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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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