Due Diligence in the History of the Codification of the Law of State Responsibility

Abstract

Abstract This chapter sheds light on the role that due diligence played throughout the drafting history of the International Law Commission’s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). It argues that the narrative that due diligence developed as a notion in the realm of the so-called ‘secondary rules’ of the law of state responsibility—before then later migrating into the domain of ‘primary rules’—needs to be qualified to some extent. An exegesis of the mostly overlooked work of the first Special Rapporteur on State Responsibility of the ILC, F. V. García-Amador, shows that due diligence was already a central notion of this field before the ILC took the turn towards redefining state responsibility as comprising only ‘secondary rules’. The chapter demonstrates that, despite the ILC decision to define the notion of state responsibility as objective, not all traces of subjectivity—to which the category of due diligence belongs—disappeared from the work of the ILC.