these obligations have to be respected by the injured State in its relations with the responsible State.

ILC Articles do appear to provide an authoritative source of law of state responsibility. Indeed, the ILC itself did not consider that it is not making binding law on state responsibility as noted by Nissel who argues that 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.” Furthermore, the ILC Articles go further than restatement of existing law, and do include the task of progressive development of international law, which means that the ILC Articles can be used for the development of the principles of State responsibility and countermeasures. Importantly, the ILC Articles are not silent on the issue of enforcement of the law, which is one of the important elements of normative norm itself. However, it has been noted that the Article 54 of the Articles (which relates to enforcement), is considerably different and watered down as compared to its 2000 predecessor, which was “more clearly about enforcement (i.e., result-oriented)”. The 2000 draft provided that the third-party States could take solidarity measures when an injured State makes a request or to ensure the cessation of the breach and reparation in the interests of the victims. Article 54 provides that the right of any State to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation, is not prejudiced.

The issue of the ‘packaging’ of the ILC Articles has been raised as an interesting aspect of understanding how the ILC itself positions the nature of the articles: are these in the nature of Convention principles, principles, guidelines or report? It is notable that the ILC sent the articles to the General Assembly for consideration as Draft Articles, and that the General Assembly published these as articles and commentaries, which means that at least in the context of packaging, the ILC Articles were not imagined or conceptualised as convention or treaty. It may also be noted here that the ILC itself groups projects as progressive development projects and codification projects; in the context of state responsibility, the ILC has noted that as many of the articles are based on limited practice, it would be more appropriate to consider that this is a progressive development approach and not a codification approach and that the provisions of the draft articles did not have the same authority as the corresponding provisions on State responsibility. At the same time, this means that because progressive development can only be done through convention route (as many of these principles have not come to be applied to the States that they address), then the General Assembly can be the prime initiator of such proposal of codification. Thus, the Articles have been called ‘soft law’ “cherished by the supporters of the progressive development of international law.”

Nevertheless, it can be said that the ILC Articles exemplify the codification of the general rules of state responsibility because these secondary principles have not been

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32. Ibid, 356.
33. Ibid.
34. Ibid, 362.
35. Sean D Murphy, ‘Codification, Progressive Development, or Scholarly Analysis? The Art of Packaging the ILC’s Work Product’ in Responsibility of International Organizations (Brill Nijhoff 2013).
36. Ibid, 30.
37. Ibid.
38. Gilbert Gulliame, ‘Overview of Part One of the Articles on State Responsibility’ in James Crawford, Alain Pellet, Simon Olleson, and Kate Parlett (eds.), The law of international responsibility (Oxford University Press 2010) 188.

placed in a written document. Furthermore, ILC Articles have also contributed to the clarification and systemisation of the law of state responsibility in international law. This can be said because the ILC has brought under one document the different strands of general principles on state responsibility by codifying the existing rules as well as leaving scope for progressive development of state responsibility law. Importantly, the ILC Articles have been considered to be binding by arbitral tribunals as well as ICJ. The ICJ has referred to the ILC Articles in a number of cases; in Prosecutor v. Radislav Krstić "Srebrenica-Drina Corps” where one of the questions considered by the ICJ was whether the genocide at Srebenica was attributable to Serbia as it was committed by a State agency. The ICJ specifically considered certain ILC Articles and noted that these had the character of customary international law and were applicable; in particular Articles 4, 8, 14, and 18 were referred to by the ICJ. In Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the ICJ relied on its own jurisprudence and also ILC Article 8 to assess whether the responsibility could be attributed to the State. This suggests that the ILC Articles have led to the unification of the law on State responsibility.



Conclusion

Although the ILC Articles are focussed on the general principles of state responsibility and not the lex specialis, it does provide a comprehensive code on the law of state responsibility. The ILC Articles codified and clarified the law of state responsibility and are considered to be an important contribution to the modern law of state responsibility. Because the ILC took an approach that led to both the codification of the law as well as its progressive development, the ILC has managed to achieve the purposes of codification as well as reformation of the law to some extent. The ILC Articles have been adopted by the General Assembly, and have also found recognition in ICJ decisions related to attribution of responsibility to states for internationally wrongful acts. Although meant to be soft law and evidence of source of state responsibility law rather than being a source of law itself, the ILC Articles can be considered to be the Napoleonic Code of international law of state responsibility considering that it is the most extensive and comprehensive enunciation of principles of state responsibility.

Cases

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) ICJ GL No 91, [2006] ICJ Rep 595.

Gabčíkovo-Nagyamaros Project (Hungary/Slovakia) 1997 I.C.J. 7. Prosecutor v. Radislav Krstić "Srebrenica-Drina Corps", case IT-98-33.

Books

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39. Robert Kolb, The international law of state responsibility: an introduction (Edward Elgar Publishing 2017).
40. Ibid.
41. Prosecutor v. Radislav Krstić "Srebrenica-Drina Corps", case IT-98-33.
42. Ibid.
43. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) ICJ GL No 91, [2006] ICJ Rep 595.

Brownlie I, Principles Of Public International Law (Oxford University Press 1979). Crawford J, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002).

Gulliame G, ‘Overview of Part One of the Articles on State Responsibility’ in James Crawford, Alain Pellet, Simon Olleson, and Kate Parlett (eds.), The law of international responsibility (Oxford University Press 2010).

Holtman RB, The Napoleonic Revolution (Baton Rouge: Louisiana State University Press, 1981).

Kolb R, The international law of state responsibility: an introduction (Edward Elgar Publishing 2017).

Murphy SD, ‘Codification, Progressive Development, or Scholarly Analysis? The Art of Packaging the ILC’s Work Product’ in Responsibility of International Organizations (Brill Nijhoff 2013).

Parry C, The Sources And Evidences Of International Law (Manchester University Press 1965).

Journals

Caron DD, ‘The ILC articles on State responsibility: The paradoxical relationship between form and authority’ (2002) 96(4) American Journal of International Law 857.

Levasseur A, ‘Code Napoleon or Code Portalis’ (1968) 43 Tul. L. Rev. 762. Matsui Y, ‘The Transformation of the Law of State Responsibility’ (1993) 20 Thesaurus Acroasium 1.

Nissel T, ‘The ILC Articles on State Responsibility: Between Self-Help and Solidarity’ (2006) 38 New York University Journal of International Law and Politics 355.

Reports

García Amador FV, ‘First Report on International Responsibility’ UN Doc. A/CN.4/SER.A/1956/Add.1 (1956) 2 Yearbook of the International Law Commission 173.

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