The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority

Abstract

The adoption by the International Law Commission in 2001 of its Articles on State Responsibility is an achievement that presents a paradox. This essay is about the form and authority of the Articles, and the paradox by which they could have more influence as an ILC text than as a multilateral treaty. This essay addresses the questions of what is the appropriate authority to be given an ILC text, why an ILC text may be given undue influence (particularly by arbitral tribunals) and how an arbitral tribunal should approach interpreting and applying the ILC Articles on State Responsibility. This essay proceeds by first situating the ILC's work on state responsibility within the context of the codification movement generally and of concerns regarding that movement. The essay second discusses the ILC practice of undertaking its work in the form of a treaty rather than, for example, a narrative. It analyses the final debate in the ILC as to the form and authority of its project on state responsibility whereby the ILC chose to maintain the form of a treaty, but not recommend that it actually be the basis of a treaty, in significant measure because the ILC thought it would have more influence in that form. Similarly the U.N. General Assembly's subsequent acceptance of the ILC's approach is discussed. Given the ILC and General Assembly actions, the essay third considers how this scholarly commentary on state responsibility, written as though it were a treaty, should be approached, tested and elaborated upon by future arbitral panels and courts. To address these questions, the essay in its concluding sections considers the authority of the ILC's work as a source of international law, and examines how the treaty form can give rise to problems of false concreteness and false consensus, and how the interpreter may seek to overcome such potential problems.