ABSTRACT
The ongoing work of the International Law Commission in the area of state responsibility has built upon earlier efforts in this field.10 The general principles are set out in the International Law Commission’s Draft Articles 111 and 212 which read as follows:
International law does not draw distinctions between tortious and contractual liability as pertain in municipal law. However, a distinction is drawn between international delicts and international crimes. This distinction was indicated in Draft Article 19(2) of the 1996 Draft Articles which read as follows:
Draft Article 19(3) then proceeded to indicate acts that might be regarded as international crimes such as aggression, slavery, massive pollution, genocide and the forcible maintenance of colonial domination.13 However, while it may be helpful to distinguish such acts from ordinary delicts, they are all acts already variously prohibited in customary international law and clearly contrary to the United Nations Charter (1945). In any event, such provisions do not appear in the Draft Articles of 2000 where the matter is addressed in more general terms in Draft Art 1214 which reads:
Whether an act gives rise to responsibility is a matter to be judged by international law. Thus, Art 3 of the Draft Articles15 indicates:
Thus any act or omission is to be determined by rules of international law regardless of how the matter may be categorised or classified in a municipal system. Thus Draft Article 2 of the ILC Draft16 refers to ‘conduct consisting of an action or omission’17 which is ‘attributable to the State under international law’ and ‘constitutes a breach of an international obligation of the State’. Further the obligation must exist at a particular point in time so that Draft Art 13 of the ILC Draft stipulates that: ‘An act of state shall not be considered a breach of an international obligation unless the state is bound by the obligation in question at the time the act occurs.’
