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29 Harv. Int'l. L. J. 1 (1988)
State Responsibility and the Unmaking of International Law

handle is hein.journals/hilj29 and id is 11 raw text is: VOLUME 29, NUMBER I, WINTER 1988 State Responsibility and the Unmaking of International Law Philip Allott* For almost four decades the International Law Commission has been working on the topic of state responsibility. The Commission's work raises fundamental questions not only about the state of contemporary international law but also about the existence and functioning of the Commission itself. There is reason to believe that the Commission's long and laborious work on state responsibility is doing serious long- term damage to international law and international society. The International Law Commission (ILC)1 has chosen to apply its characteristic working method to the topic of state responsibility. It labors to produce semifinished draft articles. These are transmitted to governments. Government comments are discussed first in the Com- mission and then in the Sixth (Legal) Committee of the United Nations General Assembly. The Sixth Committee either holds negotiations itself, acting in effect as an international conference, or asks the UN Secretary General to convene a special conference. The draft articles finally emerge as a convention subject to signature and ratification. If and when the convention takes effect, it has the binding force of a treaty for the contracting parties. It also becomes a major element in the state practice which forms the basis of customary international law, in the debate among lawyers and decisionmakers about the present state and future course of international law, and in the legal advice given to participants in international society. * Fellow of Trinity College, University of Cambridge. 1. The United Nations General Assembly created the International Law Commission and adopted its governing statute on Nov. 21, 1947 by G.A. Res. 174(11), U.N. Doc. A/519, at 105 (1947), reprinted in 42 AM. J. INT'L L. Supp. 1 (1948). The Statute states that the International Law Commission shall have for its object the promotion of the progressive development of international law and its codification. Statute of the International Law Com- mission, art. 1, id. at 105, reprinted in 42 AM. J. INT'L L. SUpP. 1, 2 (1948). The Commission consists of 34 members who shall be persons of recognized competence in international law. (The number of members was increased in 1961 and again in 1981.) Statute of the International Law Commission, art. 2, id. at 105, reprinted in 42 AM. J. INT'L L. Supp. 1, 2 (1948). The Statute does not oblige members to act independently of the governments of their national states. It provides for the Commission to produce draft articles in the case of codification (art. 20) but not in the case of progressive development (art. 16). On the discussion leading up to the establishment of the Commission, see Liang, The General Assembly and the Progressive Devel- opment and Codifiration of International Law, 42 AM. J. INT'L L. 66 (1948).

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