American Journal of International Law, Vol. 96, No. 4 (October 2002), pp. 773-791


In August 2001, the International Law Commission (ILC) adopted its “Draft Articles on the Responsibility of States for Internationally Wrongful Acts,” bringing to completion one of the Commission's longest running and most controversial studies. On December 12, 2001, the United Nations General Assembly adopted Resolution 56/83, which “commend[ed the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.”

The ILC articles address the fundamental questions: when does a state breach an international obligation and what are the legal consequences? Rather than attempting to define particular “primary” rules of conduct, the articles set forth more general “secondary” rules of responsibility and remedies for breaches of a primary rule. Important issues include:

- What is an “internationally wrongful act”?

- When does a “breach” of an international obligation occur?

- When can a state be held responsible for acts (or omissions) of nonstate actors or of another state?

- What circumstances justify otherwise wrongful conduct?

- What must a state do to remedy an internationally wrongful act (render compensation, restitution, satisfaction, etc.)?

- Which states have standing to complain?

- What kinds of countermeasures are permitted and under what circumstances?

At the outset, the ILC's first special rapporteur on state responsibility noted, “[I]t would be difficult to find a topic beset with greater confusion and uncertainty.” And throughout the ILC's consideration of the subject, skepticism and controversy abounded, particularly among those trained in the common law, to whom the abstract treatment of “responsibility,” as such, is unfamiliar. Some see the articles as “a bland gruel not likely to upset the most dyspeptic government official,” others as perhaps the ILC's most important product. Whatever one's view of the articles, however, their adoption by the ILC doubtless represents a significant moment in the continuing development of international law. That is the motivation for this symposium.